IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 the district court’s summary

judgment dismissing her suit to recover health insurance 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 maintenance organization (“HMO”), provides and

administers the plan’s health insurance benefits under an agreement giving

Aetna discretion to interpret the plan’s terms. Aetna refused to reimburse

Koehler for care she 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

United States Court of Appeals

Fifth Circuit

F I L E D

May 31, 2012

Lyle W. Cayce

Clerk

Case: 11-10458 Document: 00511872682 Page: 1 Date Filed: 05/31/2012
No. 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 description 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 judgment 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. Cas. Co., 592

F.3d 687, 690 (5th Cir. 2010). 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 sleep 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

use a dental device designed to prevent her airway from closing during sleep.

After consulting with her primary care 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 bill for his services was $2,300. Aetna denied coverage for

those charges, and Koehler pursued Aetna’s internal appeals process.

At Koehler’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. Whitmore for the device fitting. Dr. Kakar stated that “[w]e were and are

2

Case: 11-10458 Document: 00511872682 Page: 2 Date Filed: 05/31/2012
No. 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 that “services provided by nonparticipating

providers require a referral from an Aetna contracted provider and a prior

approval by Aetna Patient Management Department.” 

1

Koehler filed suit in state court on April 20, 2010. She 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 that it “correctly denied

Koehler’s claim for benefits because the Plan excludes out-of-network 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

benefits. However, in addition to appearing in the plan, the COC’s text also

constitutes the “summary plan description” which ERISA requires plan

administrators to provide to participants and beneficiaries. Thus, although a 3

The letter cites two other bases for denying the claim, but Aetna did not rely on these

1

in its motion for summary judgment.

 Federal jurisdiction is based on 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). 2

Title 29, United States Code, § 1021(a)(1) requires that a plan administrator “shall 3

cause to be furnished in accordance with section 1024(b) of [Title 29] to each participant

covered under the plan and to each beneficiary who is receiving benefits under the plan . . .

a summary plan description described in section 1022(a)(1) . . . .” 29 U.S.C. § 1021(a)(1).

Section 1024(b)(1) states that “[t]he administrator shall furnish to each participant, and each

beneficiary receiving benefits under the plan, a copy of the summary plan description . . . .”

Aetna produced a copy of the COC in response to Koehler’s request for a copy of “the

3

Case: 11-10458 Document: 00511872682 Page: 3 Date Filed: 05/31/2012
No. 11-10458

plan summary is a separate document from the plan itself, 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 Care Provider,” or “PCP.” The 5

benefits scheme described in the COC contemplates that nearly all of an

insured’s medical care be provided by physicians in the HMO, at the direction

of the 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 practice group or association of

Health Professionals and Medically Necessary Covered

Benefits are not available within the PCP’s limited provider network,

the Member has the right 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.

summary plan description applicable to [her] claim.” Also, Aetna concedes in its appellate

brief that the regulations governing the writing and formatting of summary plan descriptions

apply to the COC.

Summary plan descriptions “provide communicationwithbeneficiaries about the plan,

4

but . . . do not themselves constitute the terms of the plan.” CIGNA Corp. v. Amara, 131 S.

Ct. 1866, 1878 (2011).

Many terms in the COC are printed in bold typeface. The COC’s introduction states 5

that terms “appear[ing] in bold type with initial capital letters” have the meanings set forth

in the COC’s “Definitions” section. We note, however, that making sense of the COC’s

provisions sometimes requires disregarding that instruction. For example, Subsection H of

the “HMO Procedure” section speaks of “a Referral to a non-participating Provider,” which

is a contradiction in terms if one applies the COC’s definition of “Referral” as “[s]pecific

directions or instructions . . . that direct a Member to a Participating Provider for

Medically Necessary care” (emphasis added).

4

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

2. Reasonably requested documentation must be received by

HMO.

3. Before HMO denies a Referral, a review will be conducted by

a Specialist of the same or similar specialty as the type of

Provider to whom a Referral is requested.

4. The Referral will be provided within an appropriate time, not

to exceed five business days, based on the circumstances and

the Member’s condition.

5. The Member shall not be required to change his or her PCP or

Participating Specialist to receive Medically Necessary

Covered Benefits that are not available from Participating

Providers.

6. HMO will reimburse the non-participating Provider at the

usual and customary or an agreed upon rate, less the

applicable Copayment(s).

6

A number of 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 REQUIRE PRE-AUTHORIZATION

BY HMO.” Subsection J of the “HMO Procedure” section is titled “PreAuthorization.” That subsection states, “Certain services and supplies under

this Certificate may require pre-authorization by HMO to determine if they are

Covered Benefits under this Certificate.” 

A separate section of the COC, titled “Medically Necessary Covered

Benefits,” includes several subsections devoted to particular categories of

medical treatment. Several of these include explicit statements that the

particular service requires pre-authorization. Notable among these provisions

is language specifically requiring pre-authorization for services rendered

pursuant to a standing referral to a specialist inside or outside of the HMO.7

 We will refer to this provision below simply as “Subsection H.”

6

 The standing referral paragraph reads: 7

If a Member requires ongoing care from a Specialist, the Member may receive

5

Case: 11-10458 Document: 00511872682 Page: 5 Date Filed: 05/31/2012
No. 11-10458

Also notable is the specifically stated pre-authorization requirement for second

opinions from outside providers. The parties agree, however, that Dr. 8

Whitmore’s services did not take 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 Medical 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-participating Provider or other person,

entity, institution or organization unless prior arrangements are made

by HMO.

Finally, language in the “Exclusions andLimitations” 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 by HMO.”

III. Discussion

a standing Referral to such Specialist. If PCP in consultation with an HMO

Medical Director and an appropriate Specialist determines that a standing

Referral is warranted, the PCP shall make the Referral to a Specialist. This

standing Referral shall be pursuant to a treatment plan approved by the HMO

Medical Director in consultation with the PCP, Specialist, and Member.

The term “Specialist” is defined as “[a] Physician who provides medical care in any

generally accepted medical or surgical specialty or subspeciality.”

 The second opinion paragraph reads: 8

Member may request a second opinion regarding a proposed surgery or course of

treatment recommended by Member’s PCPor aSpecialist. Second opinions may

be obtained on referral from the Member’s PCP. Requests for second opinions

from non-participating Providers must be pre-authorized.

6

Case: 11-10458 Document: 00511872682 Page: 6 Date Filed: 05/31/2012
No. 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. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 957 (1989). “The most

important” factor in that analysis is “whether the administrator’s interpretation

is 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. 2004).

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 unambiguously expressed in

Subsection H, Subsection 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 rendered 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 otherwise have enjoyed. Considering other provisions in the

Other factors often considered include any unanticipated costs resulting from different 9

interpretations of the plan, the internal consistency of the plan under the administrator’s

interpretation, any relevant regulations formulated by the appropriate administrative

agencies, and the factual background of the determination and any inferences of bad faith.

Wildbur v. ARCO Chemical Co., 974 F.2d 631, 637-38 (5th Cir. 1992). If the plan

administrator both evaluates and pays claims, then courts also consider the administrator’s

conflict of interest. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111-12, 128 S. Ct. 2343, 2347-

48 (2008).

7

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

“pre-authorization” is expressly required, but not in Subsection H. As for the

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 Provisions”

section speaking of “prior arrangements . . . made by HMO” as a prerequisite for

any services from an outside provider to be covered. That language does not

unambiguously require pre-authorization in the sense of a claim-by-claim

process for which the patient 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 indicate a pre-authorization requirement

elsewhere in the COC, “prior arrangements” is not. Also, Subsection I is in the

“GeneralProvisions” section, not the “HMO Procedure” section, where one would

expect to find procedures applicable to services inside and outside the HMO. 

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 the provisions devoted to those services

suggests that Subsection I’s reference to “prior arrangements” has a different

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 deny Medically Necessary care that is a

8

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

otherwise be 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 determination prejudice

Aetna’s ability 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 favor. 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 verbatim copy 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. 10

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 “written in a

manner calculated to be understood by the average plan participant, and . . .

sufficiently accurate and comprehensive to reasonably apprise such participants

and beneficiaries of their rights and obligations under the plan.” 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) (noting that plan

summaries are interpreted from the perspective of a layperson). Therefore,

Cf. Hansen, 940 F.2d at 982 (refusing to give effect to language in a plan summary

10

stating that all rights are governed by the underlying plan, because that would “wholly

undermine” the statutory “requirement of an accurate and comprehensive summary plan

description.”) The district court’s reliance on High v. E-Systems Inc., 459 F.3d 573 (5th Cir.

2006), is mistaken. That case did not concern a discrepancy between the administrator’s

interpretation of the plan and the terms of the plan summary. Id. at 576.

9

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

when considering 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 11

Aetna’s curious decision to use identical language in both plan and plan

summary–documents that serve quite different functions and 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 control over

inconsistent terms in the underlying plan. 940 F.2d at 981. And in Rhorer we

held that the employer/administrator’s “interpretation of the plan [was] legally

incorrect” because it conflicted with one possible interpretation 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 Court 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 12

the plan’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

language unambiguously supports the administrator’s decision, a beneficiary

may still seek to hold the administrator to conflicting terms in the plan

Typically, the plan summary is not a verbatim copy of the text of the plan itself. See 11

Hansen, 940 F.2d at 981 (“[T]he very purpose of having a summary description of the policy

is to enable the average participant in the plan to understand readily the general features of

the policy, precisely so that the average participant need not become expert in each and every

one of the requirements, provisos, conditions, and qualifications of the policy and its legal

terminology.”)

CIGNA, 131 S. Ct. at 1877 (quoting 29 U.S.C. § 1132(a)(1)(B) (emphasis added in 12

CIGNA removed)); see also id. at 1877-78. 

10

Case: 11-10458 Document: 00511872682 Page: 10 Date Filed: 05/31/2012
No. 11-10458

summary through a breach-of-fiduciary-duty claim under § 1132(a)(3). CIGNA,

131 S. Ct. at 1878-82.13

Thus, CIGNA changes our case law to the extent 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 statutes and

regulations. See McCall v. Burlington Northern/Santa Fe. Co., 237 F.3d 506,

512 (5th Cir. 2000); Hansen, 940 F.2d at 980-81; Rhorer, 181 F.3d at 641-42. 

Those regulations require considerably greater clarity than the COC provides.14

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 15

 Section 1132(a)(3) permits a beneficiary to seek equitable relief “(A) . . . enjoin[ing] 13

any act or practice which violates any provision of [29 U.S.C. §§ 1001-1119c] or the terms of

the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii)

to enforce any provisions of [29 U.S.C. §§ 1001-1119c] or the terms of the plan.” Section

1132(a)(3) supplies a “catchall” or “safety net, offering appropriate equitable relief for injuries

caused by violations that § [1132] does not elsewhere adequately remedy.” Varity Corp. v.

Howe, 516 U.S. 489, 512, 116 S. Ct. 1065, 1078 (1996).

See, e.g., 29 C.F.R. § 2520.102-3(l)(2) (requiring that a plan summary “clearly

14

identify[] circumstances which may result in disqualification, ineligibility, or denial, loss,

forfeiture, suspension, offset, [or] reduction . . . .”); 29 C.F.R. § 2520.102-2(b) (requiring that

the summary’s format “not have the effect [of] misleading, misinforming or failing to inform

participants and beneficiaries . . . ,” and that “[a]ny description of exception[s], limitations,

reductions, and other restrictions of plan benefits shall not be minimized, rendered obscure

or otherwise made to appear unimportant.”)

 This regulation states in full: 15

The format of the summary plan description must not have the effect to

misleading, misinforming or failing to inform participants and beneficiaries. Any

description of exception, limitations, reductions, and other restrictions of plan

benefits shall not be minimized, rendered obscure or otherwise made to appear

unimportant. Such exceptions, limitations, reductions, or restrictions of plan

benefits shall be described or summarized in a manner not less prominentthan the

11

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

not preclude Aetna from requiring pre-authorization for ad hoc services from

outside doctors in the future, so long as it provides a plan summary that

expresses that requirement with the clarity that ERISA requires. Aetna having 16

failed to do that, we find that it has not given a fair reading to the plan. We 17

next consider the facts surrounding the denial of the claim and evidence of bad

faith, Rhorer, 181 F.3d at 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 concluded 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. 18

In Rhorer, we found “some evidence, although slight, that the plan

administrator had acted in bad faith” in refusing to pay optional life insurance

style, captions, printing type, and prominence used to describe or summarize plan

benefits. The advantages and disadvantages of the plan shall be presented

without either exaggerating the benefits or minimizing the limitations. The

description or summary of restrictive plan provisions need not be disclosed in the

summary plan description in close conjunction with the description or summary

of benefits, provided that adjacent to the benefit description the page on which the

restrictions are described is noted.

29 C.F.R. § 2520.102-2(b).

See Wise v. El Paso Natural Gas Co., 986 F.2d 929, 933, 938 (5th Cir. 1993) (refusing

16

to consider outdated summaries’ unconditional promises of health benefits upon retirement,

because plaintiffs retired over a year after their employer/plan-administrator had published

a revised plan summary that accurately reflected its right to amend or terminate postretirement benefits).

17 See Hansen, 940 F.2d at 980 (“‘It is grossly unfair to . . . disqualify [an employee] from

benefits if . . . [the] conditions [which lead to the disqualification] were stated in a misleading

or incomprehensible manner in the plan booklets.’” (quoting H.R.Rep. No. 93-533, 93d Cong.,

2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 4639, 4646) (bracketing added in

Hansen)).

The district court also observed that Dr. Whitmore’s services may not have been 18

medically necessary, and that they may in fact have been available within the HMO. But

Aetna did not reach those questions in evaluating Koehler’s claim, and courts reviewing an

administrator’s denial of benefits consider only the actual basis on which the administrator

denied the claim,“notits post-hoc rationalization[s].” Robinson v. Aetna Life Ins. Co., 443 F.3d

389, 395-96 n.4 (5th Cir. 2006).

12

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

because the decedent had 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 knowing that his declining health

would not permit him to return to active employment. Id. at 638, 643. Also, the

administrator subsequently soughtto revoke the life 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 precluded summary judgmentfor the

administrator on the bad-faith factor. Id. at 644. Here, there is the inadequate

summary and evidence that Aetna failed to apprise Dr. Rajak and Dr. Checo,

Koehler’s doctors in the HMO, that they should not refer patients 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

insureds to inadvertently forfeit coverage through ignorance of the correct

procedures. Given Aetna’s conflict of interest, it smacks of 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 inadequate plan summary. We do not address what more, if

anything, Koehler must show in order to establish that Aetna abused its

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 there is no right to a jury trial in ERISA denial-of-benefits cases. 

19

Calamia v. Spivey, 632 F.2d 1235, 1236-37 (5th Cir. 1980).

13

Case: 11-10458 Document: 00511872682 Page: 13 Date Filed: 05/31/2012
No. 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 summary judgment ruling. We note, however, that under 29

C.F.R. § 2560.503-1(b), an ERISA benefit plan must “establish and maintain

reasonable procedures governing the filing of benefit claims, notification of

benefit determinations, and appeal of adverse benefit determinations . . . .” 

Procedures cannot be considered reasonable unless they “do 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 the 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 [29 U.S.C.

§ 1132(a)]. . . .” It is difficult to see how Aetna’s leaving both Koehler and her

doctors ignorant of the pre-authorization requirement would not “inhibit or

hamper[]” her from initiating the procedures necessary for her to realize her

entitlements under the plan.

IV. CONCLUSION

The district court’s judgment is REVERSED and the case is REMANDED.

14

Case: 11-10458 Document: 00511872682 Page: 14 Date Filed: 05/31/2012
No. 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 whole, I cannot read these provisions to

require preauthorization for this particular circumstance as a condition

precedent to any recovery regardless of any other circumstances. Thus, I

conclude there is no ambiguity, and I would 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