PHILIP BERNSTEIN, Personal Representative of the Estate of
Jeffrey Bernstein, Plaintiff-Appellant, v. CAPITALCARE,
INCORPORATED, Defendant-Appellee. WHITMAN-WALKER CLINIC,
Legal Services Department; LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INCORPORATED, Amici Curiae.
No. 94-2448
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
70 F.3d 783; 1995 U.S. App. LEXIS 33671; 19 E.B.C. 2280
September 27, 1995, Argued
December 4, 1995, Decided
PRIOR HISTORY: Appeal from the United States District Court for the
Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge.
(CA-94-622-A).
DISPOSITION: VACATED AND REMANDED WITH INSTRUCTIONS
COUNSEL: ARGUED: Jacqueline Elizabeth Bennett, HUDGINS, CARTER & COLEMAN,
Alexandria, Virginia, for Appellant.
Charles Joseph Steele, FOLEY & LARDNER, Washington, D.C., for Appellee.
ON BRIEF: Richard D. Carter, HUDGINS, CARTER & COLEMAN, Alexandria, Virginia,
for Appellant. Mary Atchley Jester, FOLEY & LARDNER, Washington, D.C., for
Appellee.
Elizabeth A. Seaton, Dinah G. Wiley, WHITMAN-WALKER CLINIC, Washington, D.C.;
Catherine Hanssens, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New
York, for Amici Curiae.
JUDGES: Before MICHAEL and MOTZ, Circuit Judges, and CHAPMAN, Senior Circuit
Judge. Senior Judge Chapman wrote the opinion, in which Judge Michael and Judge
Motz joined.
CHAPMAN, Senior Circuit Judge:
This is a declaratory judgment action under section 502(a)(1)(B) of the
Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. @ 1132(a)(1)(B),
to
determine entitlement to health benefits under an employee welfare benefit plan.
Plaintiff-Appellant, Philip Bernstein ("Philip"), brought this action
as the personal representative of the estate of his brother, Jeffrey Bernstein
("Jeffrey"), who died of AIDSrelated complications in July 1992. Philip claims
that Jeffrey was entitled to coverage under his health plan with
Defendant-Appellee, CapitalCare, Inc. ("CapitalCare"), for his hospitalization
at the New York Hospital from May 6, 1992 to July 8, 1992. Jeffrey was a member
of a health maintenance organization ("HMO") operated by CapitalCare in the
Washington, D.C. area.
On cross-motions for summary judgment,
the district court ruled that Jeffrey's hospitalization was not covered
by the CapitalCare plan. The court
based its conclusion on a provision in the plan agreement that
excludes medical services rendered outside of the plan's service area
if the need for those services was reasonably foreseeable.
The court found that Jeffrey's need for
care was reasonably foreseeable because he was in the end stages of AIDS. In
addition, the court determined that CapitalCare substantially complied with
ERISA's requirements for notifying beneficiaries of a denial of benefits.
Philip appeals the district court's order.
For the reasons that follow, we determine that the
district court erred by
applying the wrong standard of review and by
improperly considering evidence that was not before the plan administrator.
The administrative record before Appellee at the time of the benefit
determination
contained insufficient evidence to allow the district court to adequately
review
the denial of benefits. Accordingly, we vacate the district court's ruling and
remand with instructions to
remand the case to the plan administrator for reconsideration
of this matter in light of the complete evidentiary record.
Because Appellant will thus have an opportunity for a full and fair
administrative review, we do not address his assertion that CapitalCare's
denial
letter failed to substantially comply with ERISA's notification requirements.
I.
Jeffrey Bernstein was diagnosed as HIV positive in 1986 or 1987. In addition,
he had a history of psychological problems and had previously been treated for
manic/depressive condition.
Jeffrey lived in the Washington, D.C. area and practiced law there until the
fall of 1991, when he retired on disability because of his declining health.
After his retirement, he continued his health coverage, which was
provided through a group plan sponsored by his former employer and insured by
CapitalCare.
In February 1992, Jeffrey went to New York to visit friends and to do some
fundraising work for a New York theater. While he was in New York, his
psychological condition worsened, and his brother Philip involuntarily committed
him to the psychiatric facility at the New York Hospital's Westchester Division
("Westchester"), where he was treated for dementia. n1 Jeffrey's condition
eventually stabilized, and an MRI scan of his brain performed shortly before his
discharge from the hospital showed normal results. He was released from
Westchester on March 23, 1992.
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n1 CapitalCare paid for Jeffrey's hospitalization at Westchester.
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The hospital formulated a discharge plan for Jeffrey's care upon his release.
Under the discharge plan, he was to live in New York with Philip and receive
round-the-clock nursing supervision at Philip's home. n2 The discharge plan also
provided that he was to receive follow-up medical treatment from Dr.
Jonathan Jacobs, an AIDS specialist in New York, and receive follow-up
psychiatric treatment to be arranged through Dr. Jacobs. Philip stated in an
affidavit that Jeffrey's arrangements for living and receiving medical treatment
in New York were temporary and that Jeffrey intended eventually to return to his
home in Washington, D.C. J.A. at 187-88.
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n2 The discharge summary in Jeffrey's medical records indicates that the
24-hour nursing supervision was recommended not as acute care, but rather to
prevent Jeffrey from injuring himself. Jeffrey apparently suffered some
AIDS-related impairment in his motor skills and occasionally tripped over his
left foot. In addition, his infection affected his mental functions, and he
would occasionally exercise poor judgment or get confused, and could get lost
easily. J.A. at 125-26.
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After Jeffrey was released from Westchester, he began to implement the
discharge plan. He moved in with Philip and began to receive 24-hour nursing
care in Philip's apartment. He saw Dr. Jacobs on March 31, 1992 and
arranged to have return visits on an outpatient basis every six weeks. And he
began to see New York psychiatrist Dr. David Pelino on an outpatient basis. n3
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n3 Philip does not seek coverage from CapitalCare for the costs of Jeffrey's
24-hour nursing care or routine medical services received in New York.
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In late April 1992, Jeffrey went with Philip and Philip's former girlfriend,
Claire Campbell, to Washington, D.C. for a short visit. While there, Jeffrey
checked on his personal belongings in his condominium, reviewed his mail, took
care of some everyday errands, such as picking up his dry cleaning and buying
groceries, and went to dinner with some of his friends. Jeffrey returned with
Philip and Claire to New York two or three days later.
On May 6, 1992, Philip took Jeffrey to the emergency room at the New York
Hospital's Cornell Medical Center because, according to Philip, Jeffrey had
begun to exhibit new, stroke-like symptoms. Jeffrey was admitted to
the hospital the next day. He was initially treated for toxoplasmosis,
but when he did not respond to the treatment, the doctors pursued other possible
indicators. He was eventually diagnosed with CNS lymphoma, a form of brain
cancer.
On May 8, 1992, the day after Jeffrey's admission to the hospital, Philip
contacted CapitalCare to notify it of Jeffrey's hospitalization. CapitalCare
sent Jeffrey a letter on May 13, 1992 informing him that it would not provide
benefits for his hospitalization, because under the HMO agreement "benefits are
not provided for members living outside the Washington, DC service area when
'the need for care could have been foreseen.'" J.A. at 364.
As Appellee explains, HMOs are not indemnity insurers; rather, they are
managed care organizations which provide comprehensive health care to their
members through a network of selected providers. Under an HMO, members' benefits
are generally limited to a particular service area and to those providers who
are under contract with the HMO. Exceptions are usually made for emergency care
received outside of the service area, provided certain conditions are met.
The CapitalCare Group Enrollment Agreement ("the Agreement") contains
provisions for "out-of-area coverage," which apply "if a Member
requires care while traveling or temporarily residing outside the Service Area
[the Washington, D.C. metropolitan area]." J.A. at 19. The Agreement provides as
follows:
When a Member receives care outside the Service Area, the following requirements
must be met in order to receive benefits.
1. Need for Care. Benefits will be paid or provided for expenses incurred for
treatment of an illness or injury only if CapitalCare determines that:
a. The need for care could not reasonably have been foreseen before departing
the Service Area or sufficiently in advance so as to permit the Member to return
to the Service Area for the care before it became urgent.
b. The care was urgently required.
c. The Member could not without medically harmful results return to the Service
Area to receive treatment from Plan Physicians and Plan Providers.
d. The travel was for some purpose other than the receipt of medical treatment.
e. The services were medically necessary, in the opinion of CapitalCare.
f. The charges were reasonable and do not exceed the amount normally
charged by the provider for similar services or supplies and ordinarily charged
by most providers of comparable services and supplies in the locality where the
services or supplies were received.
J.A. at 19 (emphasis added). In addition, the Agreement contains the following
exclusion: "Benefits will not be provided . . . if the Member could have
foreseen the need for care before it became urgent (for example, full-term
delivery outside the Service Area or periodic chemotherapy or dialysis
treatment)." J.A. at 20 (emphasis added). CapitalCare based its denial of
benefits to Jeffrey on these provisions.
Philip, who is also a lawyer, responded to CapitalCare's denial letter by
sending the HMO a letter on May 31, 1992 providing detailed information in
support of coverage under the Agreement's out-of-area coverage provisions.
Although CapitalCare asserts that it reviewed Jeffrey's claim in light of the
information provided by Philip, it did not send any further correspondence to
Philip confirming its denial of coverage.
In the meanwhile, Philip continued to discuss with CapitalCare any possible
options for Jeffrey's medical care that would be within the HMO's
service area and would therefore be covered by the plan. On July 8, 1992,
CapitalCare approved a facility in Virginia where Jeffrey could receive
treatment under his HMO benefits. Jeffrey was transferred to the Virginia
facility on July 9, 1992, but he died the next day.
Philip filed this declaratory judgment action on May 12, 1994 in the United
States District Court for the Eastern District of Virginia seeking a
determination that the expenses for Jeffrey's medical care from May 6, 1992 to
July 8, 1992 were covered by the CapitalCare plan. Both parties filed motions
for summary judgment, which the district court heard on October 14, 1994. The
district court found that Jeffrey's hospitalization in New York was not covered
by the plan. The court determined that Jeffrey's need for care was reasonably
foreseeable because he was in the end stages of AIDS; thus, the court ruled that
his medical expenses were excluded by the Agreement's out-of-area provisions. In
addition, the district court found that CapitalCare's denial letter
substantially complied with ERISA's notification requirements for informing plan
beneficiaries of a denial of benefits. Accordingly, the district court entered
judgment in favor of CapitalCare and against Philip.
Philip filed a timely notice of appeal on October 21, 1994. He asserts that
the district court erred in concluding that Jeffrey's need for care was
reasonably foreseeable within the meaning of the CapitalCare HMO Agreement.
Also, Philip contends that the district court erred in determining that
CapitalCare substantially complied with the procedural requirements of ERISA @
503, 29 U.S.C. @ 1133, in providing written notice of the benefit denial and
affording a reasonable opportunity for a full and fair review of his claim.
II.
In Sheppard & Enoch Pratt Hosp. v. Travelers Ins. Co., 32 F.3d 120, 123 (4th
Cir. 1994), a recent decision regarding health benefits under ERISA, this court
stated, "In considering a grant of summary judgment, we, of course, review the
district court's decision de novo, employing the same standards applied by the
district court." In examining the propriety of the district court's ruling in
this case, we must first analyze two threshold matters: (1) the appropriate
standard for the district court's review of the plan administrator's denial of
benefits; and (2) the appropriate scope of evidence that may be
reviewed in determining whether the plan administrator's decision was proper.
These issues are somewhat intertwined and set the context for reviewing the
district court's ruling below.
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 103 L. Ed. 2d 80,
109 S. Ct. 948 (1989), the United States Supreme Court held that "a denial of
benefits challenged under [29 U.S.C.] @ 1132(a)(1)(B) is to be reviewed under a
de novo standard unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the
terms of the plan." If the administrator or fiduciary is given discretionary
powers under the plan, his decisions are reviewed for abuse of discretion and
will not be disturbed if they are reasonable. n4 Bruch, 489 U.S. at 111, 115;
Doe v. Group Hospitalization & Medical Services, 3 F.3d 80, 85 (4th Cir. 1993).
Furthermore, when an administrator or fiduciary with discretion is operating
under a conflict of interest such that its decision to award or deny benefits
impacts its own financial interests, "that conflict must be weighed as a 'factor
in determining whether there is an abuse of discretion.'" Bruch, 489 U.S. at 115
(quoting Restatement (Second) of Trusts @ 187, cmt. d (1959)); see also
Doe , 3 F.3d at 87 (holding that when a conflict of interest exists, "the
fiduciary decision will be entitled to some deference, but this
deference will be lessened to the degree necessary to neutralize any untoward
influence resulting from the conflict").
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n4 Appellant actually argues that CapitalCare's decision was arbitrary and
capricious, not merely an abuse of discretion.
Whether there is any significant difference under ERISA between
the "arbitrary and capricious" standard
and the "abuse of discretion" standard
is unclear in this circuit.
See Sheppard & Enoch
Pratt Hosp. v. Travelers Ins. Co., 32 F.3d at 125 n.4 ("We believe the result
would be the same whether the abuse of discretion standard and the arbitrary and
capricious standard are the same or not; therefore, we likewise need not
resolvethe issue [of whether the arbitrary and capricious standard is still
viable after Bruch]."); see also Richards v. United Mine Workers of Am. Health &
Retirement Fund, 895 F.2d 133, 135-36 (4th Cir. 1990) ("Although the 'abuse of
discretion' standard is perhaps broader and less deferential than the 'arbitrary
and capricious' standard, 'arbitrary and capricious' definitely is encompassed
by 'abuse of discretion.'"). Nevertheless, as we concluded in Sheppard, supra,
the difference between the two standards, if any exists, would not be
significant here; thus, we too decline to resolve the issue.
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Appellant contends that the district court failed to apply the correct
standard of review in examining CapitalCare's denial of benefits in this action.
He suggests that under Doe the district court should have reviewed CapitalCare's
decision under a lessened deferential standard because
CapitalCare both insured and administered the plan
and was thus operating under a conflict of interest.
Both parties in this case agree that the HMO Agreement gives to CapitalCare, as
the plan administrator, discretion to make eligibility determinations so as to
trigger an abuse of discretion standard. For example, the Agreement provides,
"CapitalCare may adopt reasonable policies, procedures, rules and
interpretations to promote the orderly and efficient administration of this
agreement." J.A. at 81 (emphasis added). In addition, the out-of-area coverage
provisions of the Agreement state that benefits will be paid "only if
CapitalCare determines" that certain conditions are met. J.A. at 86 (emphasis
added). It is also
uncontroverted that CapitalCare operates under a conflict of interest
when it makes benefit determinations,
because it both administers the plan and pays for benefits
received by its members. In other
words, if CapitalCare denies health benefits to its members, it generally
profits by the amount of expenses avoided. Accordingly, the appropriate standard
of review for the district court to examine CapitalCare's denial of benefits is
the modified abuse of discretion standard of Doe, supra: The district court
should uphold the plan administrator's decision if the decision was reasonable;
and the court should weigh the conflict of interest as a factor in analyzing the
reasonableness of the decision. 3 F.3d at 85, 87. Under the abuse of discretion
standard, the plan administrator's decision is reasonable "if it is the result
of a deliberate, principled reasoning process and if it is supported by
substantial evidence." Baker v. United Mine Workers of Am. Health & Retirement
Funds, 929 F.2d 1140, 1144 (6th Cir. 1991).
Although CapitalCare agrees that Doe's modified abuse of discretion standard
is the proper standard of district court review in this case, it asserts that
the district court actually reviewed the plan's denial of benefits de novo.
According to CapitalCare, the standard of review employed by the district court
should not be an [**16] issue on appeal because the de novo standard is more
favorable to Appellant than the standard of review he advocates. This argument
is not persuasive here.
Determining the appropriate standard of review of the plan administrator's
decision
is important because, among other reasons,
it controls whether the district court may consider evidence
that was not presented to the plan administrator.
In Sheppard & Enoch Pratt Hosp. v. Travelers Ins. Co., supra,
this court held that
when a district court reviews a plan administrator's decision
under a deferential standard,
the district court is limited to the
evidence that was before the plan administrator
at the time of the decision. n5
32 F.3d at 125. The Sheppard opinion reaffirmed this court's pre-Bruch decision
of Berry v. Ciba-Geigy Corp., 761 F.2d 1003 (4th Cir. 1985), in which we stated,
"If the [district] court believed the administrator lacked adequate evidence,
the proper course was to 'remand to the trustees for a new determination,'
not to bring additional evidence before the district court."
Id. at 1007 (citations
omitted). n6 In Berry, we expressed
our concern that the administration of benefit and pension plans
should be the function of the designated fiduciaries,
not the federal courts.
We also emphasized the importance of
promoting internal resolution of claims and encouraging informal and
non-adversarial proceedings under ERISA. Id. at 1007 & n.4.
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n5 In Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th
Cir. 1993), this court held that
a district court has discretion to allow evidence
that was not before the plan administrator
only when the district court reviews a benefit determination
de novo.
Moreover, the court cautioned that such evidence
should be allowed only in exceptional circumstances
when it is clearly established that
"additional evidence is necessary to conduct an adequate de novo review
of the benefit decision." Id.
n6 We did recognize in Berry , however, that in cases
where the fiduciary committed clear error or acted in bad faith,
"a reversal, rather than a remand,
would be within the discretion of the district court." 761 F.2d at 1007 n.3.
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With the foregoing principles in mind, the initial issue in this appeal is
whether the administrative record before CapitalCare at the time of the benefit
determination contained sufficient evidence to allow the district court
adequately to assess the reasonableness of the plan's decision. This threshold
inquiry ensures the plan beneficiary that he or she receives procedural fairness
under the plan and that the plan administrator's decisions are principled and
deliberate. If the district court is to conduct meaningful appellate review of a
benefit determination, even under a deferential standard,
the administrative record must document the decision-making process.
If the evidence before the
plan administrator is inadequate, the district court should remand the case to
the administrator to receive additional evidence and to make a new
determination. Sheppard, 32 F.3d at 125.
The administrative record before CapitalCare at the time it denied benefits
for Jeffrey's hospitalization fails to adequately document the administrator's
decisional process. Indeed, CapitalCare's administrative record contained very
little evidence at all. When CapitalCare made its initial denial on May 13,
1992, only five days after Philip informed it of Jeffrey's
hospitalization, its administrative record contained only four documents in
addition to the denial letter itself: (1) a phone log of calls from late March
1992 relating to Philip's requests for information on converting Jeffrey's
coverage to New York; (2) a phone log reflecting Philip's call of May 8, 1992
informing CapitalCare of Jeffrey's hospitalization; (3) a memo from a
CapitalCare employee relating to Jeffrey's admission to Westchester in February
1992; and (4) notes by a CapitalCare employee relating to Jeffrey's psychiatric
condition at Westchester and the availability of benefits for his care after his
discharge from Westchester. These documents provide little support for
CapitalCare's initial determination that Jeffrey's need for care was reasonably
foreseeable. Furthermore,
no one at CapitalCare had spoken to Jeffrey's physicians
in New York to ascertain the complete circumstances of his
hospitalization. CapitalCare contends that it treated Philip's letter of May 31,
1992 as an appeal and reviewed the claim after receiving Jeffrey's complete
medical records from New York; however, the administrative record contains
no documentation of CapitalCare's internal review process. Appellee did
not send a second denial letter to Philip after his claim was allegedly
reviewed.
In ruling in favor of Appellee, the district court made the following
findings:
Under the specific facts of this case which are basically not in any real
dispute and that is that [Jeffrey] Bernstein was suffering from end stage AIDS,
that he had been recently admitted to a hospital in New York, that he had been
out less than eight weeks, given the medical evidence in the record that's
really not disputed in terms of the instructions from the first hospital in
terms of the need for Mr. Bernstein to have very carefully monitored care, I
think in this case it was reasonably foreseeable that he would need acute
medical attention.
I don't think the issue is really whether you have to know it's for a specific
illness. I think under these facts that summary judgment can be granted and is
going to be granted on behalf of the--in [CapitalCare's] favor on this issue.
J.A. at 74-74. The district court apparently reviewed the evidence de novo and
made its own finding as to foreseeability. However, the district
court's broad generalization about AIDS was not supported by CapitalCare's
administrative record.
Whether Jeffrey's need for care was reasonably foreseeable is a factual
determination that
must be supported by competent medical evidence.
See O'Connor
v. Central Virginia U.F.C.W., 945 F.2d 799, 802 (4th Cir. 1991)
("Deference must
be accorded the determinations of the trustees with respect to the nature and
level of care required so long as those determinations are supported by
substantial medical evidence rendered by qualified medical personnel."). Amici
curiae argue that persons with AIDS undergo widely divergent courses of the
disease from the point they are diagnosed with AIDS until they die
and whether a person can reasonably foresee the need for a particular type of
medical care is an inquiry that is unique to each person and must be addressed
on a case-by-case basis. Certainly, one may presume that at some point in the
progression of an AIDS patient's disease, the need for hospitalization or acute
medical care, because of some AIDS-related complication, would become
foreseeable, because AIDS destroys the patient's immune system and presently
there is no known cure. In addition, the foreseeability of a
particular illness depends on myriad factors, such as the patient's age, the
severity of the disease, and prior history with the particular illness. Such
complex medical determinations are peculiarly within the ken of medical
professionals, not federal judges. Under a deferential standard of review, the
district court's role is limited to determining whether those findings are
supported by substantial evidence.
CapitalCare has conceded that it bears the burden of proving that Jeffrey's
need for medical care was reasonably foreseeable so as to exclude his New York
hospitalization from the plan's coverage. However, the administrative record
does not contain sufficient medical evidence to support its denial of benefits.
Appellee has admitted that
the only physician who participated in the coverage
determination was its medical director,
who is board certified in pediatrics and
has no specialized training in AIDS.
J.A. at 345-36. In addition, as Appellant
asserts, the administrative record does not include evidence, such as the
deposition testimony of Drs. Jacobs and Ross, that was developed only after the
final denial of benefits.
A plan administrator cannot introduce evidence post hoc
to support its benefit determination
when the district court reviews that decision
under a deferential standard.
Halpin v. W.W. Grainger,
Inc., 962 F.2d 685, 697 (7th Cir. 1992); Berry, 761 F.2d at 1007.
We conclude that the administrative record before CapitalCare at the time it
denied benefits for Jeffrey Bernstein's hospitalization was inadequate to allow
the district court to conduct a meaningful review of the decision. During
discovery in this lawsuit before the district court, much relevant additional
evidence has been developed, and the remaining issues have been narrowed.
However, the benefit determination should first be made by the plan
administrator. Berry, 761 F.2d at 1007. Accordingly, we must vacate the district
court's ruling and remand with instructions to remand the case to the
CapitalCare plan administrator to review the evidence that has been developed
since the original denial, to receive additional evidence, and to make a new
determination. See Sheppard, 32 F.3d at 125.
III.
Appellant next asserts that the district court erred in finding that
CapitalCare's denial letter of May 13, 1992 constitutes substantial
compliance with ERISA's requirements for notifying a plan participant of a
denial of benefits. In Sheppard & Enoch Pratt Hosp. v. Travelers Ins. Co.,
supra, we held that substantial compliance with the applicable ERISA regulations
is sufficient. 32 F.3d at 127. We need not address the issue of substantial
compliance here, because, as discussed above, we have already determined that
this action should be remanded for full and fair review of all the evidence. IV.
For the foregoing reasons, the district court's ruling is hereby vacated, and
the case is remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED WITH INSTRUCTIONS