### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10458

NANCY KOEHLER, Plaintiff - Appellant
v. AETNA HEALTH INC, Defendant - Appellee

Appeal from the United States District Court for the Northern District of Texas

Before REAVLEY, HAYNES, and GRAVES, Circuit Judges. REAVLEY, Circuit Judge: Plaintiff-Appellant Nancy Koehler appeals t h e d istrict court’s summary judgment dismissing her suit to recover he a l t h i n surance benefits under an employee benefits plan governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461. Defendant-Appellee Aetna Health Inc., a Texas health mai n t e n a n c e organization (“HMO”), provides and ad m i n i s t ers the plan’s health insurance benefits under an agreement giving Aetna discretion to interpret the plan’s ter m s
. Aetna refused to reimburse Koehler for c a r e s h e received from a specialist outside of the Aetna HMO to whom she had been referred by a physician in the HMO. Aetna denied her claim because the referral was not pre-authorized by Aetna. The district court found U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May31 , 20 12 Lyle W . Cayce Clerk Case: 11-10458 Document: 00511872682 Page: 1 Date Filed: 05/31/2012No. 11-10458

as a matter of law that Aetna did not abuse its discretion in denying coverage. We find that the plan is ambiguous and the need for pre-authorization was not clearly stated in Aetna’s summary d e s c r i p t i on of the plan. And under the circumstances of this case it cannot be said as a matter of law that Aetna did not abuse its discretion in denying coverage. We REVERSE the district court’s j u d g m e n t and REMAND the case for further proceedings. I. Standard of Review We review a summary judgment de novo , applying the same standards as the district court. Trinity Universal Ins. Co. v. Employers Mut. Ca s
. Co
. , 592 F.3d 687, 690 (5th Cir. 2 0 1 0). Summary judgment should be affirmed “if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” U.S. ex rel. Jamison v. McKesson Corp. , 649 F.3d 322, 326 (5th Cir. 2011).

II. Background and Proceedings Below Koehler suffered from chronic slee p apnea. In 2007, her primary care physician in the HMO referred her to Dr. Raj Kakar, another doctor in the HMO. After attempting various treatments, Dr. Kakar concluded that Koehler should

us e a d ental device designed to prevent her airway from closing during sleep. After consulting with her primar y c a re physician, Dr. Pedro Checo, Dr. Kakar referred Koehler to a specialist outside the HMO, Dr. Marcus Whitmore. After the May 27, 2009 referral, Dr. Whitmore fitted Koehler for the dental device on June 2, 2009. The b i ll for his services was $2,300. Aetna denied coverage for those charges, and Koehler pursued Aetna’s internal appeals process. At Koeh l e r’s request, Dr. Kakar wrote a letter to Aetna, dated February 10, 2010, in which he asked Aetna for a retroactive referral directing Koehler to Dr. W h i t m o r e f

or the device fitting. Dr. Kakar stated that “[w]e were and are
2 Case: 11-10458 Document: 00511872682 Page: 2 Date Filed: 05/31/2012No. 11-10458

unaware of any Aetna Participating Provider as of May 27, 2009, who could have provided the device.” Aetna upheld its initial decision denying Koelher’s claim. Aetna cited the absence of pre-authorization for Dr. Whitmore’s services, explaining in its denial letter t h a t “services provided by nonparticipating providers require a referral f r o m a n Aetna contracted provider and a prior approval by Aetna Patient Management Department.” 1 Koehler filed suit in state court on April 20, 20 1 0

. S h e seeks to recover under 29 U.S.C. § 1132, which permits a plan beneficiary to bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan” 29 U.S.C. § 1132(a)(1)(B). Aetna removed the case to federal court, and sought summary judgment on the ground t hat it “correctly denied Koehler’s claim for benefits because the Plan excludes out-o f

- n e twork services unless such services are pre-authorized.” The district court granted summary 2 judgment for Aetna, and Koehler filed this appeal. The parties agree that the relevant plan provisions are found in the plan’s “Certificate of Coverage” (“COC”), which sets forth the plan’s health insurance b e n e f i t s. However, in addition to appearing in the plan, the COC’s text a l s o constitutes the “summary plan description” which ERISA requires plan administrators to provide to participants and beneficiaries. Thus, although a 3

The let ter cit es tw o othe r bas es for denyi ng the clai m, but Aetna did not rely on thes e 1 in its m oti on fors umm ary judgm ent.
Fed eral jur isd ict ion is bas ed on 28 U .S .C. § 1331 and 29 U .S .C. § 1132( e). 2
Title 29, Un ite d Sta tes Code , § 1021( a)( 1) requ ires that a plan adm inis tra tor “s hall 3
caus e to be fur nis hed in acc o r danc e wi th se cti on 1024(b) of [Tit le 29] to each par tic ipan t cover ed unde r the plan and to ea c h b e n efi ciar y wh o is rec eiving benef its unde r the plan

. . . a sum mar y plan des cri pt io n des cri bed in se cti on 1022( a)( 1)

. . . .” 29 U. S. C. § 1021( a)( 1). Sec tio n 1024(b)( 1) st ates that “[ t] he adm inis tra tor sha ll fur nis h to each par tic ipan t, and each benef icia ry rec ei v i n g b e nef its unde r the plan , a cop y of the sum mar y plan des cri pt ion

. . . .” Aetna pr oduc ed a cop y of the COC in res pons e to Ko ehler ’s requ es t for a cop y of “th e 3 Case: 11-10458 Document: 00511872682 Page: 3 Date Filed: 05/31/2012No. 11-10458

plan summary is a separate document from the plan its e l f, in this case the summary’s text is simply a verbatim copy of the underlying plan provisions. We 4 now relate the provisions relevant to this case. Before coverage begins, the COC requires an insured to select a participating provider to be his “ Primary C a r e Provider ,” or “ PCP .” The 5 benefi t s s c h e m e described in the COC contemplates that nearly all of an insured’ s m e d i c a l care be provided by physicians in the HMO, at the direction

o f t he insured’s PCP. The plan does, however, provide limited coverage of services from outside providers. That coverage is addressed in Subsection H of the “HMO Procedure” section: H. Out-of-Network Services If the Member’s PCP is part of a practi c e g r o u p o r association of Health Profe s s i onals and Medically Necessary Covered Bene f i t s a r e n o t available within the PCP ’s limited provider network, the Member has the r i g h t to a Referral to a Participating Provider outside the PCP ’s limited provider network. If Medically Necessary Covered Benefits are not available from Participating Providers , HMO will allow a Referral to a non-participating Provider . The following apply: 1. The request must be from a Participating Provider

.

sum mar y plan des cri pt ion app lica ble to [he r] clai m. ” Al s o , Aetna conc ede s in its app ellat e brie f that the regula tio ns governi ng the wr itin g and for mat ting of sum mar y plan des cri pt ions app ly t o t he COC.
Sum mar y plan des cri pt ions “p rovid e com mun icat io n wi th b en ef ic iari es ab ou t th e pl a n , 4 but

. . . do not them se lves cons tit ute the ter ms of the plan .” CIGN A Corp

. v. Am ar a , 131 S. Ct. 186 6, 1878 (201 1).
Man y ter ms in the COC are pr inte d in bold type fac e. The COC’ s introd uct ion st ates 5 that term s “ap pea r[ ing] in boldt ype wi th init ial cap italle tte rs ” have the m eanings set fort h in the COC’ s “D efi niti o n s ” s e c t i on. We note , how ever, that mak ing se nse of the COC’ s pr ovis ions so me tim es requ ires dis regar ding that i nst ruc tio n. For exam ple , Subs ect ion H of the “H MO Proc edur e” se cti on sp eak s of “a Re fe rr al to a non- par tic ipat ing Pr ovider ,” wh ich is a cont rad ict ion in ter ms if one app lies t h e C O C ’ s def init ion of “ Re fe rr al ” as “[ s] pec ifi c dir ect ions or ins tru cti ons
. . . that dir e c t a M e m be r to a Parti cip ating Pro vide r for Medic ally Nec ess ary c are” ( em phas is add ed)

. 4 Case: 11-10458 Document: 00511872682 Page: 4 Date Filed: 05/31/2012No. 11-10458

2. Reasonably requested documentation must be received by HMO

. 3. Before HMO denies a Referral , a review will be conducted by
a Specialistof the same or similar specialty as the type of Provide r to whom a Referral is requested. 4. The Referralwill be provided within an appropriate time, not to exceed five business days, based on the circumstances and the Member ’s condition. 5. The Membershall not be required to change his or her PCP or Participating Specialistto receive Medically Necessary Covered Benefits that are not available from Participating Providers

. 6. HMO will reimburse the non-participating Providerat the usual and customary or an agreed upon rate, less the applicable Copayment(s)

. 6 A n u m b e r o f provisions in the COC address pre-authorization. On the COC’s first page are the words “IN SOME CIRCUMSTANCES, CERTAIN MEDICAL SERVICES ARE NOT COVERED OR MAY REQUIR E P R E

- AU THORIZATION BY HMO.” Subsection J of the “HMO P r o c e d ure” section is titled “PreAuthorization.” That subsection states, “Certain services and supplies under this Certificate may require pre-authorization b y H M O t o d e t e r m i n e if they are Covered Benefits under this Certificate .” A separate section of the COC, ti t l e d “Medically Necessary Covered Benefits,” includes several subsections devoted to p a rticular categories of medical trea t m e n t

. Several of these include explicit statements that the particular service requires pre-authorization. Notable among these provisions is language specifically requir i n g pre-authorization for services rendered pursuant to a standing referral to a specialist inside or outside of the HMO. 7

We w ill ref

er to this p rovis ion below s im ply as “Su bse cti on H. ” 6
The s tand ing r efe rra l p aragr aph read s: 7
If a Mem be r requ ires ongoing car e fr om a Specialis t , the Mem be r may re ceive 5 Case: 11-10458 Document: 00511872682 Page: 5 Date Filed: 05/31/2012No. 11-10458

Also notable is the specifically stated pre-authorization requirement for second opinions from outside providers. The part i es agree, however, that Dr. 8 Whitmore’s services did not t a k e the form of a second opinion and were not provided pursuant to a standing referral. Subsection I of the COC’s “General Provisions” section disavows liability for any service from a non-participating provider without “prior arrangements . . . made by HMO ”: Except in cases of Med i cal Emergency or Urgent Care , or as otherwise provided in this Certificate, services are available only from Participating Providers

. HMO shall have no liability or obligation whatsoever on account of any service or benefit sought or received by
a Member from any non-par t i c ipating Provider or other person, entity, i n s t i t u t i o n o r organization unless prior arrangements are made by HMO

. Finally, language in the “E x c l u s i o n s a n d L imitations” section states that covered benefits do not include “[u]nauthorized services, including any service obtained by or on behalf of a Member without a Referral issued by the Member ’s PCP or pre-authorized byHMO .” III. Discussion

a st andi ng Re fe rr al to suc h Specialis t

. If PC P in cons ultat ion w i t h a n H MO Me dic al Di rec tor a n d an app rop riat e Specialis t det erm ines that a st andi ng Re fe rr alis wa rra nted , the PC P s hall mak e the Re fe rr alto a Specialis t . This st andi ng Re fe rr al sha ll be pur sua nt to a t reat me nt planap pr oved by the HMO Me dic al Di rec torinc ons ultat ion wi th the PC P , Specialis t , and Mem be r
. The ter m “ Specialis t” is def ined as “ [ a ] P h y sician wh o pr ovide s me dic al car e in any genera lly a cce pt ed me dic al or sur gical sp ecia lty or sub sp ecia lity. ”
The s eco nd opi nion par agrap h r ead s: 8
Mem be r may requ es t a se cond opi nion regar ding a pr opo se d sur gery or cour se of tre atm ent rec om me nded by Mem be r’s PCP or a S p ec i alist

. Sec ond opi nions may be obta ined on ref

err al fr om the Mem be r’s PC P

. Reques ts for s e c o n d opi nions fr om no n-p art icip ating Pr ovider s m ust be p re- autho rized

.

6 Case: 11-10458 Document: 00511872682 Page: 6 Date Filed: 05/31/2012No. 11-10458

A. Interpreting the COC Because the plan gives Aetna discretion to interpret the plan’s terms, we review Aetna’s interpretation for abuse-of-discretion. Firestone Tire & Rubber Co. v. B r u c h , 489 U.S. 101, 115, 109 S. Ct. 948, 957 (1989). “The most important” factor in that analysis is “whether the administrator’s interpretation i s consistent with a fair reading of the plan

. . . .” Gosselink v. American Tel., Inc. , 272 F.3d 722, 727 (5th Cir. 2001). In interpreting an ERISA plan, we give 9 its language the ordinary and generally accepted meaning. See Provident Life & Acc. Ins. Co. v. Sharpless , 364 F.3d 634, 641 (5th Cir. 200 4). Koehler contends that Subsection H of the COC requires only that a doctor within the HMO send Aetna a request for ad hoc referral to an outside physician, and that the request can be made after the patient receives the services. Aetna contends that the pre-authorization requirement is unambigu ously expressed in Subsection H, Subsect i o n I of the COC’s “General Provisions” section, and the language in the “Exclusions and Limitations” section. We find that the COC is ambiguous with respect to pre-authorization for outside services rende r ed on an ad hoc basis. Subsection H seems to contemplate that at some point a participating provider will submit a request for Aetna to approve the outside referral. But it does not state when that request must occur relative to the provision of services, and it does not state that failing to submit that request beforehand will irrevocably forfeit whatever coverage the insured would o t h e r wise have enjoyed. Considering other provisions in the

Ot her fac tor s oft en cons ide red inclu de any unanti ci pa te d co st s re su ltin g fr om dif fer ent 9 inte rp ret atio ns of the plan , th e i n t e r n a l cons ist ency of the plan unde r the adm inis tra tor ’s inte rp ret atio n, any rele vant regula tio ns for mul ated by the app rop riat e adm inis tra tive agenci es , and the fac tual back ground of the det e r m i n a t i o n and any infe renc es of bad fai th. Wil dbur v. ARCO Chem ic al Co. , 974 F.2d 6 3 1 , 6 3 7

- 3 8 ( 5th Cir. 1992)

. If the plan adm inis tra torboth evaluat es and pays claim s, then cour ts al so c ons ide r the ad mi nis tra tor ’s conf lict of inte res t. Me tro. Lif e Ins. Co. v. Gl enn , 554 U. S. 105, 111- 12, 128 S. Ct. 2343, 2347- 48 ( 2008)

. 7 Case: 11-10458 Document: 00511872682 Page: 7 Date Filed: 05/31/2012No. 11-10458

COC, there are the statements on pages one and seven saying that some services
may require “pre-authorization,” and then in provisions for a number of services

“ p r e -authorization” is expressly required, but not in Subsection H. As for t h e exclusion of services obtained “without a Referral issued by the Member’s PCP or pre-authorized by HMO,” that language at most requires that one of its two disjuncts be satisfied. Then there is the sentence in Subsection I of the “General Provisi ons” section speaking of “prior arrangements

. . . made by HMO ” as a prerequisite for
any ser vices from an outside provider to be covered. That language does not unambiguously require pre-authorization in the sense of a cl a i m - b y-claim
process for wh i c h t h e p atient or his doctors would be responsible. “[P]rior arrangements” has a broader meaning than “pre-authorization,” and while the latter term is repeatedly used to indicat e a pre-authorization requirement elsewhere in the COC, “prior arrangements” is not. Also, Subsection I is in the “G e n e r a l P r o visions” section, not the “HMO Procedure” section, where one would expect to find procedures applicable to services inside and outside t h e H M O. And the qualifying words “.

. . made by HMO ,” suggests that the “prior arrangements” refer to some undertaking that Aetna would initiate, whereas pre-authorization would be initiated by the patient or her doctors in the HMO. Moreover, the “prior arrangements” language encompasses all outside services, including second opinions and outside services under a standing referral. The specific pre-authorization language in th e p r ovisions devoted to those services suggests that Subsection I’s reference to “prior arrangements” has a d i f f erent meaning, possibly referring to a one-time undertaking that Aetna wished to complete in the initial organization of the HMO before being obliged to process claims for services by outside providers. Finally, there is the COC’s assurance that Aetna “will not use any decision making process that operates to de n y M e d i cally Necessary care that is a

8 Case: 11-10458 Document: 00511872682 Page: 8 Date Filed: 05/31/2012No. 11-10458

Covered Benefit

. . . .” That promise seems to disavow relying on a harmless procedural lapse as a basis for refusing reimbursement for services that would otherw i s e b e covered. An insured’s receiving outside services without preauthorization does not prejudice Aetna’s ability to refuse coverage if it concludes that the services were not medically necessary or that they were in fact available within the HMO. Nor does making an after-the-fact determinat i o n p r ejudice Aetna’s abil i ty to refuse to pay more than a reasonable charge for the outside provider’s services. As noted above, the plan gives Aetna discretion to resolve ambiguities in the plan language in its favo r
. However, Aetna’s discretion to resolve ambiguities in the plan does not extend to the plan summary , notwithstanding that in this instance the summary is a ve r b a t i m c o py of text in the plan. See Rhorer v. Raytheon Eng’rs & Constructors, Inc. , 181 F.3d 634, 642 (5th Cir. 1999. Ambiguities in a plan summary are resolved in favor of the beneficiary. 1 0 Id. (holding that contra proferentum applies when interpreting a plan summary

even “when the plan administrator has expressly been given discretion to interpret the plan”); Hansen v. Continental Ins. Co. 940 F.2d 971, 982 (5th Cir. 1991). That is because ERISA requires that plan summaries be “wr i t t en in a

manner calculated to be understood by the average plan partic i p a n t , and

. . . sufficiently accurate and comprehensive to reasonably a p p r i s e s uch participants and beneficiaries of their rights and obligations under the pla n .” 29 U.S.C. § 1022(a); see also , e.g. , Harris Methodist Ft. Worth v. Sales Support Servs. Inc. Emp. Health Care Plan , 426 F.3d 330, 336 (5th Cir. 2005) (n o t i n g that plan summaries are interpreted fro m t h e p e rspective of a layperson). Therefore,

Cf. H ans en , 940 F.2dat982 ( ref usi ng t o give ef

fec t to language in a p lan sum mar y 1 0
s t ating that all right s are governe d by the unde rlying plan , beca use that wo ul d “ w h o l l y unde rm ine” the st atut ory “re quire me nt of an acc urat e a n d c o m pr ehens ive sum mar y plan des cri pt ion. ”) The dis tri ct co urt ’s reli ance on High v. E-Sys tems Inc. , 459 F.3d573 (5th Cir. 2006) , is mi st ak en. That cas e did not conc ern a dis cre panc y betw een the adm in i st rat or’ s inte rp ret atio n o f the planandt he ter ms of t he plans umm ary. Id. at 576

. 9 Case: 11-10458 Document: 00511872682 Page: 9 Date Filed: 05/31/2012No. 11-10458

when consid e ring the COC as a plan summary we must resolve its ambiguity against requiring pre-authorization of ad hoc outside services. That of course diverges from the interpretation Aetna has given to identical language in the underlying plan. If that outcome seems puzzling, the anomaly is traceable to 1 1 Aetna’s curious decision to use identical language in both plan a nd plan summary–documents that serve quite different functions a n d are accordingly subject to differing interpretative standards. See Hansen , 940 F.2d at 981. In Hansen , we held that the terms of the plan summary contro l o ver inconsiste n t t e rms in the underlying plan. 940 F.2d at 981. An d in Rhorer we held that the employer/administrator’s “interpretation of the plan [was] legally incorrect” because it conflicted with one possib l e i n t e rpretation of ambiguous language in the plan summary. 181 F.3d at 642

. Those cases preceded CIGNA Corp. v. Amara , 131 S. Ct. 1866 (2011), in which the Supreme Cou r t held that the text of § 1132(a)(1)(B) does not authorize courts to enforce the terms of a plan
summary, because that provision only authorizes enforcement of the “‘terms of the plan.’” Section 1132(a)(1)(B) does, however, allow courts to “look outside

1 2 th e p lan’s written language in deciding what those terms are, i.e., what the language means
. . . .” CIGNA , 131 S Ct. at 1877. Also, even if the plan’s l anguage un ambiguously supports the administrator’s decision, a beneficiary
may still seek to hold the adm i nistrator to conflicting terms in the plan

Typic ally, the plan sum mar y is not a verbat im cop y of the text of the plan its elf

. See 1 1 Ha nse n , 940 F.2dat981 ( “[ T]he ver y p urp os e o f having a sum mar y des cri pt ion of the pol icy is to enable the average par tic ipan t in the plan to unders tand read ily the general fea tur es of the pol icy, pr ecis ely so that the average par tic ipan t need not beco me expe rt in each and every one of the requ irem ents , pr ovis os , cond itio ns, and qualif icat ions of the pol icy and its legal ter mi nology. ”)

CIGN A , 131 S. Ct. at 1 8 7 7 ( q u otin g 29 U. S. C. § 1132( a)( 1)( B) (em phas is add ed in 1 2 CIGN A rem oved)) ; see a ls o id. at 1877- 78. 10 Case: 11-10458 Document: 00511872682 Page: 10 Date Filed: 05/31/2012No. 11-10458

summary through a breach-of-fiduciary-duty claim under § 1132(a)(3). CIGNA , 131 S. Ct. at 1878-82. 1 3 Thus, CIGNA changes our case law to t h e e x t e n t that the plan text ultimately controls the administrator’s obligations in a § 1132(a)(1)(B) action, but CIGNA does not disturb our prior holdings that (1) ambiguous plan language be given a meaning as close as possible to what is said in the plan summary, and (2) plan summaries be interpreted in light of the applicable s t a t u t e s and regulati o ns. See McCall v. Burlington Northern/Santa Fe. Co. , 237 F.3d 506, 512 (5th Cir. 2 0 00); Hansen , 940 F.2d at 980-81; Rhorer , 181 F.3d at 641-42. Those regulations require considerably greater clarity than the COC provides. 1 4 For example,“restrictive plan provisions,” like a pre-authorization requirement, “need not be disclosed

. . . in close conjunction with the description or summary of benefits,” but only if “adjacent to the benefit description the page on which the restrictions are described is noted.” 29 C.F.R. § 2520.102-2(b). The plan does 1 5

S ect ion 1132( a)( 3) per mi ts a benef icia ry to se ekequitab le reli ef “(A) .

. . enjoin[ ing] 1 3 any act or prac tic e whi ch violat es any provis ion of [29 U. S. C. §§ 1001-1 119c] or the ter ms of the plan , or (B) to obta in othe r app rop riat e equit able reli ef (i) to red res s suc h violat ions or (ii ) to enf orc e any pr ovis ions of [29 U. S. C. §§ 1001- 1119c ] or t h e ter ms of the plan .” Sec tio n 1132( a)( 3) sup pli es a “ca tch all” or “s afe ty net, off erin g app rop riat e equit able reli ef for injurie s caus ed by vi o l a t i o n s t h a t § [113 2] doe s not els ew here ade quate ly rem edy. ” Va ri ty Corp

. v. Ho we , 516 U. S. 489 , 512, 116 S

. Ct. 106 5, 1078 (199 6).

See, e. g. , 2 9 C

. F

. R

. § 2520. 102- 3( l)( 2) (r equir ing that a plan sum mar y “cl earl y 1 4 ide ntif y[] cir cum st ance s wh ich may res ult in dis qua l i f i cat ion, ineli gibilit y, or deni al, los s, for fei tur e, sus pens ion, off se t, [or] reduc tio n . .
. . ”) ; 29 C. F.R. § 2520. 102- 2(b) ( requ iring that the sum mar y’s f

orm at “nothave t he eff ect [of ] mi sle adin g, mis info rm ing or fail ing to info rm par tic ipan ts and benef icia ri e s
. . . ,” and that “[ a]ny des cri pt ion of excep tio n[s ], lim itat ions , red uct ions , and othe r res tri cti ons of plan benef its sha ll not be mi nim ized , rend ere d obs cur e or othe rw ise m ade t o a pp ear unim por tant .” )
This r egulat ion st ates inf ull: 1 5 T h e f o r m at of the sum mar y plan des cri pt ion mus t not have the eff ect t o mi sle adin g, mi sin for mi ng or fai ling to info rm par tic ipan ts and benef icia ries

. Any des cri pt ion of excep tio n, lim itat ions , re d u c t i ons , and othe r res tri cti ons of plan benef its s h a l l not be mi nim ized , rend ere d obs cur e or othe rw ise mad e to app ear unim por tant

. Such excep tio ns, lim it a t i o ns, red uct ions , or res tri cti ons of plan benef its sha ll be des cri bed or sum mar ized in a man ner not les s pr om inent than the
11 Case: 11-10458 Document: 00511872682 Page: 11 Date Filed: 05/31/2012No. 11-10458

not preclude Aet n a from requiring pre-authorization for ad hoc services from outside doctors in the future, so long a s i t p r ovides a plan summary that
expresses that requirement with the cla r i t y t h a t E R I SA r e q u ires. Aetna having 1 6 failed to do that, we find that it has not given a fair reading to the plan. We 1 7
next consider the facts surrounding the denial of the claim and evidence of bad faith, Rhorer , 1 8 1 F

. 3 d a t 643, along with Aetna’s conflict of interest as the entity that both evaluates and pays claims. Glenn , 554 U.S. at 115, 128 S. Ct. at 2347. The district court c o n c l u ded that “[Koehler] does not allege any facts that would rise to the level of bad faith considered by Rhorer , or any level of bad faith for that matter.” We disagree. 1 8 In Rhorer , we found “some evidence, alth o u g h slight, that the plan administrator had acted in bad faith” in refusing to pay optional life insurance

st yle, cap tio ns, pr inti ng type , and pr om inenc e use d to des cri be or sum mar ize plan benef its

. The advant ages and dis advant ages of the plan s h all be pr es ente d wi thou t eit her exaggerat ing the benef its or mi nim izing the l im itat ions

. The des cri pt ion or sum mar y of res tri cti ve plan pr ovis ions need not be dis clos ed in the
s u m m a ry plan des cri pt ion in clos e conjunc tio n wi th the des cri pt ion or sum m a r y of benef its , pr ovide d that adjac ent to the benef it des cri pt ion the page on wh ich the
res tri cti ons ar e d es cri bedis no ted

. 29 C. F.R. § 2520. 102- 2(b)

.

See Wis e v. El Paso Na tural Ga s Co. , 986 F.2d 929, 933, 938 (5t h Cir. 1993) (r efu sin g 1 6 to consid er outdat ed summ arie s’ uncond itio nal pro mi se s of healt h benef its upon ret irem ent, beca use plai ntif

fs retir ed overa y ear af ter thei r em plo yer/ plan -ad mi nis tra tor had publis hed
a re v i s e d plan sum mar y that acc urat ely ref lect ed its right to ame nd or ter mi nate pos tret irem ent benef

its ).
See Ha nse n , 940 F.2d at 980 (“ ‘It is gros sly unfa ir to

. . . dis qualif y [an em plo yee] fr om 1 7 benef its if

. . . [t he] cond itio ns [w hich lead to the dis qualif icat ion] we re st ated in a mi sle adin g or inco mp rehe nsi ble man ner in the plan book let s. ’” (quo ting H. R.Rep

. No. 93-5 33, 93d Cong., 2d Ses s. , rep ri nted in 1974 U. S. Code Cong. & Adm in. New s 4639, 4646) (br ack eti ng add ed in Ha nse n))

.

The dis tri ct cour t als o obs erved that Dr

. Whit mo re’ s se rvice s may not h a v e b e en 1 8
m edi call y nece ss ary, and that they may in fac t have been availabl e wi thin the H M O

. B u t Aetna did not reac h thos e ques tio ns in evaluat ing Ko ehler ’s clai m, and cour ts revie wi ng an adm inis tra tor ’s deni al of benef its cons ide r only the act ual bas is on wh ich the adm inis tra tor deni ed the clai m, “not its pos t- hoc rat ionali zatio n[s ]. ” Robi nson v. Ae tna Lif e Ins. Co. , 443 F.3d 389, 395 -96 n.4 (5t h Cir

. 2006)

. 12 Case: 11-10458 Document: 00511872682 Page: 12 Date Filed: 05/31/2012No. 11-10458

because the dece d e n t h a d not returned to active, full-time employment in the period between his enrollment in the plan and his death. 181 F.2d at 643. The administrator had enrolled the decedent in the plan and accepted his premiums for the extra life insurance, all the while k n owing that his declining health would not permit him to return to active employment. Id. at 638, 643. Also, the administrator s ub s e q u e n t l y s o u gh t t o r e v o k e t h e l i f e insurance shortly before the decedent died. Id. at 643-44. “Though far from conclusive,” we found that those circumstances “smack[ed] of bad faith” and preclud e d s u m m a ry j u d g m e n t for the administrator on the bad-faith factor. Id. at 644. Here, there is the inadequate
summary and evidenc e t h a t Aetna failed to apprise Dr. Rajak and Dr. Checo, Koehler’s doctors in the HMO, that they should not refer p a t i e n t s to outside providers without requesting permission from Aetna beforehand. As in Rhorer , this does not conclusively establish bad faith. But it suggests a device to cause insur e d s t o inadvertently forfeit coverage through ignorance of the correct procedures. Given Aetna’s conflict of interest, it smacks o f bad faith to invoke pre-authorization if that requirement is unknown to both doctors and patients in the HMO. See Glenn , 554 U.S. at 115, 128 S. Ct. at 2347. We have held that Aetna relied on a legally incorrect interpretation of ambiguous plan language, and that Aetna violated ERISA regulations in providing an inad e q u a t e p l an summary. We do not address what more, if

a nything, Koehler must show in order to establish that Aetna abused it s discretion. Though we also hold that there is some evidence of bad faith, we

19
express no opinion on whether Koehler must demonstrate bad faith in order to

recover. See Jones v. SONAT, Civ. Master Emp. Ben. Plan. Admin. Cmte. , 997 F.2d 113, 116 (5th Cir. 1993) (A denial based on a legally incorrect interpretation of a plan is an abuse of discretion if it benefits the plan fiduciary at the expense

We note that ther e is no right to a jur y t r i a l in ERISA deni al- of- benef its cas es
. 1 9 Cal am iav
. Spi ve

y , 632 F.2d123 5, 1236- 37 ( 5th Cir. 198 0). 13 Case: 11-10458 Document: 00511872682 Page: 13 Date Filed: 05/31/2012No. 11-10458

of the beneficiary, unless the decision can be justified “in terms of greater benefit to the class of Plan participants and beneficiaries.”) B. Exhaustion of Administrative Remedies We also leave for consideration on remand Aetna’s argument that Koehler had failed to exhaust her administrative remedies, which the district court did not reach in its s ummary judgment ruling. We note, however, that under 29 C.F.R. § 2560.503-1(b), an ERISA benefit plan must “establish a n d m a i ntain

reason a b l e procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations

. . . .” Procedures cannot be considered reasonable unless t h e y “ d o not contain any provision, and are not administered in a way, that unduly inhibits or hampers the initiation or processing of claims for benefits.” 29 C.F.R. § 2560.503-1(b)(3). “In t h e case of the failure of a plan to establish or follow claims procedures consistent with the requirements of [29 C.F.R. § 2560.503-1]

. . . a claimant shall be deemed to have exhausted the administrative remedies available under the plan and shall be entitled to pursue any available remedies under [2 9 U .S.C. § 1132(a)].

. . .” It is difficult to see how Ae t n a ’s leaving both Koehler and her doctors ignorant of the pre-authorization requirement would n o t “inhibit or hamper[]” her from initiating the procedures necessary f o r h e r to realize her entitlements under the plan. IV. CONCLUSION The district court’s judgment is REVERSED and the case i s R E MANDED.

14 Case: 11-10458 Document: 00511872682 Page: 14 Date Filed: 05/31/2012No. 11-10458

HAYNES, Circuit Judge, concurring in part: I agree that the decision of the district court should be reversed. However, I have reviewed the provisions of the plan so carefully and thoroughly set forth in the majority opinion. Taken as a whol e , I c a n n o t read these provisions to requi r e preauthorization for this particular circumstance as a condition precedent to any reco very regardless of any other circumstances. Thus, I conclude there is no ambiguity, and I wo u l d hold that the plan administrator abused its discretion in concluding to the contrary. However, other reasons were given for denial of benefits, so I concur in remanding for purposes of considering those issues.

15 Case: 11-10458 Document: 00511872682 Page: 15 Date Filed: 05/31/2012