News & Resources

UnitedHealthcare Level of Care Guidelines Criticized Again

Last week, another court weighed in on UnitedHealthcare’s use of its Level of Care Guidelines in the use of residential treatment claims. In Bain v. United Healthcare Inc., No. 15-CV-03305-EMC (N.D. Cal. Feb. 15, 2020), the court ruled that it is settled law that UnitedHealthcare’s use of its Level of Care Guidelines were motivated by its own financial self interest.

The Bains sought residential treatment benefits for their daughter under a group health plan administered by United Behavioral Health.  UBH denied the treatment based on a lack of medical necessity. After the Bains exhausted all internal appeals, they filed suit. The parties filed cross-motions for summary judgment on the Bains’ claim for benefits under ERISA 502(a)(1)(B). 

The Bains first argued that the legal principle of collateral estoppel should apply on the issue of liability. Put another way, UBH should not be able to contest that its Level of Care Guidelines were found by the Wit court to be inconsistent with standards of care generally accepted in the mental health field.  The court rejected this approach. 

However, the court found that collateral estoppel applied to the “significant skepticism” to give to UBH’s benefit decision due to its financial conflict of interest. The court explained that even if was not immediately clear how UBH applied its Level of Care Guidelines in this case, the finding in Wit was reason to apply “a healthy amount of skepticism” to the standard of review.

The court concluded that UBH abused its discretion by denying the Bains’ benefits. It then remanded the claim back to UBH because it could not determine if the Bains are entitled to benefits based on valid guidelines or other criteria. 

What’s the takeaway lesson? If you have a UnitedHealthcare health insurance claim, and it is using the Level of Care Guidelines in your claim, there is legal authority you must know before you can adequately respond.

At Berg Plummer Johnson & Raval, we have represented clients whose health insurance claims have been denied by UnitedHealthcare. If your health insurance claim has been denied, it’s vital that you connect with a qualified attorney as soon as possible so that the claims can be properly evaluated. Get in touch with an experienced health insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance with your health insurance claim.

Court in Fifth Circuit Applies De Novo Review in Long Term Disability Case

At Berg Plummer Johnson & Raval, we monitor cases that affect our clients’ rights, including those involving long term disability claims. The following case shows how the Fifth Circuit’s new way of reviewing ERISA cases, changed in Ariana M. v. Humana in 2018, is applied in district court.

The case of Pike v. Hartford Life and Accident Insurance Company, __F.Supp.3d__, 2019 WL 1375178 (E.D. Tex. Mar. 27, 2019) is one of the most extensively briefed disability cases under the new de novo standard of review. Ms. Pike suffered from chronic back pain and degenerative disc disease, After eight years of paying the claim, Hartford terminated it, arguing that Ms. Pike was now able to work in other occupations. After the parties submitted their briefs and participated in a 2 hour oral hearing, the Court issued a detailed opinion in favor of Ms. Pike. Hartford then filed 5 main objections: (1) the report misstated the insurance policy’s definition of “disability”, (2) the report relied on old medical records to support its conclusion that Ms. Pike was still disabled, (3) the report applied a “treating physician rule” that favored Ms. Pike’s physicians over Hartford’s, (4) the report relied on Ms. Pike’s subjective complaints of pain instead of “objective medical evidence”, and (5) the report improperly “cherry-picked” from the administrative record.

The Court rejected all of Hartford’s arguments. In doing so, it cited to evidence that it found more probative than Hartford’s evidence. The Court also cited to cases that explained the nature of de novo review and how it is to be applied in this context. Under de novo review, its role is to independently weigh the facts and opinions to determine if Ms. Pike met her burden to show she was disabled under the terms of the Hartford policy. Hartford’s previous decision to terminate Ms. Pike’s claim did not get any deference. This means the Court must resolve material questions of fact, assess expert credibility, and weigh the evidence.

What’s the takeaway lesson? The ripples from Ariana M. continue to resonate in the district courts. Insurance companies who deny disability claims are no longer getting the benefit of doubt, and courts are making independent determinations. This helps further the goal of ERISA, which is to protect the interest of employees.

Contact a Houston Disability Insurance Lawyer Today

If you have had your legitimate disability insurance claim wrongfully denied by an insurer, undervalued, or unreasonably delayed, then it’s important to get in touch with an experienced Texas disability insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance. With the aid of a qualified attorney, you can effectively and timely appeal the denial of benefits. If the internal appeal is unsuccessful, we are prepared to represent you in court.

When is an Appeal Too Late?

At Berg Plummer Johnson & Raval, we often get involved in our clients’ cases at an early stage. The following highlights the risks of waiting too long to get a lawyer involved in your disability claim.

On February 20, the First Court of Appeals issued an opinion that changes the way many disability appeal deadlines are calculated. In Fortier v. Hartford Life & Accident Ins. Co., __F.3d__, 2019 WL 697989 (1st Cir. Feb. 20, 2019), the Court held that the 180-day time limit to appeal an adverse benefit determination began to run from the date of the notice of the determination, not the date the benefits would be terminated. Here’s how the Court reached its conclusion.

Ms. Fortier received long-term disability benefits under a group disability plan insured by Hartford Life & Accident Insurance Company. The policy provided a limited 24 month period of benefits for disabilities caused by mental illness. Hartford approved Fortier’s LTD claim. In September 2011, it advised that her benefits would terminate in the future on November 1, 2011 due to the policy’s limited pay period for disabilities caused by mental illness. Fortier hired a lawyer who filed an appeal on her behalf. The appeal was approved, and Hartford reinstated her benefits. But in a letter dated July 13, 2013, Hartford again advised that it would terminate her claim due to the same limited disability provision. Now benefits would terminate after September 12, 2013. 

Fortier did not appeal within 180 days, although she sent an appeal letter 2 months after the deadline. Hartford decided that the appeal was too late and refused to review it. Fortier filed suit, and Hartford argued that Fortier’s claims should be dismissed because she failed to timely appeal. Fortier responded that the 180 day appeal deadline should run from the date of the termination of benefits, not from the date of notice. The First Circuit disagreed, ruling that the 180-day time limit to appeal an adverse benefit determination starts from the date notice is given. The court also explained that nothing in the ERISA regulations is undermined by insurance companies applying deadlines strictly against claimants. 

What’s the takeaway lesson? Don’t rely only on the date that the insurance company tells you benefits will terminate. You may have to appeal even before that termination takes effect. ERISA is full of potholes for the unwary.  

Contact a Houston Disability Insurance Lawyer Today

If you have had your legitimate disability insurance claim wrongfully denied by an insurer, undervalued, or unreasonably delayed, then it’s important to get in touch with an experienced Texas disability insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance.  With the aid of a qualified attorney, you can effectively and timely appeal the denial of benefits.

Why Government Plans Are Exempt From ERISA

If you have been denied benefits provided through an employer-sponsored plan, your claim will generally fall under the Employee Retirement Income Security Act (ERISA). ERISA is a federal law that governs most employee benefit plans. While ERISA was originally enacted to safeguard employees’ retirement and pension benefits, its reach and scope has been expanded over the years. 

But not all employee benefit plans fall under ERISA. When Congress crafted ERISA, it wanted to reduce abuses in the system for private employee pensions. However, it decided that state and local governments should be free to decide the best way to protect their employees. This became an established part of the law. Under ERISA, a government plan means any plan “established or maintained” by the federal government, a state government or political subdivision, or by any agency or instrumentality of any of the foregoing. 29 U.S.C. §1002(32). Courts have defined “established” to include plans created under a collective bargaining agreement between a government unit and a union. 

This means that employees who fall under the government plan exemption are not subject to ERISA. There are many reasons why it is beneficial to get out from ERISA’s reach. Like other states, Texas has laws governing life, accidental death, disability, and health insurance that are more fair to insurance claimants and allow them to sue an insurance company for breach of contract, insurance bad faith, and punitive damages. Emotional distress damages and other damages caused by insurance company’s bad faith may be recoverable under Texas law but are not recoverable in ERISA cases. 

Determining whether a matter is governed by ERISA can be a complex process, but this is one factor to keep in mind when a plan may be established or maintained by the government. If you have been denied ERISA benefits, a Houston ERISA attorney at Berg Plummer Johnson & Raval, LLP can help you file a case and recover the compensation you deserve. For more information on filing an ERISA claim, call our firm today at (713) 526-0200 or contact us online to schedule a consultation. Our lawyers offer unique, cost-effective fee arrangements and will fight for your rights throughout the entire duration of your case.

Proton Therapy Treatment Approved After Insurer Initially Denied Claim

Proton Therapy Treatment Approved After Insurer Initially Denied Claim

There is a tension in the American health care system between innovative medical procedures designed to save or prolong patients’ lives against the financial costs of that treatment. This tension has long simmered in proton therapy treatment of cancer. Standard radiation therapy has improved over the years and effectively controls many cancers. However, X-ray beams tend to deliver radiation to healthy tissues along with the tumor site. It can damage the normal tissue or organs near the tumor. The advantage of proton therapy is that the beam can be specifically targeted to conform to the shape and depth of a tumor, sparing healthy tissues and organs. It is cleared by the FDA and approved by Medicare as an effective treatment for cancer.

MD Anderson Cancer Center in Houston has pioneered the use of proton therapy and is one of the only centers in the world offering this type of targeted cancer treatment. Even though many patients travel from around the world to benefit from proton therapy, many local patients benefit from the treatment as well. Randy Montgomery was one of those people. Born and raised in Texas, Mr. Montgomery was a former country radio show host and voice-over actor in commercials. He depended and relied on his voice for his profession. In 2017, he got the news that too many people get: he was diagnosed with oral cancer.

After multiple tests, Mr. Montgomery learned that traditional radiation therapy would destroy healthy tissue in his neck and throat, potentially damaging his taste buds, jaw, thyroid, and voice box. However, proton therapy would avoid all of those harmful side effects.  Mr. Montgomery applied for coverage of this treatment with Blue Cross Blue Shield (“BCBS”), his health insurance company. BCBS denied the claim, contending that proton therapy was “unproven”. It then denied three different rounds of appeals from Mr. Montgomery and the cancer experts at MD Anderson. Mr. Montgomery was forced to pay for 33 treatments out of his own pocket.

With few options left, Mr. Montgomery turned to his state representative for assistance. The representative requested that the Texas Department of Insurance look into the matter. Not long afterwards, BCBS paid for 27 of the 33 proton therapy treatments. But before long, BCBS reversed its decision, claiming that it made the payments “in error”. This falls in line with statistics from the Alliance for Proton Therapy’s research showing that insurance companies deny 2 out of every 3 claims for proton therapy treatment.

Mr. Montgomery refused to quit. He wrote an article in the Houston Chronicle about his struggle that was published on September 26, 2018[1]. His story was also picked up by other news sources[2]. Five days later, BCBS finally approved his proton therapy treatment.

At Berg Plummer Johnson & Raval, we have represented clients whose claims for proton therapy treatment have been denied. Whether you have been denied coverage for proton therapy treatment or another medical procedure, it’s vital that you connect with a qualified attorney as soon as possible so that the claims at-issue can be properly evaluated.  Get in touch with an experienced health insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance with your health insurance claim.

Amar Raval

Berg Plummer Johnson & Raval, LLP

araval@bergplummer.com

[1] https://www.houstonchronicle.com/opinion/outlook/article/My-cancer-lost-but-my-insurer-is-winning-in-13258326.php?cmpid=gsa-chron-result

[2]  https://www.texomashomepage.com/news/local-news/local-man-fights-insurance-company-over-payment-of-cancer-treatment/1480053198

Fifth Circuit Explains Breach of Fiduciary Remedies and Need for Complete Plan Documents

An important case out of the Fifth Circuit issued earlier this week outlines several issues related to ERISA. However, we want to highlight its explanation of the scope of ERISA’s equitable remedies, as well as its impact on ERISA penalty claims for failing to produce relevant Plan documents. Manuel v. Turner Indus. Grp., L.L.C., No. 17-30835, 2018 WL 4689974 (5th Cir. Oct. 1, 2018).  

Michael Manuel worked for Turner Industries Group LLC and participated in its group short and long term disability plan. The Plan was insured and administered by Prudential Insurance Company of America. Under the Plan, benefits were payable when participants submit proof of disability “satisfactory to Prudential.” However, the Summary Plan Description (“SPD”) gave Prudential the “sole discretion” to interpret the Plan. Manuel requested plan documents from Turner. The company initially provided the SPD and a Group Insurance Certificate. It later provided the Group Insurance Contract.  

After exhausting his administrative remedies, Manuel sued Turner and Prudential for various violations under ERISA and state law. The district court rejected all of Manuel’s claims. However, the three judge panel reversed and remanded the district court’s dismissal of Manuel’s claims for fiduciary breach and failure to provide Plan documents against Turner and his claim for plan benefits against Prudential.  

In his breach of fiduciary duty claim, Manuel alleged that Turner breached its fiduciary duties in failing to timely provide a SPD that complied with ERISA requirements. Manuel claimed that an SPD was not provided to him within 90 days after he enrolled in the Plan and that the SPD failed to comply with ERISA because it did not include the Plan’s preexisting condition exclusion, reimbursement provision, or delegation of interpretive discretion to Prudential. The Court determined that Manuel’s claims for injuries relating to SPD deficiencies are cognizable under ERISA §502(a)(3).  

Manuel also sought penalties against Turner under ERISA §502(c) because the company did not provide the appropriate formal written and signed plan document. The district court determined that Manuel received all of the documents to which he was entitled. The Fifth Circuit disagreed because Turner produced documents that were different from what Prudential provided in the administrative record.   

The Court explained that ERISA mandates more than the production of a valid SPD upon request for plan documents. Here, there was a question whether the amendment contained in the Prudential administrative record was a formal legal document governing the Plan. If the amendment was valid, then Turner should have produced it. The Fifth Circuit thus reversed and remanded the district court’s resolution of Manuel’s ERISA §502(c) claim. If Manuel can prove that a penalty could be assessed, the district court must consider if any such penalty is appropriate.  

Claimants who are not provided proper Plan documents from the employers should review this opinion carefully, as it provides valuable guidance about the types of remedies that are available under ERISA.

Mississippi Judge Finds “Decades-Long” Pattern of Misconduct by Reliance Standard in Disability Cases

A judge in the Southern District of Mississippi found a “decades-long pattern of arbitrary claim denials and other misdeeds” by Reliance Standard in long term disability cases[1]. The facts of the case are relatively routine, but the end result is not. Ms. Nichols stopped working at a chicken processing factory due to circulatory system disorders. Reliance Standard admitted that she could not work in cold temperatures, but it denied her claim after its vocational expert found that Nichols’ occupation as performed in the national economy did not require her to be exposed to cold.

Judge Carlton Reeves concluded that Reliance Standard’s decision was “unsupported by any evidence, let alone substantial evidence.” The court then took an expansive look at more than 100 decisions in the last 21 years criticizing Reliance Standard’s disability decisions. Of those, 60 opinions were very critical of its claims administration. The court also noted that Reliance Standard did not submit any evidence showing that it had taken steps to mitigate its conflict of interest. It concluded that Reliance Standard abused its discretion by denying Nichols’ benefits.

The most unique aspect of this case comes from the remedy, as the court ordered Reliance Standard to pay all past due benefits and future benefits. The court’s rationale was explained thusly:

Many courts have, after recounting Reliance’s abuses, ordered the insurer to pay benefits and attorney’s fees. Apparently these costs have not caused Reliance to change course, as it has spent decades ignoring them with impunity—perhaps treating them as the price of doing business. In future cases, courts may be asked to order further relief to curb Reliance’s perceived abuses. That relief can be quite broad.

Because few cases include an award of future benefits, it will be informative to see how this case is decided[2]. This may also show the way for how other courts in the future weigh appropriate relief in an individual case against a long history of abuse by insurance companies administering disability benefit claims.

[1] Nichols v. Reliance Standard Life Ins. Co., No. 3:17-CV-42-CWR-FKB, 2018 WL 3213618 (S.D. Miss. June 29, 2018)

[2]  The case was appealed to the Fifth Circuit Court of Appeals on July 12, 2018.

Fifth Circuit Court Reverses the Denial of Accidental Death Insurance Benefits in a West Nile Virus Case

On March 22, 2018, the Fifth Circuit Court of Appeals — in Wells v. Minnesota Life Insurance Co., where the defendant-insurer denied accidental death coverage to the plaintiff under her husband’s accidental death mortgage  insurance policy — reversed the ruling of the lower district court on  our client’s (the plaintiff Gloria Wells)  breach of contract claim against the insurer for their denial of accidental death benefits.  The district court had earlier dismissed our plaintiff’s claims on summary judgment, but the Fifth Circuit Court determined that there were genuine disputes of material facts as to whether the death of the husband qualified for accidental death coverage under the accidental death insurance policy.

Worth noting: The Fifth Circuit Court affirmed (e.g. confirmed) the district court ‘s ruling in dismissing the bad faith claims since the insurance company had at least a reasonable basis to deny benefits according to the Fifth Circuit. A petition for rehearing on this issue is pending.

As such, the Court remanded the case back to the lower court so that a jury could decide the disputed facts.  The decision of the Fifth Circuit Court of Appeals to reverse and remand has given our client a fresh opportunity to have her breach of contract claim evaluated with full consideration of the facts. For additional information and comments from our Houston attorney, Jim Plummer, see the article published by the Texas Lawyer.

The Case at a Glance

The Minnesota Life Insurance Co. policy was a declining balance mortgage insurance policy intended to pay off the balance of the insured’s mortgage in the event of the accidental death of its insured.  Here, the plaintiff’s husband — Melton Dean Wells — was bitten by a mosquito carrying West Nile Virus, unbeknownst to him.  Melton went to the hospital for diagnosis and treatment, as he was suffering from a broad range of symptoms that included fever, headache, and altered mental status.  The doctors soon diagnosed Melton with West Nile encephalitis, which is caused by the West Nile Virus (transmitted to humans by infected mosquitos).  Within just three weeks, Melton’s body significantly deteriorated, and he died of respiratory failure, multi-system organ failure, and septic shock resulting from West Nile encephalitis.

Melton’s death certificate classified that his death from West Nile encephalitis as “natural, as opposed to accidental.

When Melton’s wife —  Gloria Wells — submitted a claim for accidental death benefits under their accidental death mortgage insurance policy with Minnesota Life Insurance Company, the insurer denied her claim for benefits, asserting that her husband’s death was not due to “accidental bodily injury” and therefore not covered by the policy.  They further asserted that her husband’s West Nile encephalitis had been exacerbated by his pre-existing conditions of obesity, diabetes, and hypertension, along with his age at the time of death (68 years old).

Gloria then filed suit against the defendant-insurer for breach of the insurance contract and bad faith in federal court.

The federal district court dismissed all of Gloria’s claims holding that: a) her husband’s death was not solely caused by West Nile encephalitis, and was instead caused by septic shock, acute respiratory failure, and multi-system organ failure, as noted on the death certificate; b) there was not enough evidence to show that the mosquito bite constituted an accident under the policy; and c) there was no evidence of a visible mosquito bite.  The court further held that even if those factors had been met, a policy exclusion (“Exclusion Four”) would prevent coverage since the death was caused by an illness or disease.  Minnesota Life variously asserted the illness or disease exclusion was Melton’s obesity, diabetes, high blood pressure and his age or those conditions listed on the death certificate.

The denial of her claim left Gloria Wells to struggle with the responsibility for a mortgage on their recently purchased home. 

Believing the district court’s decision was in error, we appealed the decision of the district court.

Does the Mosquito Bite Constitute an Accident Under the Policy?

Minnesota Life’s accidental death mortgage insurance policy provided accidental death coverage only where the insured’s death results from an unintended, unexpected, and unforeseen accidental bodily injury.

The defendant argued (and the district court agreed) that a mosquito bite — particularly in the state of Texas — is not unexpected or unforeseeable.  Our client, however, argued that while mosquito bites may not necessarily be unexpected or unforeseeable in Texas, it is rare for mosquitoes to carry West Nile virus, and as such, it is certainly an unexpected and unforeseeable event to be bitten by a Culex mosquito, the carrier of the West Nile virus.

Worth noting is that the policy does not outright define accidental bodily injury.  Thus, what is accidental is ambiguous and open to interpretation.  The Fifth Circuit Court determined that the bite itself was an external physical force (not an internal bodily process) that gave rise to an unfortunate and unforeseen result.

The defendant attempted to argue that the mosquito bite could not have been accidental since the death certificate indicated that the death was “natural,” but the Fifth Circuit Court was not convinced noting that though the death certificate evidence was some evidence death was natural, the determination of whether an event is accidental is determined by reference to the policy definition of accidental injury.

Was West Nile Virus the Sole Cause of Death?

The policy only provided accidental death coverage when the accidental bodily injury is the sole cause of death.  That bodily injury must also be independent of all other causes. Thus, even if death resulted from an accidental bodily injury, there was no coverage if one of these exclusions applied.   The policy contained 10 exclusions from coverage one of which excluded from coverage death caused “directly or indirectly” by or results from, or there is a contribution from” a “bodily … infirmity, illness or disease.”  This led to a rather tricky situation where Minnesota Life argued Melton’s death was excluded from coverage because of his various conditions (obesity, diabetes, age, etc.)  along with the other contributing causes of death from the death certificate all in addition to the West Nile encephalitis.

Gloria argued, however, that her husband’s various bodily conditions could not have concurrently caused (in other words, “contributed to”) his death if the complications he suffered directly and exclusively resulted from one specific cause: the accidental bodily injury.  Here, the accidental bodily injury was the infected mosquito bite.  Put in simpler terms, Melton would not have died of his various pre-existing conditions unless he had contracted West Nile encephalitis from the mosquito.  The Fifth Circuit Court agreed, and determined that the septic shock, respiratory failure, and multi-system organ failure that Melton suffered were not separate conditions but actually developed as a result of his West Nile encephalitis.

Essentially, the Court determined that any conditions that develop after an accidental injury cannot serve as concurrent causes that preclude coverage.

The Bite Wound Could Be Reasonably Inferred

Though there was no direct evidence of a wound or contusion indicating the Melton had suffered a mosquito bite, Gloria argued that a jury could reasonably infer that her husband had suffered a mosquito bite (and that this had led to a wound or contusion), given that he had clearly contracted West Nile encephalitis, which is most commonly spread by infected mosquitos.

Though the Fifth Circuit Court agreed that there might have been other ways for Melton to have contracted West Nile encephalitis, they determined that a jury could reasonably find that the evidence supported Gloria’s inference argument.

The Fifth Circuit reversed that portion of the district court’s opinion granting summary judgment against Gloria Wells on her breach of the insurance policy and return this case to the district court for a trial on the merits before a jury.  The Fifth Circuit affirmed the district court’s summary judgment on Wells bad faith claims. 

Fifth Circuit Court Overrules the Abuse of Discretion Standard in ERISA Denial of Benefits Cases

On March 1, 2018, the en banc Fifth Circuit Court of Appeals — in Ariana M. v. Humana, an ERISA health benefits case where the plan administrator denied benefits — ruled in favor of our plan participant client, Ariana M., and in doing so, overturned twenty-six years of precedent. This landmark decision brings the Fifth Circuit in line with eight other federal Circuit Courts in applying the de novostandard of review to factual determinations in Employee Retirement Income Security Act (ERISA) denial of benefits cases. Before this decision, the Fifth Circuit Court applied the “abuse of discretion” standard for factual determinations in accordance with Pierre v. Connecticut General Life Insurance Co., 932 F.2d 1552 (5th Cir. 1991).

Unfamiliar with these two standards of review?  No need to worry — they’re actually quite simple.

When a court applies the de novo standard of review, it does not defer to the decision of the ERISA benefits plan administrator. It considers the issue as though it were doing so with a “blank slate,”.

When a court applies the abuse of discretion standard of review, it is expected to defer to the decision of the ERISA benefits plan administration, unless the decision is found to be unreasonable.

Under Pierre, the Fifth Circuit’s application of de novo review was unique: it would review legal interpretations by the ERISA plan administrator de novo, but it would only review factual determinations on an abuse of discretion. This is no longer the law. Though the district court in Ariana M. v. Humana determined that the plan administrator did not abuse its discretion in denying benefits to our client, the judgment of the en banc Fifth Circuit Court (which vacated and remanded the case for further proceedings)  requires that the plan administrator’s determination now be evaluated de novo on both factual and legal grounds, giving our client an opportunity to have the wrongful denial of her benefits fairly evaluated. So how did we get here?

Application of the Abuse of Discretion Standard Led to Inconsistency

As the only Circuit Court that continued to apply the abuse of discretion standard of review to factual determinations made by an ERISA plan administrator in denial of benefits cases, the Fifth Circuit spent decades in isolation from the developments occurring in the other Circuit Courts. In the ERISA context, this inconsistency was deemed untenable by the en banc Fifth Circuit Court, as it conflicted substantially with the interest of ERISA in promoting uniformity across jurisdictions. Under this regime, where the Fifth Circuit deferred to the Pierre abuse of discretion standard in evaluating ERISA denial of benefits, plan participants were subject to substantially different consequences than if had they resided in the jurisdiction of another Circuit Court.

ERISA Plan Administrators Are Not Necessarily Entitled to Discretion

In Pierre, the court reasoned that an administrator’s factual determinations are inherently discretionary, and thus determined that deference must be given to an ERISA plan administrator’s factual determinations, even when the plan does not include a discretionary clause. The court in Pierre supported application of the abuse of discretion standard in evaluating an ERISA plan administrator’s factual determinations in a denial of benefits case by analogizing it to the deference afforded by courts when reviewing agency decisions.

However, the en banc Fifth Circuit Court wrote that the analogy utilized by the court in Pierre was inapposite. Agencies and trial judges are required to apply an established and well-developed set of procedural protections, and must be impartial, whereas a plan administrator is incentivized to act on behalf of its own interests. Where procedural safeguards are lacking, such as in denial of benefits decisions made by ERISA plan administrators, de novo review is appropriate.

Effect of Texas Anti-Delegation Law

In their en banc opinion, the Fifth Circuit Court decided that section 1701.062 of the Texas Insurance Code, which prohibits insurance policy discretionary clauses (and encompasses any provision that specifies an abuse of discretion standard of review), does not apply to the standard of review for federal courts deciding ERISA denial of benefits cases. This approach arguably goes against the plain text of the Texas statute as well as its legislative history. The Court also left open the possibility, however remote, that the Texas statute might be preempted under ERISA.

However, the Court got around the applicability of Texas law by simply changing the very nature of de novo review.

Efficiency is Not Served by the Abuse of Discretion Standard

In Pierre, the court predicted that de novo review of denial of benefits determinations by plan administrators would be highly burdensome on the court system and deplete ERISA plan funds unjustifiably. More than twenty-six years of experience by the other eight circuit courts applying de novo review has proven otherwise. De novo review does not deplete plan funds or burden the court system to any significant degree, and gridlock in the system can be avoided through summary judgment, when appropriate.

Consequences for Future ERISA Denial of Benefits Cases

The decision of the en banc Fifth Court in the present case will almost certainly cause a shakeup with regard to ERISA denial of benefits claims. Under Pierre, the court deferred to the factual determinations made by the plan administrator, and it was extremely challenging for a plan participant — such as our client, Ariana M. — to demonstrate that the plan administrator had been clearly unreasonable in exercising their discretion.

Under the de novo standard, by contrast, ERISA plan participants in the Fifth Circuit will have their benefits determination assessed as though it were being presented for the very first time. The court will not defer to the decision of the plan administrator. Instead, the court will consider the evidence with fresh eyes.

In light of this shift from a stricter to a broader, more participant-friendly standard, ERISA plan participants in the Fifth Circuit will be in a more advantageous position when having their denial of benefits claim evaluated in court. This approach better serves the purpose of ERISA, which is to protect the interests of employees.

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