NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD R.; SUZANNE R.; LILLIAN R.,

FKA Jon,

Plaintiffs-Appellees,

v.

PREMERA BLUE CROSS BLUE

SHIELD OF ALASKA, 

Defendant-Appellant.

No. 19-35475

D.C. No. 2:17-cv-01041-JLR

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted July 8, 2020

Seattle, Washington

Before: CLIFTON, D.M. FISHER,**and M. SMITH, Circuit Judges.

Defendant-Appellant Premera Blue Cross Blue Shield of Alaska appeals the

district court’s judgment in an action brought by Plaintiffs-Appellees Todd R.,

FILED

SEP 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable D. Michael Fisher, United States Circuit Judge for the

U.S. Court of Appeals for the Third Circuit, sitting by designation.
Suzanne R., and Lillian R. to recover medical benefits under an employee welfare

benefits plan (Plan) subject to the Employee Retirement Income Security Act. We

vacate and remand.

Although we do not believe the district court is in a better position than

ourselves to review the written administrative record, we need not resolve the

parties’ disagreement as to our standard of review. Even under a deferential

standard, the decision on the merits was clearly erroneous, see Silver v. Exec. Car

Leasing Long-Term Disability Plan, 466 F.3d 727, 732-33 (9th Cir. 2006), and the

district court’s departure from the principle of party presentation was an abuse of

discretion, see United States v. Sineneng-Smith, 140 S. Ct. 1575, 1578 (2020).

Plaintiffs seek reimbursement of their payments to Elevations Residential

Treatment Center, a facility in Utah, for Lillian’s around-the-clock behavioral

health care from May 1, 2014 to June 21, 2015. Premera, the Plan administrator,

denied coverage for lack of medical necessity, finding that Lillian showed none of

the six risk factors under the “Residential Acute Behavioral Level of Care, Child or

Adolescent” policy (Medical Policy) during the coverage period. That

determination was affirmed at each level of administrative review. On de novo

review, the district court disagreed, finding Lillian’s treatment medically necessary

based on the Medical Policy’s sixth factor: “Patient has currently stabilized during

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inpatient treatment stay for severe symptoms or behavior and requires a structured

setting with continued around-the-clock behavioral care.”

The district court crafted that theory sua sponte. At no point below had

Plaintiffs argued, or even “so much as hint[ed],” Sineneng-Smith, 140 S. Ct. at

1580, that any Medical Policy factors had been satisfied. Rather, throughout the

administrative review process, and in their pleadings and moving papers before the

district court, Plaintiffs advocated for the use of less demanding guidelines to

assess medical necessity. Even after the district court issued a scheduling order

instructing the parties to address the Medical Policy’s sixth factor at their hearing,

Plaintiffs still did not advance the theory on which the district court relied.

On appeal, Premera contests the finding that the sixth provision applied to

Lillian’s circumstances by challenging the district court’s interpretation of the

terms “inpatient treatment stay” and its finding that Lillian was admitted “for

severe symptoms.” Premera also challenges the district court’s finding that Lillian

“require[d] a structured setting with continued around-the-clock behavioral care”

from May 1, 2014, to June 21, 2015. Based on the evidence, we conclude that

these findings were clearly erroneous.

For example, in finding Lillian’s treatment medically necessary, the district

court relied on Dr. Laura Brockbank’s February 2014 psychological evaluation, in

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which Dr. Brockbank “strongly recommended” that Lillian “complete the

program” at Elevations. However, there is no evidence to suggest that this

recommendation was aligned with any medical necessity standard. The basis given

for Dr. Brockbank’s recommendation significantly departs from the Medical

Policy, which states that a patient may be discharged from residential care to a

lower level if, among other things, the patient “has not recently made a suicide

attempt or act of serious harm to self” and has lacked a “current plan for suicide or

serious harm to self for at least 24 hours.”

The district court found support for Dr. Brockbank’s recommendation

because of Lillian’s prior “history of running away and suicidal ideation” and

because in June 2014, Lillian reported an urge to self-harm and Elevations staff

briefly (for one day) placed her on self-harm precautions. Viewed in light of the

full record, however, that evidence did not meet Plaintiffs’ burden to show

Lillian’s medical need for around-the-clock monitoring and confinement from May

2014 to June 2015.

Under the principle of party presentation, courts must presume “that parties

represented by competent counsel know what is best for them, and are responsible

for advancing the facts and argument entitling them to relief.” Sineneng-Smith,

140 S. Ct. at 1579 (alteration omitted) (quoting Castro v. United States, 540 U.S.

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375, 386 (2003) (Scalia, J., concurring in part and concurring in the judgment)).

That presumption naturally applies all the more in a case such as this, involving a

specialized area of civil law and competent, highly experienced counsel on both

sides. See id. Out of a concern for fairness, we do not reverse the decision below

but instead vacate and remand for resolution of the party-presented controversy.

See id. at 1581-82.

Each party to bear its own costs.

VACATED and REMANDED.

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