How Can an ERISA Plaintiff Recover Attorneys’ Fees in the Fifth Circuit?

On June 29, 2020, the Fifth Circuit Court of Appeals – in Katherine P. v. Humana, an ERISA health benefits case where the plan administrator denied benefits – ruled against our client, Katherine P., concluding that she was not currently entitled to attorneys’ fees. This ruling came one month after the same court ruled in favor of Katherine, reinstating her case and sending us back for a bench trial later this year. How did we get here, and what does it mean for other ERISA plaintiffs in the Fifth Circuit?

Factual Background

In 2012, Katherine was a 21-year-old who was suffering from a severe eating disorder, related physical ailments, and bipolar disorder. When she followed the advice of her doctors and sought a more intensive partial hospitalization treatment protocol for her mental health disorders, Humana initially approved this treatment under her plan, which promises to pay for all medically necessary mental health treatment. But after only 12 days, and without examining Katherine or speaking with her treating providers, Humana determined that this treatment was no longer medically necessary. It immediately stopped paying for the treatment, leaving Katherine and her family financially responsible for the rest of her treatment. Fortunately, they were able to personally pay for the final two and a half months of treatment.

Katherine filed an appeal with Humana, providing all of her medical records, plus other evidence showing that her treatment was medically necessary. Humana denied the appeal, forcing Katherine to file this lawsuit in February 2014.

The Mihalik Criteria v. The Plan

The central issue in this case is whether Katherine’s ongoing treatment was medically necessary. The Plan defines medically necessary as “health care services that a health care practitioner exercising prudent clinical judgment would provide” that are “[i]n accordance with nationally recognized standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the convenience of the patient” or her providers, and “[n]ot more costly than an alternative” that would be just as effective. “Medically necessary” services must also have a grounding in “standards that are based on credible scientific evidence.”

Rather than rely on the Plan, Humana instead relied on something called the Mihalik Criteria, a set of guidelines created for the insurance industry that it has tried to keep secret from the public. The Criteria provide four factors for determining if partial hospitalization is medically necessary. Per the criteria, partial hospitalization is medically necessary if a patient meets the first two factors (ED.PM.1 and ED.PM.2) and either one of the last two (ED.PM.3 and ED.PM.4). Humana determined that Katherine did not meet two of these criteria. The district court granted Humana summary judgment, concluding that Katherine failed ED.PM.3 and the ED.PM.4.2 sub-criteria.

Fifth Circuit’s Analysis

In this lawsuit, Katherine argued that Humana’s medical record reviewers were biased, unqualified, and used improper criteria in reviewing the claim. In the May 14, 2020 opinion, the Fifth Circuit found evidence that there was a genuine dispute about whether Katherine met the ED.PM.4.2 sub-criteria. The ED.PM.4.2 requires that a patient show that “[t]reatment at a less intense level of care has been unsuccessful in controlling” her eating disorder. The Court found evidence that Katherine met that requirement. For example, in her last appeal to Humana, Katherine provided a declaration describing her history of failed treatment. In it, she listed past failed treatment regimens, including outpatient treatment. Her mother likewise provided a declaration with the same evidence. Furthermore, Katherine’s physicians said she was “unable to follow a weight gain meal plan and to abstain from symptoms of purging and restricting while she was at a lower level of care.” The Court noted that although it would not give her doctors’ opinions “special weight,” it was competent summary judgment evidence.

The Court found that summary judgment for Humana was inappropriate. it thus remanded the case back to the district court for a bench trial. The district court will have the ability to decide exactly how this trial will proceed. For instance, it could have oral argument, review the administrative record, then make findings of fact and conclusions of law.

The Attorneys’ Fee Issue

Based on the Court’s May ruling, Katherine filed a motion for her attorneys’ fees. Under ERISA, a court may award attorneys’ fees “in its discretion”. 29 U.S.C. §1132(g)(1). The party seeking fees does not have to be a prevailing party, and it is entitled to fees if it can show “some degree of success on the merits”. Because Katherine’s case was revived from the dead and remanded back for a bench trial, she sought her reasonable attorney’ fees for the successful appeal. Humana responded by personally attacking Katherine’s lawyers, arguing that the case was driven by their greed and that their rates were unreasonably high.

On June 29, the Fifth Circuit concluded that its discretion to award attorneys’ fees under these facts was limited. In denying Katherine’s motion, the Court stated that Katherine had not achieved any success on the merits: her victory was “purely procedural” because the Court was simply allowing her to proceed forward with her claim.

Consequences for Future ERISA Attorneys’ Fees Cases

The decision of the Fifth Court in this case shows a lack of willingness to award attorneys’ fees to plaintiffs when they successfully fight off summary judgment in appeal. Although the Court noted some factual arguments that might justify Katherine’s success at trial, it would not award attorneys’ fees for keeping the case alive to actually get to trial.

What does this mean for other ERISA plaintiffs in the Fifth Circuit? Unless you are a prevailing party on the merits of your case, your chances of recovering your attorneys’ fees are not great. After all, the Court already ruled last year that overturning 26 years of caselaw and fundamentally changing the standard of review in the Fifth Circuit was not enough to justify attorneys’ fees. (“Securing a change in the standard of judicial review of Humana’s factual determinations is certainly a procedural success, but it’s not success on the merits of Ariana’s benefits claim.”). Ariana M. v. Humana Health Plan of Tex., Inc., 792 F. App’x 287, 290 (5th Cir. 2019), cert. denied, 591 U.S. ____ (U.S. June 22, 2020) (No. 19-980).

There is a Circuit split on when ERISA plaintiffs can recover attorneys’ fees after winning at the appellate level. The U.S. Supreme Court has decided that issue is not currently ripe, but perhaps it will change its mind in time. Although the Fifth Circuit has shifted to a broader, more participant-friendly standard of review, ERISA plan participants in the Fifth Circuit must remind courts that ERISA’s purpose is to protect the interests of employees.

In the meantime, Katherine’s case proceeds to trial. At trial, the district will get a second chance to review whether Katherine’s partial hospitalization treatment was medically necessary. Humana had previously approved only 12 days out of Katherine’s nearly three month stay. If Katherine “achieves some success on the merits on remand, she may ask for these fees then.” Katherine P. v. Humana, June 29, 2020.

FIfth Circuit Remands ERISA Eating Disorder Case for Bench Trial

On May 14, 2020, the Fifth Circuit Court of Appeals – in Katherine P. v. Humana, an ERISA health benefits case where the plan administrator denied benefits — ruled in favor of our plan participant client, Katherine P., sending us back for a bench trial later this year. At trial, the district will get a second chance to review whether Katherine’s partial hospitalization treatment was medically necessary. Humana had previously approved only 12 days out of Katherine’s nearly three month stay.

In coming to this decision, the Court applied the de novo standard of review that was previously modified in Ariana M. v. Humana. 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”.

Link to oral argument by Mr. Raval:
http://www.ca5.uscourts.gov/OralArgRecordings/19/19-50276_2-5-2020.MP3

Factual Background

In 2012, Katherine was a 21-year-old who was suffering from a severe eating disorder, related physical ailments, and bipolar disorder. When she followed the advice of her doctors and sought a more intensive partial hospitalization treatment protocol for her mental health disorders, Humana initially approved this treatment under her plan, which promises to pay for all medically necessary mental health treatment. After only 12 days, however, and without examining Katherine or speaking with her treating providers, Humana determined that this treatment was no longer medically necessary. It immediately stopped paying for the treatment, leaving Katherine and her family financially responsible for any further treatment. Fortunately, they were able to personally pay for the final two and a half months of treatment.

Katherine filed an appeal with Humana, providing all of her medical records, as well as other evidence showing that her treatment was medically necessary. Humana denied the appeal, forcing Katherine to file this lawsuit in February 2014. The case has taken many twists and turns: it has transferred from one district to another, had two separate rounds of summary judgment briefing, been on hold while part of the claim was remanded back to Humana, and then appealed to the United States Court of Appeals for the Fifth Circuit.

Humana Used Mihalik Criteria to Deny Claim

The central issue in this case is whether Katherine’s ongoing treatment was medically necessary. The Plan defines medically necessary as “health care services that a health care practitioner exercising prudent clinical judgment would provide” that are “[i]n accordance with nationally recognized standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the convenience of the patient” or her providers, and “[n]ot more costly than an alternative” that would be just as effective. “Medically necessary” services must also have a grounding in “standards that are based on credible scientific evidence.”

Rather than rely on Plan language, Humana instead relied on something called the Mihalik Criteria, a set of guidelines created for the insurance industry that it has tried to keep secret from the public. The Criteria provide four factors for determining if partial hospitalization is medically necessary. Per the criteria, partial hospitalization is medically necessary if a patient meets the first two factors (ED.PM.1 and ED.PM.2) and either one of the last two (ED.PM.3 and ED.PM.4). Humana determined that Katherine did not meet two of these criteria. The district court granted Humana summary judgment, concluding that Katherine failed ED.PM.3 and the ED.PM.4.2 sub-criteria.

Fifth Circuit’s Analysis

On appeal, Katherine argued that Humana’s medical record reviewers were biased, unqualified, and used improper criteria in reviewing the claim. The Fifth Circuit did not address those issues. However, it found evidence that there was a genuine dispute about whether Katherine met the ED.PM.4.2 sub-criteria.

The ED.PM.4.2 requires that a patient show that “[t]reatment at a less intense level of care has been unsuccessful in controlling” her eating disorder. The Court found evidence that Katherine met that requirement. For example, in her last appeal to Humana, Katherine provided a declaration describing her history of failed treatment. In it, she listed past failed treatment regimens, including outpatient treatment. Her mother likewise provided a declaration with the same evidence. Furthermore, Katherine’s physicians said she was “unable to follow a weight gain meal plan and to abstain from symptoms of purging and restricting while she was at a lower level of care.” The Court noted that although it would not give her doctors’ opinions “special weight,” it was competent summary judgment evidence.

The Path Forward

The Court found that summary judgment for Humana was inappropriate. it thus remanded the case back to the district court for a bench trial. The district court will have the ability to decide exactly how this trial will proceed. For instance, it could have oral argument, review the administrative record, then make findings of fact and conclusions of law.

Consequences for Future ERISA Denial of Benefits Cases

The decision of the Fifth Court in this case shows a willingness for the Court to conduct an exhaustive and careful de novo review of the facts of these types of claims. It shows an ongoing trend that 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. It has already helped Katherine, who will finally have the chance to have her day in court.

Link to Full Opinion:

Katherine P. v. Humana Health Plan of Texas, Inc.

How Long Terms Disability Can Help COVID-19 Survivors in the Recovery Process

As the world continues to deal with the fallout of COVID-19 and how it has impacted the economy, health industry, and daily lives of billions of people, scientists are pointing out new evidence about the potential long term effects of COVID-19. Some COVID-19 survivors will never recover completely from a condition known as post-intensive-care-unit syndrome. Dr. Amy Bellinghausen, a pulmonary and critical care fellow at the University of California, San Diego, notes that it can produce long-term disabilities from muscle wasting, organ damage, brain damage, and PTSD.

One of the most common problems among ICU survivors is weakness and fatigue. “That whole time in the ICU, they’re losing muscle mass. People lose 20,30,40 pounds over a week or two.” Use of a ventilator, while necessary for survival, can also affect recovery. “Unfortunately, oftentimes when they’re coming off the ventilator, it’s not the same person who went on the ventilator,” Bellinghausen says. As a result, daily actiivites that many of us take for granted –  walking a pet, going up a flight of stairs, doing household chores – become exceedingly difficult.

Many COVID-19 patients will also have organ damage, which can be caused by the virus itself, or the extreme measures used to keep them alive. This can lead to scarring in the lungs, impaired kidney function, or damage to other organs as well. The brain is especially vulnerable. That’s partly because the drugs used to sedate patients while on a ventilator can have lasting effects on memory and thinking. Also, COVID-19 patients whose lungs are badly impaired in the ICU tend to have low oxygen levels, which can also cause brain damage.

On the psychological side, patients delirious from fever or sedation can feel trapped in a hospital where they are connected to machines that have taken control of their bodily functions. They must avoid excessive movement, as it can unhook machines and tubes. In extreme cases, patients can be forcibly restrained. All that can contribute to paranoia and symptoms of PTSD.

Patients with life-threatening COVID-19 seem to be especially vulnerable to post-ICU syndrome, says Dr. Negin Hajizadeh, a pulmonary critical care doctor at the Donald and Barbara Zucker School of Medicine at Hofstra-Northwell in New York. One reason is that the severity of infection forces patients to spend weeks on a ventilator, not just days. “The longer you are on the breathing machine, the steeper the road to recovery,” Hajizadeh says.

As a result, many COVID-19 survivors will need months or years of rehabilitation. This is where long term disability insurance can help. Long-term disability benefits are intended to replace earned income for an extended period of time. While short-term disability benefits may expire after six months, long term disability benefits often last until retirement age (i.e., age 65 or older) or until you have sufficiently recovered so that you can return to work. The assumption of long-term disability coverage is that the long-term disability at-issue will not necessarily be fully resolved. If you do recover within a limited timeframe, then short-term disability benefits can assist during that time.

For example, if you contract COVID-19 in Houston or elsewhere, you may qualify for short and/or long-term disability insurance coverage. Insurers may attempt to lower their payouts by arguing that your health condition is such that you are only partially disabled, not fully disabled. If you are capable of working a lower-paying job, then the insurer will assert that you should work in the alternative position and they will pay out lower benefits or no benefits as a result. Some insurers may even argue that you are fully capable of working your job from home and thus are not disabled at all. With the aid of a skilled Houston long term disability lawyer, however, you can demonstrate that you are not able to work in your own occupation and are still qualified to receive full benefits. While the road to recovery may be arduous, it should not be complicated by the wrongful denial of long term disability benefits.

When going out in public in Harris County or elsewhere, the CDC suggests the following precautions, along with any other respiratory illness:

  • Avoid close contact with people who are sick.
  • Avoid touching your eyes, nose, and mouth.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
  • Wash your hands with soap and water for a minimum of 20 seconds. 

If we can ever be of assistance with your disability claim, please contact us. We are all in this together.

*Information from interviews and other source material courtesy of National Public Radio.

https://www.npr.org/sections/health-shots/2020/04/21/840343240/after-the-icu-many-covid-19-survivors-face-a-long-recovery

Business Interruption Claims and the Coronavirus Pandemic

Last week, a New Orleans restaurant filed what is believed to be the first lawsuit in the United States seeking insurance to cover losses from government-mandated closures due to the Coronavirus pandemic. As with many other claims, the primary dispute turns on the coverage provided under the “civil authority” provision. That coverage, in turn, may hinge on still developing science on how long the virus can remain in properties.

Oceana Grill argued in its complaint that the civil authority prong of its “all risk” property policy with Lloyd’s of London should cover its lost revenue after Louisiana issued a statewide order that sharply limited the size of public gatherings and required restaurants to stop on-site dining. This scenario has played out all across the country, especially in the past two weeks, as federal, state, and local orders have issued restricting the size of public gatherings and shuttering countless businesses. Many business are expected to grapple with the issue in the coming days, weeks, and months.

Like many civil authority provisions, the Lloyd’s of London policy requires that a government restriction stem from a “direct physical loss” — or damage — to a nearby property for coverage to apply. The restaurant appears to contend that this requirement was met when Louisiana’s governor and New Orleans’ mayor outlined their concerns that the Coronavirus could contaminate and damage public spaces.

The civil authority provision in many “all risk” policies requires that there be an actual direct physical loss. This loss requirement is unresolved, as the unsettled  science around the Coronavirus evolves on a near daily basis. There is no consensus in the scientific community regarding how long the Coronavirus can survive on surfaces or materials. One study issued  by the New England Journal of Medicine indicated it can survive on cardboard for up to a day and on plastic and stainless steel for up to 72 hours.

As policyholders and insurance companies get more involved in litigation over civil authority coverage disputes, they may well turn on factors currently unknown. Parties are likely to turn to scientific experts to determine if, and how long, the Coronavirus contaminated buildings. This may be influenced by the virus’s lifespan on a surface, as well as the risk of future re-contamination. In other words, re-contamination might constitute a continually renewing physical loss. Others may contend that the loss of functionality of a building is sufficient to constitute physical loss.

In the upcoming days, weeks, and years, businesses and individuals may suffer many billions of dollars in damages – some of which may be recoverable in court. Berg Plummer Johnson & Raval, LLP is available to assist you with business interruption claims with your insurers. To help to determine how to address your business interruption insurance claim and whether your coronavirus claim is actionable, call us at (713) 526-0200 or contact us online.

Force Majeure Contract Clauses and the Coronavirus Pandemic

With the rapid decline in the world economy as a result of the coronavirus/COVID-19, businesses of all kinds are experiencing interruption unprecedented since the Great Depression. Contracts of sale, transport, employment – all kinds of transactions are affected. Some contract terminations will be excused, others unlawful.

Many “cancelled,” or breached contracts may be excused because of what’s known in law as force majeure, a force which prevents compliance. In some cases, parties may use the outbreak as a pretext to breach contracts with which they may otherwise be obligated to comply. In other cases, the outbreak may serve as justification for the cancellation of a contract.

In the upcoming days, weeks, and years, businesses and individuals may suffer many billions of dollars in damages – some of which may be recoverable in court. Likewise, business and individuals may be party to a contract which they believe they are prevented from performing. Berg Plummer Johnson & Raval, LLP is available to assist you in bringing, defending, or advising you concerning any contract claim or concern you have. To help to determine how to address your contracts and whether your coronavirus claim is actionable, call us today at (713) 526-0200 or contact us online.

How to Apply for Disability Benefits During the Coronavirus Pandemic

Although many Americans have been and will be affected by COVID-19, there is an available resource: long-term disability insurance. Long-term disability benefits are intended to replace your earned income for an extended period of time. While short-term disability benefits may expire after six months, long term disability benefits often last until retirement age (i.e., age 65 or older) or until you have sufficiently recovered so that you can return to work. The assumption of long-term disability coverage is that the long-term disability at-issue will not necessarily be fully resolved. If you do recover within a limited timeframe, then short-term disability benefitscan assist during that time.

For example, if you contract COVID-19 in Houston or elsewhere, you may qualify for short and/or long-term disability insurance coverage. Insurers may attempt to lower their payouts by arguing that your health condition is such that you are only partially disabled, not fully disabled. If you are capable of working a lower-paying job, then the insurer will assert that you should work in the alternative position and they will pay out lower benefits or no benefits as a result. Some insurers may even argue that you are fully capable of working your job from home and thus are not disabled at all. With the aid of a skilled Houston long term disability lawyer, however, you can demonstrate that you are not able to work in your own occupation and are still qualified to receive full benefits.

CORONAVIRUS BACKGROUND: 

According to the Center for Disease Control, Coronavirus (COVID-19) is a family of viruses that is spreadable from person to person. Coronavirus is believed to have been first detected in a seafood market in Wuhan, China in December 2019. If someone is sick with Coronavirus, the symptoms they may show include mild to severe respiratory illness, cough, and difficulty breathing.


Although there is not yet a vaccine, the CDC suggests the following precautions, along with any other respiratory illness:

  • Avoid close contact with people who are sick.
  • Avoid touching your eyes, nose, and mouth.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
  • Wash your hands with soap and water for a minimum of 20 seconds. 

We encourage you to follow all government recommendations to practice social distancing, limit contact with others, and ensure that the elderly and immune compromised in our society are not exposed to Coronavirus. If we can ever be of assistance with your disability claim, please contact us. We are all in this together.

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.