United States Court of Appeals For the First Circuit

No. 19-1879

JANE DOE,

Plaintiff, Appellant,

v.

HARVARD PILGRIM HEALTH CARE, INC.; THE HARVARD PILGRIM PPO PLAN MASSACHUSETTS, GROUP POLICY NUMBER 0588660000,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Torruella, Selya, and Kayatta, Circuit Judges.

Mala M. Rafik, with whom Sarah E. Burns and Rosenfeld & Rafik, P.C. were on brief, for appellant. Steven L. Schreckinger, with whom Jane M. Guevremont and Anderson & Kreiger LLP were on brief, for appellees.

September 9, 2020 KAYATTA, Circuit Judge. Jane Doe spent several months

of 2013 at a residential mental health treatment center,

interrupted by several days in an inpatient hospital in June of

that year. The Defendants ("Harvard Pilgrim") agreed to cover the

costs of Doe's treatment at the residential facility, the Austen

Riggs Center ("Riggs") in Massachusetts, for her first few weeks

there, as well as the months after her stint in an inpatient unit.

However, Harvard Pilgrim denied coverage for the time period from

February 13, 2013, through June 18, 2013, asserting that Doe could

have stepped down to a lower level of treatment during those

months. Doe sued Harvard Pilgrim in the District of Massachusetts

seeking de novo review of her claim for coverage of that time

period under the Employee Retirement Income Security Act

("ERISA"), 29 U.S.C. §§ 1001–1461. Following an earlier appeal,

the district court entered judgment for Harvard Pilgrim on remand.

Doe now appeals both that judgement and the district court's

refusal to award Doe attorneys' fees for her success on the prior

appeal. For the following reasons, we affirm the district court's

rulings.

I.

Our previous opinion in this case reviewed in detail the

events giving rise to this litigation. See Doe v. Harvard Pilgrim

Health Care, Inc.,

, 2–6 (1st Cir. 2018) (Doe I). For

the purposes of this appeal, we set out a short summary of the

- 2 - relevant facts here: Doe began experiencing serious symptoms of

psychological illness during her first year of college in 2012 and

was hospitalized twice over the course of a few months. On

January 17, 2013, Doe was admitted to Riggs. Harvard Pilgrim

approved initial coverage of her treatment there for seven days.

Harvard Pilgrim eventually extended Doe's coverage through

February 5, but on that date sent Doe a letter stating that her

treatment at Riggs would not be covered as of February 6. Doe

initiated an expedited internal review of the decision, which

Harvard Pilgrim denied on February 12, 2013, based on a report by

Dr. Michael Bennett. Harvard Pilgrim accepted coverage through

February 12, and otherwise stood by its denial. Subsequently, on

March 12, 2013, an anonymous, independent expert retained by the

Massachusetts Office of Patient Protection ("OPP") also upheld

Harvard Pilgrim's denial of coverage for a continued stay at Riggs,

albeit beginning as of February 13, not February 6.

During the course of these reviews, Doe remained at Riggs

for treatment. On June 18, however, Doe was transferred from Riggs

to inpatient treatment at Berkshire Medical Center. She was then

readmitted to Riggs from Berkshire Medical Center on June 24.

Although Harvard Pilgrim initially denied coverage for Doe's

second admission to Riggs (beginning on June 24, 2013), it reversed

that decision after an internal review by Dr. Edward Darell

- 3 - concluded that the second admission was medically necessary. Doe

was finally released from Riggs on August 7, 2013.

Doe filed this case against Harvard Pilgrim in March

2015. Harvard Pilgrim's Medical Director, Dr. Joel Rubenstein,

conducted another review in September 2015 and concluded that

Harvard Pilgrim had properly denied coverage. Harvard Pilgrim

then agreed to reconsider that decision. Doe I,

.

That reconsideration generated further information and medical

opinions, including two offered by Doe (by Drs. Gregory Harris and

Eric Plakun), all of which Harvard Pilgrim reviewed as the parties

agreed.

. After Harvard Pilgrim reaffirmed its decision

denying coverage for the time period at issue, the parties filed

cross-motions for summary judgment.

. The district court

restricted its review to the administrative record as of March 12,

2013, and therefore did not consider records generated or exchanged

during Harvard Pilgrim's reconsideration of its denial. See Doe

v. Harvard Pilgrim Health Care, Inc., No. 15-10672,

, at *10–11 (D. Mass. Oct. 11, 2017). Ultimately, the

district court agreed with Harvard Pilgrim and entered summary

judgment dismissing Doe's claim. See id. at *15. On Doe's appeal,

we vacated the judgment, ruling that the district court should

include in the record and consider the additional material

generated as a result of Harvard Pilgrim's agreement to conduct a

supplemental review of additional information, as well as other

- 4 - information produced in the interim (letters from Doe's treating

psychologist, Dr. Sharon Krikorian, and documents relating to

Doe's second admission, including a report from Dr. Edward

Darell). Doe I,

, 6–9, 11. We also clarified that,

in the event of a second appeal, we would review the district

court's factual findings only for clear error.

at 9–11. On

remand, the district court again granted summary judgment for

Harvard Pilgrim, and Doe now appeals a second time.

II.

A.

1.

As we explained previously, "[i]n the ERISA context,

'the burdens and presumptions normally attendant to summary

judgment practice do not apply.'" Doe I,

(alteration omitted) (quoting Stephanie C. v. Blue Cross Blue

Shield of Mass. HMO Blue, Inc.,

, 425 n.2 (1st Cir.

2016) (Stephanie C. I)). Instead, a summary judgment motion in a

lawsuit contesting the denial of benefits under ERISA "is simply

a vehicle for teeing up the case for decision on the administrative

record."

(citing Doe v. Standard Ins. Co.,

, 123

n.3 (1st Cir. 2017)). Unless discretionary authority has been

granted to the plan administrator, the district court considers

the issues de novo and "may weigh the facts, resolve conflicts in

evidence, and draw reasonable inferences." Stephanie C. v. Blue

- 5 - Cross Blue Shield of Mass. HMO Blue, Inc.,

(1st

Cir. 2017) (Stephanie C. II) (citing Orndorf v. Paul Revere Life

Ins. Co.,

(1st Cir. 2005)). Thus, "summary

judgment in the ERISA context is akin to judgment following a bench

trial in the typical civil case." Doe I, 904 F.3d at 10–11. As

a result, we review the district court's factual findings for clear

error. Id. at 11.

2.

Doe's family's plan from Harvard Pilgrim provides

coverage only for treatment that is "medically necessary." The

plan defines "medically necessary" treatment as:

Those health care services that are consistent with generally accepted principles of professional medical practice as determined by whether: (a) the service is the most appropriate supply or level of service for the Member's condition, considering the potential benefit and harm to the individual; (b) the service is known to be effective, based on scientific evidence, professional standards and expert opinion, in improving health outcomes; and, (c) for services and interventions that are not widely used, the service for the Member's condition is based on scientific evidence.

To determine medical necessity in the context of mental

health treatment, Harvard Pilgrim employs the Optum Level of Care

Guidelines from United Behavioral Health ("the Guidelines").

Under the Guidelines, residential treatment is defined as

"provid[ing] overnight mental health services to members who do

- 6 - not require 24-hour nursing care and monitoring offered in an acute

inpatient setting but who do require 24-hour structure." The

parties agree that Riggs provides such residential treatment. In

order for such treatment to be medically necessary, the plan member

must meet one of the three following criteria:

1. The member is experiencing a disturbance in mood, affect or cognition resulting in behavior that cannot be safely managed in a less restrictive setting. - OR -

2. There is an imminent risk that severe, multiple and/or complex psychosocial stressors will produce significant enough distress or impairment in psychological, social, occupational/educational, or other important areas of functioning to undermine treatment in a lower level of care. - OR -

3. The member has a co-occurring medical disorder or substance use disorder which complicates treatment of the presenting mental health condition to the extent that treatment in a Residential Treatment Center is necessary.

No party argues that Doe met the third criterion; instead, Doe

maintains that she qualified for residential treatment under the

first two criteria. The district court -- like Harvard Pilgrim

-- found that Doe did not meet either of the first two criteria as

of February 13, 2013.1

1 For continued care after initial approval, the Guidelines require -- among other things -- that "[t]he criteria [listed above] for the current level of care continue to be met" and "[t]he member's current symptoms and/or history provide evidence that relapse or a significant deterioration in functioning would be imminent if the member was transitioned to a lower level of care."

- 7 - Doe's overarching argument on appeal is that the expert

reports that formed the basis for Harvard Pilgrim's denials of

coverage improperly used an incorrect standard of care,

essentially requiring that she need 24-hour nursing care, even

though the Guidelines state explicitly that residential treatment

should be available "to members who do not require 24-hour nursing

care and monitoring offered in an acute inpatient setting but who

do require 24-hour structure." Specifically, the OPP reviewer

justified his or her decision based on finding "no evidence that

the patient required 24 hour supervision or nursing care," and Dr.

Rubenstein's report similarly repeatedly references "24 hour care"

as the relevant benchmark without mentioning the Guideline's

language of "24-hour structure." (The only other expert in the

record to conclude that the first admission was not necessary after

February 13, 2013, Dr. Bennett, did not reference the Guideline

language at all.)

We disagree with Doe: It was not clear error for the

district court to rely on these reports despite their references

to "24-hour care." To begin, it was hardly error for the experts

to cite the lack of any need for round-the-clock care in the first

place. The experts would have erred only if they opined that a

Because we uphold the district court's decision that the standard for the current level of care was not met as of February 13, it follows that the criteria for continued care were not met at that point.

- 8 - need to receive such care was necessary to qualify for the

coverage. The district court did not commit clear error in opting

not to read the expert reports in that manner. The OPP report in

particular based its conclusion on a finding that Doe did not need

"24 hour supervision or nursing care" (emphasis added).

More generally, when read in context, the references to

24-hour care can be understood as referring to the availability of

such care as provided by Riggs. Thus, even Doe's own expert,

Dr. Harris, referred to Doe's repeated accessing of 24-hour

nursing care during the night, presumably intending to say only

that Doe needed nursing care to be available around the clock, not

that she needed care to be actively provided for 24 hours each

day. The district court's opinion can then be read to explain

that Doe did not require 24-hour "structure" either. For example,

the district court considered the length and frequency of Doe's

trips away from Riggs (totaling nearly twenty days away) and the

ways in which she utilized the services that were available to her

there and concluded that all Doe needed was a system in which she

could access nursing care each day to arrange a plan for safely

managing her symptoms at night if necessary. Although Doe argues

that the district court should not have assumed Doe would have

that ability at a lower level of care, she has not developed the

record on why a partial hospitalization program would have been

insufficient.

- 9 - Doe's further arguments are similarly unavailing given

the clear error standard of review. Although Doe argues that the

district court should have drawn different inferences from facts

including her difficulty with interpersonal relationships inside

and outside Riggs, her difficult but perhaps supportive

relationship with her family, her ability to ask for and access

the services she needed at Riggs, the "casual" tenor of her

interactions with nursing staff, and her ability to spend time

away from Riggs for recreation and other personal reasons during

her admission, we do not believe the district court clearly erred

in making the inferences that it did, many of which were supported

by the Bennett and Rubenstein reports. Nor do we fault the

district court for relying on evidence that Doe's condition had

stabilized on medication leading up to the February 13 date. While

Doe's condition obviously deteriorated at some point after that,

it was not clear error for the district court to conclude that, at

least at that point, her continued stay at Riggs was not medically

necessary.

Finally, Doe complains that the district court accepted

the opinions of Harvard Pilgrim’s experts "without weighing their

conclusions against the weight of the record." We disagree. The

district court clearly reviewed the record as a whole, drawing

inferences from both the facts and the expert opinions. We find

- 10 - no clear error in the fact that the district court implicitly

agreed more with Harvard Pilgrim's experts than with Doe's.

B.

We turn now to Doe's argument that the district court

erred in the manner in which it conducted the proceedings on

remand.2 The district court treated as comprising the record

everything compiled by or submitted to Harvard Pilgrim in the

course of making its final coverage decision, as we ordered in

Doe I,

. It then allowed the parties to submit

extensive written argument directed to that record. Finally, it

held oral argument and issued a decision.

In so proceeding, the district court did exactly what

the law called for. Judicial review of a benefits denial under

(a)(1)(B) takes the form of a review of "final ERISA

2 Harvard Pilgrim -- viewing Doe's argument specifically as an argument for a Rule 52 bench trial on the papers -- maintains that Doe has waived the argument, because she neither sought a Rule 52 bench trial explicitly before the appeal to this court in Doe I, nor on remand. Instead, on remand she moved for an evidentiary hearing with witnesses. To the extent Doe is requesting a bench trial without additional witness testimony, that argument fails, too. She has not explained how such a bench trial on the papers would be different from the de novo review the district court conducted. See Doe I, 904 F.3d at 10–11 (explaining that "summary judgment in the ERISA context is akin to judgment following a bench trial in the typical civil case"). At oral argument, she posited that the district court might have given counsel more opportunity to make their arguments if it had been conducting a Rule 52 bench trial. But of course a district court always has the option to conduct oral argument on summary judgment motions (as it did here) -- how much time is allotted for that purpose is up to the district court in either situation.

- 11 - administrative decision."

at 6 (quoting Orndorf,

). As such, we presume -- absent some very good reason to do

otherwise -- that the record is limited to the record compiled by

and submitted to the administrative decisionmaker leading up to

and including its final administrative decision.

(citing

Liston v. UNUM Corp. Officer Severance Plan,

(1st

Cir. 2003) ("[A]t least some very good reason is needed to overcome

the strong presumption that the record on review is limited to the

record before the administrator.")).

Doe offers no good reason for why the district court

should not have proceeded in accord with this "strong presumption"

against supplementing the administrative record. Liston,

. The case presents no claim that Harvard Pilgrim's process

of decision-making was unlawful or that the administrator

exhibited a conflict of interest. Nor does Doe claim that

materials were improperly omitted from the record on remand, or

that the district court did not comply with our decision in

defining the record to be reviewed.

Instead, Doe simply argues that she would have preferred

that the various experts testify and be subject to cross-

examination, as if this were an insurance coverage dispute under

state law, rather than judicial review of an administrator's

benefit decision under ERISA. That is an argument that we long

ago rejected. Orndorf,

(explaining that judicial

- 12 - review does not "warrant calling as witnesses those persons whose

opinions and diagnosis or expert testimony and reports are in the

administrative record").

Doe argues that we should not rely on Orndorf here

because Orndorf employed a standard of appellate review that has

since been rejected in this Circuit. See Doe I, 904 F.3d at 9–10

(explaining the difference in appellate standards of review used

in prior circuit cases). But Orndorf's description of the record

to be reviewed by the district court did not hinge on its

definition of the standard of review on appeal. Rather, as Doe I

explains, we have consistently held that the record before the

district court should match the record reviewed by the

administrative decisionmaker absent some special circumstance.

(applying Orndorf and Liston to determine the

scope of the record despite our move to a clear error standard of

review).

C.

Finally, Doe appeals the district court's denial of her

request for attorneys' fees and costs resulting from the litigation

of the case up through our decision in Doe I. ERISA allows a court

"in its discretion [to] allow a reasonable attorney's fee and costs

of action to either party."

(g)(1). A court may

award fees whenever a party has showed "some degree of success on

the merits." Hardt v. Reliance Standard Life Ins. Co., 560 U.S.

- 13 - 242, 245 (2010) (quoting Ruckelshaus v. Sierra Club,

(1983)); see Gastronomical Workers Union Loc. 610 & Metro.

Hotel Ass'n Pension Fund v. Dorado Beach Hotel Corp.,

(1st Cir. 2010). Such a result must be more than a "trivial

success" or "purely procedural victor[y]." Hardt, 560 U.S. at 255

(alteration in original) (quoting Ruckelshaus,

n.9); see Gastronomical Workers,

(requiring a

"merits outcome [that] produces some meaningful benefit for the

fee-seeker").

Doe argues that our previous remand to the district court

defining the scope of the record and clarifying the clear error

standard of review made her eligible for attorneys' fees under

ERISA. In so arguing, she relies primarily on Gross v. Sun Life

Assurance Co. of Can.,

(1st Cir. 2014). In Gross,

instead of reviewing a district court's denial of fees, we decided

the claimant's eligibility for fees in the first instance and

remitted to the district court to decide the appropriate amount.

. We reasoned that an ERISA claimant was eligible

for fees where we had previously remanded to the district court

with instructions to remand to the plan administrator for a new

review of the claim.

at 77–78.

We need not decide, however, whether Doe's win in Doe I

makes her eligible for attorneys' fees under ERISA. That is

because the district court alternatively held that "[e]ven

- 14 - assuming arguendo that Hardt and Gross apply and Jane is eligible

for an award of attorneys' fees . . . such award is not warranted

here." The standard guiding the district court's discretion in

this analysis is set out in Cottrill v. Sparrow, Johnson & Ursillo,

Inc.,

(1st Cir. 1996). See Gross,

("Although the Supreme Court in Hardt emphasized that the multi-

factor tests traditionally used by courts to decide whether to

award fees do not bear on the eligibility for fees under

section 1132(g)(1), it allowed such inquiries as a second step to

determine whether a claimant found eligible should be awarded fees.

We continue to find useful the five factors delineated in our

precedent." (internal citation omitted)). The factors "that

customarily should be weighed in the balance" are the following:

(1) [T]he degree of culpability or bad faith attributable to the losing party; (2) the depth of the losing party's pocket, i.e., his or her capacity to pay an award; (3) the extent (if at all) to which such an award would deter other persons acting under similar circumstances; (4) the benefit (if any) that the successful suit confers on plan participants or beneficiaries generally; and (5) the relative merit of the parties' positions.

Cottrill,

(citing Gray v. New Eng. Tel. & Tel.

Co.,

, 257–58 (1st Cir. 1986)).

In its written opinion, the district court explained

its view that only the second factor weighed in Doe's favor. We

- 15 - find no legal or clear factual error in that exercise of the

district court's discretion. Doe argues that Harvard Pilgrim

failed to adhere to its previous "clear agreement" as to the scope

of the administrative record, making it more culpable than the

district court appreciated under the first factor, and that without

a fee award Harvard Pilgrim will not be held accountable for its

behavior. Doe I,

. But Doe I concerned a fact-

specific procedural issue that is unlikely to arise often, and

Harvard Pilgrim's position on that issue, although ultimately

unsuccessful, was reasonable enough to convince the district

court. See

at 6–9. Doe also complains that the district court

considered her subsequent loss in deciding whether to award fees

for her interim gain. But because the degree of success on the

merits may be considered in deciding whether an award of fees is

potentially available in the first place, Hardt, 560 U.S. at 245,

we see no reason why the district court in its discretion cannot

consider whether and to what extent an interim procedural victory

actually produced any benefits. See Gross,

(explaining that the Cotrill factors are not exclusive).

III.

This case is not an easy one. Ascertaining coverage

levels for mental illness can be challenging. Doe was represented

by skilled and knowledgeable counsel who helped her put her

strongest case forward. That case, though, failed to sway either

- 16 - the independent OPP reviewer or the district judge who conducted

yet another independent and de novo review. Establishing clear

error on appeal on such a record poses a difficult challenge for

the same reasons that the coverage decision itself was difficult.

Finding that Doe has not overcome that challenge, we affirm the

district court's grant of summary judgment to the defendants and

its denial of fees and costs to Doe.

- 17 -