Stephanie C. v. Blue Cross Blue Shield of Mass

16-1997P

2017 | Cited 0 times | First Circuit | March 24, 2017

United States Court of Appeals For the First Circuit

No. 16-1997

STEPHANIE C., Individually and as Guardian of M.G.,

Plaintiff, Appellant,

v.

BLUE CROSS BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC.,

Defendant, Appellee.

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

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

Before

Barron, Circuit Judge, Souter, Associate Justice, and Selya, Circuit Judge.

Brian S. King, with whom Brian S. King, PC and Jonathan M. Feigenbaum were on brief, for appellant. Joseph D. Halpern, with whom Law Office of Joseph Halpern and Donald J. Savery were on brief, for appellee.

March 24, 2017

 Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

SELYA, Circuit Judge. In this case, brought pursuant to

the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§ 1132(a)(1)(B), plaintiff-appellant Stephanie C. (Stephanie)

continues to seek reimbursement for certain expenses connected

with the treatment of her teenage son, M.G. The plan

administrator, defendant-appellee Blue Cross Blue Shield of

Massachusetts HMO Blue, Inc. (BCBS), denied the portions of her

claim that are now in dispute. The district court, reviewing the

denial de novo, upheld BCBS's action. Stephanie appeals. After

careful consideration, we affirm.

I. BACKGROUND

This dispute is no stranger to our court: it comes before

us for a second time. See Stephanie C. v. Blue Cross Blue Shield

of Mass. HMO Blue, Inc. (Stephanie I), 813 F.3d 420 (1st Cir.

2016). Because there is no need to repastinate ground already

well-plowed, we begin by reproducing our earlier summary of how

the case arose.

Stephanie's son, M.G., is a derivative beneficiary of an ERISA-regulated group health insurance plan (the Plan) furnished by his father's employer, Harmonix Music Systems, Inc. (Harmonix). The Plan is denominated as a "Preferred Blue PPO Preferred Provider Plan," the terms of which are set out in a subscriber certificate (the Certificate). In pertinent part, the Certificate makes clear that coverage under the Plan remains subject to a determination of medical necessity made by BCBS. It specifies that the Plan covers treatment for psychiatric illnesses, including biologically based conditions (e.g., autism) and, for children until age nineteen, for non-biologically based conditions (e.g., behavioral

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problems). Such benefits do not accrue for residential, custodial, or medically unnecessary services, such as those performed in "educational, vocational, or recreational settings." The Certificate also stipulates that only the least intensive type of setting required for treatment of a condition will receive approval. Any non-emergency inpatient course of treatment needs approval before the patient is admitted to the facility. . . . . M.G. experienced a number of mental health issues beginning in early childhood. . . . M.G.'s condition intensified in severity in the summer of 2010 (the summer between his freshman and sophomore years in high school). At that time, he became physically aggressive toward his parents and attended weekly mental health therapy sessions. Although enrolled in an intensive outpatient educational facility, he continued to exhibit aggressive behavior that led to multiple arrests. His problems escalated because he steadfastly refused to take medications despite a court order requiring him to do so. Concerned about the apparent inadequacy of his care, Stephanie enrolled M.G. (at her own expense and without prior approval) in Vantage Point by Aspiro (Aspiro), a wilderness therapy program based in Utah, which specializes in neurodevelopmental disorders. M.G. remained at Aspiro from October of 2010 to January of 2011. His psychological evaluators there diagnosed him as having Asperger's Syndrome, anxiety disorder, and attention deficit and hyperactivity disorder. Noticing some improvement, they recommended that he continue therapy in a longer-term setting. On the advice of a consultant and without prior approval, Stephanie proceeded to enroll M.G. in Gateway Academy (Gateway), a private school treatment center in Utah that BCBS insists is "out of network" (that is, not in a contractual relationship with BCBS). While at Gateway, M.G.'s aggressive and emotionally erratic behavior continued; among other things, he engaged in inappropriate sexual contact and committed a variety of petty criminal offenses. In April of 2011, Harmonix submitted claims to BCBS for three sets of psychiatric evaluations and consultation services (performed during the period from January 27, 2011 to February 23, 2011) in connection with M.G.'s admission to Gateway. In late June, BCBS informed Harmonix that Gateway was a non-covered

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provider but that it would cover the three sets of evaluations "as a one-time exception." Gateway itself submitted claims in September of 2011 and March of 2012 seeking reimbursement for principally residential services rendered to M.G. dating back to January of 2011. In an informal process, BCBS denied these room and board claims because the services were not medically necessary and the submitted documentation did not support the need for an inpatient admission. In an explanatory letter dated May 25, 2012, BCBS advised M.G.'s father that its denial of benefits was based largely upon an evaluation conducted by Dr. Elyce Kearns, a psychiatrist-reviewer, who relied upon "InterQual," a nationally recognized set of criteria used to assess the level of care for mental health patients. Given Dr. Kearns' evaluation, BCBS concluded that M.G.'s "clinical condition does not meet the medical necessity criteria required for an acute residential psychiatric stay." About a year later, Stephanie requested and received a sheaf of pertinent records from BCBS. She then contested the denial of coverage through BCBS's internal review process. In support of her appeal, Stephanie furnished documentation from M.G.'s psychotherapists, evaluators, and educators in addition to police reports and juvenile court records. Collectively, these materials described M.G.'s difficulties involving physical and verbal aggression, emotional volatility, lack of impulse control, and thinking errors. This pattern of conduct, Stephanie maintained, posed a danger to M.G. and to others. A second psychiatrist-reviewer, Dr. Kerim Munir, scrutinized the administrative record and recommended that BCBS uphold the denial of benefits. He cited the absence of any medical necessity for the placement and reiterated the conclusions of the first psychiatrist- reviewer. On June 19, 2013, BCBS denied the internal appeal in a letter to Stephanie.

Id. at 423-25 (footnote omitted).

Having exhausted her administrative remedies, Stephanie

sued BCBS in an effort to recover the denied benefits. See 29

U.S.C. § 1132(a)(1)(B). The parties cross-moved for summary

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judgment, and the district court entered judgment in favor of BCBS.

See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc.,

No. 13-13250, 2015 WL 1443012 , at *12 (D. Mass. Mar. 29, 2015).

Stephanie appealed.

We did not reach the merits of Stephanie's appeal but,

rather, focused on a threshold issue, holding that the district

court erred in reviewing BCBS's denial of benefits for abuse of

discretion. See Stephanie I, 813 F.3d at 428-29. We explained

that the court should have reviewed the denial de novo because the

Certificate did not unambiguously confer discretionary

decisionmaking authority on the plan administrator (BCBS). See

id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 ,

115 (1989) (holding that a denial of ERISA benefits "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")). Consequently, we vacated the district court's decision

in relevant part and remanded for reappraisal of the denial of

benefits under the appropriate standard of review. See id. at

429.

On remand, the district court — this time exercising de

novo review — again entered judgment in favor of BCBS. See

Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc.

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(Stephanie II), No. 13-13250, 2016 WL 3636978 , at *4 (D. Mass.

June 30, 2016). This timely appeal followed.

II. STANDARD OF APPELLATE REVIEW

This appeal, like Stephanie's earlier appeal, presents

a standard of review quandary — but one that operates on a

different level. The first time around, we were asked to determine

what standard of review the district court should employ in its

review of the record of proceedings before the plan administrator.

See Stephanie I, 813 F.3d at 428-29. On remand, the district court

performed that task and, as we had instructed, exercised de novo

review. See Stephanie II, 2016 WL 3636978 , at *4. The question

now becomes what standard we should apply in reviewing the district

court's decision.

Stephanie posits that we should undertake de novo review

at the appellate level. Her argument leans heavily on the fact

that the parties presented this case to the district court on

cross-motions for summary judgment. This argument has a certain

superficial appeal: after all, appellate review of a district

court's grant or denial of summary judgment is normally de novo,

see, e.g., Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20 , 25

(1st Cir. 2015); Houlton Citizens' Coal. v. Town of Houlton, 175

F.3d 178 , 184 (1st Cir. 1999), and that standard is not altered by

the incidence of cross-motions for summary judgment, see, e.g.,

Blackie v. Maine, 75 F.3d 716 , 721 (1st Cir. 1996).

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The rationale behind this practice is straightforward.

In the ordinary case, a motion for summary judgment asks the

district court to decide questions of law: does the summary

judgment record, viewed in the light most hospitable to the

nonmovant, reveal the absence of any genuine issue of material

fact and confirm that the movant is entitled to judgment as a

matter of law? See Fed. R. Civ. P. 56(a); Murray, 789 F.3d at 25.

If the answers to these questions are in the affirmative, the case

ends; if the answers are in the negative, the case is set for

trial.

But one size does not fit all. As we previously have

noted, a motion for summary judgment has a different office in

administrative law cases. There, a summary judgment motion "is

simply a vehicle to tee up a case for judicial review" based on

the administrative record. Bos. Redev. Auth. v. Nat'l Park Serv.,

838 F.3d 42 , 47 (1st Cir. 2016). "That the parties brought the

issues forward on cross-motions for summary judgment is not

significant; substance must prevail over form . . . ." S. Shore

Hosp., Inc. v. Thompson, 308 F.3d 91 , 97-98 (1st Cir. 2002). The

controlling feature is that the parties have presented the case to

the court for an up-or-down decision on the administrative record,

see id., and judicial decisionmaking proceeds on that basis.

"ERISA benefit-denial cases typically are adjudicated on

the record compiled before the plan administrator." Denmark v.

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Liberty Life Assur. Co., 566 F.3d 1 , 10 (1st Cir. 2009). Such

cases bear a strong family resemblance to administrative law

cases.1 Thus — as in the administrative law context — a motion

for summary judgment is simply a mechanism for positioning an ERISA

benefit-denial case for a district court's decision on the record

of proceedings before the plan administrator. See Bard v. Bos.

Shipping Ass'n, 471 F.3d 229 , 235 (1st Cir. 2006) (explaining that

"[i]n the ERISA context, summary judgment is merely a vehicle for

deciding the case").

Stephanie tries to avoid the force of this analogy by

relying on our decision in Sánchez-Rodríguez v. AT & T Mobility

Puerto Rico, Inc. for the proposition that the intent of the

parties at the time they moved for summary judgment ought to govern

the standard of appellate review. See 673 F.3d 1 , 11 (1st Cir.

2012). Sánchez-Rodríguez, though, is a horse of an appreciably

different hue. That case did not involve anything resembling an

1 We limit our discussion to those ERISA benefit-denial cases that are decided solely on the record of proceedings before the plan administrator and without additional evidence being taken in the district court. We recognize, though, that the record in an ERISA benefit-denial case may be expanded for "good reason." Denmark, 566 F.3d at 10; see Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510 , 520 (1st Cir. 2005) (noting that outside evidence may be relevant when a beneficiary challenges the procedure used to deny benefits or claims a plan administrator acted unfairly because of personal bias); Leahy v. Raytheon Co., 315 F.3d 11 , 18 n.6 (1st Cir. 2002) (leaving open "possibility that, in special circumstances, a district court might take evidence in an ERISA case"). This is not such a case: here, neither party sought to expand the record.

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administrative record; it was, instead, a garden-variety

employment discrimination suit in which the parties had filed

cross-motions for summary judgment. See id. at 4. The district

court assumed the case to be a "case stated," that is, a case in

which "the parties waive trial and present the case to the court

on the undisputed facts in the pre-trial record." Id. at 10-11

(quoting TLT Constr. Corp. v. RI, Inc., 484 F.3d 130 , 135 n.6 (1st

Cir. 2007)). We found the "case stated" characterization

inappropos (even though the parties had agreed on some facts);

held that the district court should not have decided the summary

judgment motions on a case stated basis; and affirmed on other

grounds. See id. at 11, 16. Placed in its proper perspective,

Sánchez-Rodríguez is not instructive here.

Our rejection of Stephanie's two principal arguments

does not answer the question of what standard of review an

appellate court must apply in an ERISA benefit-denial case that is

presented for decision exclusively on the record of proceedings

before the plan administrator. BCBS suggests an answer to this

question. It posits that we should review the district court's

decision, to the extent that it rests upon factual findings and

inferences therefrom, only for clear error.2

2 De novo review differs significantly from clear error review. Compare Leahy v. Raytheon Co., 315 F.3d 11 , 16 (1st Cir. 2002) (stating that, under de novo review, "the court of appeals must decide [the relevant issues] for itself"), and United States

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Logically, the nature of the district court's review

ought to figure importantly in determining the appropriate

standard of appellate review. Where the ERISA plan grants the

plan administrator discretionary authority, the district court

must uphold that decision unless it is arbitrary, capricious, or

an abuse of discretion. See D & H Therapy Assocs., LLC v. Bos.

Mut. Life Ins. Co., 640 F.3d 27 , 34 (1st Cir. 2011). In that

event, it makes sense that appellate review should be de novo.

See Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack

Anesthesia Assocs. Long Term Disab. Plan, 705 F.3d 58 , 61 n.2 (1st

Cir. 2013) (reviewing de novo district court's determination that

plan administrator had abused its discretion and explaining that

"[w]here applicable, the abuse of discretion standard binds all

reviewing courts, whether district or appellate, in the evaluation

of a plan administrator's determinations").

On the other hand, where the district court reviews the

record of proceedings before the plan administrator de novo, the

court may weigh the facts, resolve conflicts in the evidence, and

draw reasonable inferences. See Orndorf v. Paul Revere Life Ins.

v. Howard (In re Extradition of Howard), 996 F.2d 1320 , 1327 (1st Cir. 1993) (explaining that de novo review affords no deference to the lower court), with Cumpiano v. Banco Santander P.R., 902 F.2d 148 , 152 (1st Cir. 1990) (describing clear error standard and stating that "we ought not to upset findings of fact or conclusions drawn therefrom unless, on the whole of the record, we form a strong, unyielding belief that a mistake has been made").

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Co., 404 F.3d 510 , 518 (1st Cir. 2005). In such cases, the argument

for a more deferential standard of review has at least a patina of

plausibility.3 Cf. Dantran, Inc. v. U.S. Dep't of Labor, 171 F.3d

58 , 71 (1st Cir. 1999) (explaining that "courts regularly review

factfinding done pursuant to a preponderance of the evidence

standard for clear error").

To complicate matters, our case law, specific to the

ERISA context, appears murky. In Tsoulas v. Liberty Life Assurance

Co., the claimant alleged that her long-term disability benefits

had been wrongfully terminated. See 454 F.3d 69 , 72 (1st Cir.

2006). The district court, exercising de novo review, entered

judgment for the fiduciary. See id. Noting that "the parties

submitted this case to the district court based on a stipulated

3 That district courts typically decide certain types of administrative cases "without live testimony, on the basis of the administrative record, does not detract from the wisdom of clear- error review." Roland M. v. Concord Sch. Comm., 910 F.2d 983 , 990 (1st Cir. 1990). In the last analysis, "findings of fact do not forfeit 'clearly erroneous' deference merely because they stem from a paper record." RCI Ne. Servs. Div. v. Bos. Edison Co., 822 F.2d 199 , 202 (1st Cir. 1987); see, e.g., Limone v. United States, 579 F.3d 79 , 94 (1st Cir. 2009) ("The application of clear-error review to findings drawn from a paper record has long been the practice in this circuit."); Brandt v. Repco Printers & Litho., Inc. (In re Healthco Int'l, Inc.), 132 F.3d 104 , 108 (1st Cir. 1997) ("[A] bankruptcy court's factual findings are entitled to the deference inherent in clear-error review even when they do not implicate live testimony, but, rather, evolve entirely from a paper record that is equally available to the reviewing court."); see also Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456 , 461 (7th Cir. 2001) (analogizing submission of case on administrative record to a bench trial and reviewing for clear error).

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record" of the proceedings before the plan administrator, we held

that the court's factual determinations were reviewable for clear

error. Id. at 75-76; accord DiGregorio v. Hartford Comp've Emp.

Ben. Serv. Co., 423 F.3d 6 , 13 (1st Cir. 2005) (reviewing factual

conclusion drawn by district court from record of proceedings for

clear error).

In Orndorf, though, we exercised plenary review over a

district court's de novo review of a plan administrator's benefit-

denial decision and questioned whether factfinding has any place

in the typical ERISA case. See 404 F.3d at 516-18. We suggested

that "[w]here review is properly confined to the administrative

record before the ERISA plan administrator, . . . there are no

disputed issues of fact for the court to resolve." Id. at 518.

While we regard this dive into the case law as

informative, we need not resolve the tension in our decisions.

Standards of review sometimes have decretory significance — but

sometimes they do not. In the last analysis, this case falls into

the latter camp: we have examined the record with care, and we are

satisfied that, regardless of whether we review the district

court's decision de novo or (more deferentially) for clear error,

the outcome would be the same. Accordingly, we leave the standard

of appellate review question open; assume, favorably to Stephanie,

that our review is de novo; and proceed on that assumption.

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III. THE MERITS

The district court concluded that BCBS was justified in

denying coverage for M.G.'s expenses at Gateway for two

independently sufficient reasons. First, the court held that the

Plan does not provide coverage for services rendered in an

educational setting. See Stephanie II, 2016 WL 3636978 , at *2.

Second, the court held that, in all events, the services in

question were not medically necessary within the purview of the

Plan. See id. at *3. An overarching principle applies to both

aspects of the district court's decision: an ERISA beneficiary who

claims the wrongful denial of benefits bears the burden of

demonstrating, by a preponderance of the evidence, that she was in

fact entitled to coverage. See Gent v. CUNA Mut. Ins. Soc'y, 611

F.3d 79 , 83 (1st Cir. 2010).

This case is fact-intensive, and it would serve no useful

purpose for us to mine the record extravagantly. For present

purposes, we think it sufficient to explain briefly why we conclude

— as did the district court — that Stephanie, although well-

represented by able counsel, failed to carry her burden on either

of the two identified grounds.

Our starting point is the Certificate itself, which

makes pellucid that no benefits are provided for "services that

are performed in educational . . . settings." It goes on to

describe such settings:

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[t]hese programs may have educational accreditation. The staff may include some licensed mental health providers who may provide some therapy. No benefits are provided for any services furnished along with one of these non-covered programs. For example, no benefits are provided for therapy and/or psychotherapy furnished along with one of these non-covered programs.

The district court concluded, accordingly, that Gateway

was an "educational setting," Stephanie II, 2016 WL 3636978 , at

*2, and Stephanie does not offer an alternative reading of the

Certificate that would square its exclusion of services rendered

in educational settings with the coverage she seeks. She also

does not contest that Gateway provided some educational services;

that regular course work is a part of the program; that Gateway

refers to its enrollees as "students"; and that the enrollees

attend scholastic classes and receive traditional letter grades

and grade-point averages. Nor does she dispute that Gateway refers

to its facility as a "campus" or that when an enrollee completes

the Gateway program, he is said to have "graduated." Given these

uncontested facts, it is nose-on-the-face plain that Gateway is an

"educational setting." Stephanie resists this conclusion, arguing

that the educational setting exclusion should not apply because

education was not the "substantive purpose" for M.G.'s enrollment.

The terms of the Certificate, though, do not admit of any such

distinction. Rather, those terms state, with conspicuous clarity,

that "[n]o benefits are provided for any services furnished along

with one of these non-covered [educational] programs."

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Stephanie has a fallback position. She contends that

BCBS did not properly notify her that Gateway's educational setting

constituted a reason for its denial of benefits. The underlying

premise on which this contention rests is sound: a plan

administrator, in terminating or denying benefits, may not rely on

a theory for its termination or denial that it did not communicate

to the insured prior to litigation. See Bard, 471 F.3d at 244;

Glista v. Unum Life Ins. Co., 378 F.3d 113 , 128-32 (1st Cir. 2004).

Here, however, the conclusion that Stephanie draws from this

premise is problematic. She concedes that, well before the

commencement of any litigation, BCBS notified M.G.'s father (the

holder of the Certificate and, thus, the subscriber) of the

educational setting issue in a telephone call.

The Certificate provides that, if a claim is denied,

BCBS "will send you and/or the health care provider" notice of the

reason for the denial. The pronoun "you" is defined as "any member

who has the right to the coverage provided by this health plan. A

member may be the subscriber or his or her enrolled eligible spouse

(or former spouse, if applicable) or any other enrolled eligible

dependent."4 To cinch matters, M.G.'s father was designated as an

addressee for correspondence regarding M.G.'s claims.

4 In all instances, emphasis in the Certificate's language is its own.

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Stephanie does not dispute that M.G.'s father was a

proper recipient for such notices. She nonetheless rejoins that

the educational setting message needed to be communicated in

writing. See 29 U.S.C. § 1133(1) (requiring plan administrators

to "provide adequate notice in writing to any participant or

beneficiary whose claim for benefits under the plan has been

denied, setting forth the specific reasons for such denial, written

in a manner calculated to be understood by the participant"); see

also 29 C.F.R. § 2560.503-1(g)(1) ("[T]he plan administrator shall

provide a claimant with written or electronic notification of any

adverse benefit determination."). On that basis, she asserts that

we should disregard the telephone call to M.G.'s father.

But there is a rub: Stephanie did not argue to the

district court that the notice she received of the educational

setting ground for denial was defective because it was not in

writing. She focused, instead, on whether BCBS had notified her

at all of the educational setting issue during the internal appeals

process. She cannot now switch horses mid-stream in search of a

swifter steed. See Teamsters, Chauffeurs, Warehousemen & Helpers

Union v. Superline Transp. Co., 953 F.2d 17 , 21 (1st Cir. 1992)

("If any principle is settled in this circuit, it is that, absent

the most extraordinary circumstances, legal theories not raised

squarely in the lower court cannot be broached for the first time

on appeal."). As a result, we hold, as did the court below, that

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the educational setting bar to coverage, adumbrated in the

Certificate, justified BCBS's denial of Stephanie's claim.5

Even though this holding is dispositive of Stephanie's

claim, we address succinctly, for the sake of completeness, the

district court's second ground for denying the claim: that M.G.'s

stay at Gateway was not shown to be medically necessary. The court

based this holding on a finding that M.G.'s treatment did not

satisfy the InterQual criteria for adolescent psychiatry, as

implemented by BCBS's internal policies. See Stephanie II, 2016

WL 3636978 , at *3.

The Certificate dictates that BCBS "decides which health

care services . . . are medically necessary and appropriate for

coverage." Of course, on de novo review, we must be satisfied the

plan administrator's decision is correct. See Richards v. Hewlett-

Packard Corp., 592 F.3d 232 , 239 (1st Cir. 2010). Indeed, even

under deferential review, the determination must be reasonable.

See Colby, 705 F.3d at 62.

5BCBS submits that, in all events, it provided notice of the educational setting bar in writing through M.G.'s "Claims Listing," which catalogues Explanation of Benefits letters (EOBs) sent to Stephanie. One such EOB (for an out-of-state psychiatric consultation) listed the educational setting explanation. Because we hold that the telephone call with M.G.'s father constituted sufficient notice in the circumstances of this case, we take no view as to whether the EOB, standing alone, would have constituted sufficient notice.

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To facilitate this decisionmaking, BCBS reviewers

reasonably consult the InterQual criteria, which are nationally

recognized, third-party guidelines. The criteria provide a

sensible structure for analyzing a patient's particular symptoms,

diagnoses, risks, and circumstances to determine what level of

care is medically necessary.

As relevant here, the InterQual criteria invite a three-

part analysis. First, the reviewer must analyze the patient's

clinical indications, that is, his current psychiatric diagnosis

and symptoms. If the clinical indications suggest a need for

further treatment, the reviewer must then consider the

individual's social risks. That consideration entails an

examination of the remaining two parts of the algorithm: risks and

level of care, respectively.

The district court did not make specific findings

regarding M.G.'s clinical indications, and the logical inference

is that the court deemed Stephanie's proof on this point

sufficient. Although BCBS claims that M.G.'s symptoms did not

satisfy the listed criteria because he was not a chronic or

persistent danger to himself or others within the week prior to

his admission at Gateway as required by the InterQual criteria,

the record belies this claim.

Under the InterQual criteria, an individual is a chronic

or persistent danger to himself or others if he exhibits any one

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of several enumerated behaviors. One such enumerated behavior is

unmanageable "[a]ngry outbursts / [a]ggression." Another is

"[s]exually inappropriate / aggressive / abusive" conduct, which

(according to the notes accompanying the InterQual criteria) may

include "noncontact acts" such as "sexual comments."

We need not tarry. On this issue, it suffices to say

that records from M.G.'s final week in the wilderness program

describe M.G.'s continued struggle with his emotions. He would

quickly become agitated with members of his cohort and curse at

them, using "excessive inappropriate language including insults

and perverted statements." M.G.'s years-long pattern of outbursts

and the prognosis formulated by his therapist at the wilderness

program offer every indication that M.G.'s aggressive and

inappropriate sexual comments will continue. Given this tableau,

we believe that Stephanie carried her burden of showing that M.G.

displayed clinical indications adequate to satisfy the InterQual

criteria.

Stephanie's proof does not fare as well on the remaining

parts of the tripartite analysis. Under the InterQual criteria,

Stephanie was required to show that M.G. had a record of

unsuccessful treatment within the year prior to his admission to

Gateway and that he was unable to be managed at a lower level of

care (that is, a level of care less intensive than the Gateway

program). The district court concluded that Stephanie had not

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satisfied either of these requirements. See Stephanie II, 2016 WL

3636978 , at *3. On de novo review, we reach the same conclusion.

To begin, the record leaves no doubt that M.G. did not

have a record of unsuccessful treatment within a year prior to his

admission at Gateway. Prior courses of treatments, such as the

wilderness program, undeniably improved M.G.'s symptoms. See id.

A few examples hammer home the point. M.G.'s discharge

report from the wilderness program confirmed that, after finishing

the program, he had a greater ability to express his emotions,

problem solve, and deal with frustration and disappointment. So,

too, the discharge summary disclosed that M.G. had "reduced his

inappropriate talk and impulsive behaviors." These are badges of

improvement, signifying that the wilderness program achieved at

least a modicum of success.

Arguing to the contrary, Stephanie relies on the

recommendation of a therapist at the wilderness program for ongoing

residential treatment of M.G. The notes accompanying the InterQual

criteria, though, define unsuccessful treatment as a "lack of

improvement of a patient's symptoms and behaviors in previous

treatment" or "inability to complete an adequate trial of treatment

provided by a licensed program or clinician." Under this standard,

the fact that M.G. required further treatment did not mean that

the previous treatment was unsuccessful; what matters is that M.G.

did not exhibit the requisite "lack of improvement" needed to

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render his prior treatment unsuccessful. Stephanie does not

explain how we can reconcile M.G.'s apparent improvement with the

InterQual criteria's definition of unsuccessful treatment.

Stephanie offers a second reason why M.G. should be

regarded as having a history of unsuccessful treatment within the

year prior to commencing the Gateway program. She notes that M.G.

began an outpatient regime in August of 2010 and that he was

arrested the following month for hitting her. While this incident

does seem to present an example of failed treatment in the relevant

time frame, M.G.'s subsequent progress in the wilderness program

strongly suggests that he was able to be managed at a lower level

of care, the second requirement under the InterQual definition of

"[t]reatment." Given M.G.'s improving symptomatology immediately

prior to his Gateway admission, we are not persuaded that Stephanie

has carried her burden of demonstrating that M.G. had the required

record of unsuccessful treatment.

Similarly, we agree with the district court, see id.,

that Stephanie's proof fell short in yet another respect: M.G. had

neither been discharged nor transferred from psychiatric

hospitalization within twenty-four hours prior to his admission to

Gateway. The twenty-four-hour discharge or transfer requirement

is listed under the "Psychiatric Subacute Care" treatment setting.

Stephanie argues that it was not necessary for M.G. to satisfy

this requirement. In her view, the district court should have

- 21 -

applied the less onerous standards specified for a "Psychiatric

Residential Treatment Center" setting. We do not agree.

Stephanie's argument hits a snag because the Certificate

states that BCBS "decides which health care services . . . are

medically necessary and appropriate for coverage." To perform

this analysis, BCBS looks to the InterQual criteria. Those

criteria, in turn, state that "[i]n making a level of care

determination, . . . contractual agreements may be considered based

on organizational policy." The descriptions for the "Psychiatric

Subacute Care" and "Psychiatric Residential Treatment Center"

settings also state that they are "subject to organizational

policy."

The record is uncontradicted that BCBS had in place an

organizational policy of exclusively using the psychiatric

subacute care level of care criteria for adolescent acute

residential treatment. Reading the InterQual criteria as a whole,

this policy of using the psychiatric subacute care level of care

criteria was reasonable and trumps any references to other care

settings.

In an effort to undermine this conclusion, Stephanie

suggests that the term "organizational policy," as used in the

InterQual criteria, refers to the organizational policies of

service providers, not to any organizational policy of BCBS. This

suggestion contains more cry than wool. Although the term

- 22 -

"organizational policy" is undefined, one use of it is in the

directions for InterQual's adolescent psychiatry criteria. These

instructions explain that the level of care determination itself

may be informed by "organizational policy." The most logical

reading of the instructions is that the term refers to the policies

of the party or organization charged with making the level of care

determination (here, BCBS). Logically, then, the term

"organizational policy" has the same meaning three pages later

when the InterQual criteria are describing various treatment

settings. Cf. Gustafson v. Alloyd Co., 513 U.S. 561 , 568 (1995)

(explaining that "our duty to construe statutes, not isolated

provisions," dictates that a "term should be construed, if

possible, to give it a consistent meaning throughout" a statute);

Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173 , 179 (1st

Cir. 1995) ("Accepted canons of construction forbid the

balkanization of contracts for interpretive purposes."). We

conclude, therefore, that the term "organizational policy," as

used in the InterQual criteria, refers in this context to BCBS's

organizational policy.

We add, moreover, that the record reflects no basis for

finding BCBS's organizational policy unreasonable. The

Certificate itself supports BCBS on this point. It provides

coverage for inpatient, outpatient, and intermediate mental health

care services for adolescents. Intermediate services — services

- 23 -

somewhere between traditional inpatient and outpatient care —

include "acute residential treatment," "partial hospital

programs," and "intensive outpatient programs."

BCBS posits that the InterQual criteria's "Psychiatric

Subacute Care" level of care corresponds with the "acute

residential treatment" referenced in the Certificate.6 Given the

residential nature of Gateway and that it is not a "partial

hospital program" or an "outpatient" program, we agree that BCBS's

decision to follow its internal policy was reasonable. And because

the policy controls in this instance, BCBS acted appropriately in

analyzing Gateway as a psychiatric subacute care treatment

setting. Consequently, Stephanie had the burden of showing that

M.G. had either been discharged or transferred from psychiatric

hospitalization within twenty-four hours prior to his Gateway

admission. She offered no evidence to satisfy this burden. Hence,

we conclude — as did the district court, see Stephanie II, 2016 WL

3636978 , at *3 — that Stephanie failed to prove that Gateway's

services were medically necessary for M.G.'s care.

6 The parties tussle over the meaning of "acute" versus "subacute." BCBS asserts that the words are used interchangeably in the health insurance industry. Stephanie insists that "subacute," by definition, means less than "acute." But assuming, favorably to Stephanie, that "subacute" indicates a less intensive level of care in this instance, the BCBS's organizational policy of using the "Psychiatric Subacute Care" criteria would result in it employing a less stringent standard than required by the Plan, which covers "acute residential treatment."

- 24 -

To sum up, an ERISA plan is a form of contract. See

Firestone, 489 U.S. at 112-13. Thus, contract-law principles

inform the construction of an ERISA plan, and the plain language

of the plan provisions should normally be given effect. See

Filiatrault v. Comverse Tech., Inc., 275 F.3d 131 , 135 (1st Cir.

2001). Seen in this light, the dispositive issue here is not

whether M.G.'s course of treatment at Gateway was beneficial to

him but, rather, whether that course of treatment was covered under

the Plan. Applying the plain language of the Plan, we hold that

the clear weight of the evidence dictates a finding that the

disputed charges were not medically necessary (as defined by the

Plan) and, thus, were not covered.

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 25 -

United States Court of Appeals For the First Circuit

No. 16-1997

STEPHANIE C., Individually and as Guardian of M.G.,

Plaintiff, Appellant,

v.

BLUE CROSS BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC.,

Defendant, Appellee.

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

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

Before

Barron, Circuit Judge, Souter, Associate Justice, and Selya, Circuit Judge.

Brian S. King, with whom Brian S. King, PC and Jonathan M. Feigenbaum were on brief, for appellant. Joseph D. Halpern, with whom Law Office of Joseph Halpern and Donald J. Savery were on brief, for appellee.

March 24, 2017

 Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

SELYA, Circuit Judge. In this case, brought pursuant to

the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§ 1132(a)(1)(B), plaintiff-appellant Stephanie C. (Stephanie)

continues to seek reimbursement for certain expenses connected

with the treatment of her teenage son, M.G. The plan

administrator, defendant-appellee Blue Cross Blue Shield of

Massachusetts HMO Blue, Inc. (BCBS), denied the portions of her

claim that are now in dispute. The district court, reviewing the

denial de novo, upheld BCBS's action. Stephanie appeals. After

careful consideration, we affirm.

I. BACKGROUND

This dispute is no stranger to our court: it comes before

us for a second time. See Stephanie C. v. Blue Cross Blue Shield

of Mass. HMO Blue, Inc. (Stephanie I), 813 F.3d 420 (1st Cir.

2016). Because there is no need to repastinate ground already

well-plowed, we begin by reproducing our earlier summary of how

the case arose.

Stephanie's son, M.G., is a derivative beneficiary of an ERISA-regulated group health insurance plan (the Plan) furnished by his father's employer, Harmonix Music Systems, Inc. (Harmonix). The Plan is denominated as a "Preferred Blue PPO Preferred Provider Plan," the terms of which are set out in a subscriber certificate (the Certificate). In pertinent part, the Certificate makes clear that coverage under the Plan remains subject to a determination of medical necessity made by BCBS. It specifies that the Plan covers treatment for psychiatric illnesses, including biologically based conditions (e.g., autism) and, for children until age nineteen, for non-biologically based conditions (e.g., behavioral

- 2 -

problems). Such benefits do not accrue for residential, custodial, or medically unnecessary services, such as those performed in "educational, vocational, or recreational settings." The Certificate also stipulates that only the least intensive type of setting required for treatment of a condition will receive approval. Any non-emergency inpatient course of treatment needs approval before the patient is admitted to the facility. . . . . M.G. experienced a number of mental health issues beginning in early childhood. . . . M.G.'s condition intensified in severity in the summer of 2010 (the summer between his freshman and sophomore years in high school). At that time, he became physically aggressive toward his parents and attended weekly mental health therapy sessions. Although enrolled in an intensive outpatient educational facility, he continued to exhibit aggressive behavior that led to multiple arrests. His problems escalated because he steadfastly refused to take medications despite a court order requiring him to do so. Concerned about the apparent inadequacy of his care, Stephanie enrolled M.G. (at her own expense and without prior approval) in Vantage Point by Aspiro (Aspiro), a wilderness therapy program based in Utah, which specializes in neurodevelopmental disorders. M.G. remained at Aspiro from October of 2010 to January of 2011. His psychological evaluators there diagnosed him as having Asperger's Syndrome, anxiety disorder, and attention deficit and hyperactivity disorder. Noticing some improvement, they recommended that he continue therapy in a longer-term setting. On the advice of a consultant and without prior approval, Stephanie proceeded to enroll M.G. in Gateway Academy (Gateway), a private school treatment center in Utah that BCBS insists is "out of network" (that is, not in a contractual relationship with BCBS). While at Gateway, M.G.'s aggressive and emotionally erratic behavior continued; among other things, he engaged in inappropriate sexual contact and committed a variety of petty criminal offenses. In April of 2011, Harmonix submitted claims to BCBS for three sets of psychiatric evaluations and consultation services (performed during the period from January 27, 2011 to February 23, 2011) in connection with M.G.'s admission to Gateway. In late June, BCBS informed Harmonix that Gateway was a non-covered

- 3 -

provider but that it would cover the three sets of evaluations "as a one-time exception." Gateway itself submitted claims in September of 2011 and March of 2012 seeking reimbursement for principally residential services rendered to M.G. dating back to January of 2011. In an informal process, BCBS denied these room and board claims because the services were not medically necessary and the submitted documentation did not support the need for an inpatient admission. In an explanatory letter dated May 25, 2012, BCBS advised M.G.'s father that its denial of benefits was based largely upon an evaluation conducted by Dr. Elyce Kearns, a psychiatrist-reviewer, who relied upon "InterQual," a nationally recognized set of criteria used to assess the level of care for mental health patients. Given Dr. Kearns' evaluation, BCBS concluded that M.G.'s "clinical condition does not meet the medical necessity criteria required for an acute residential psychiatric stay." About a year later, Stephanie requested and received a sheaf of pertinent records from BCBS. She then contested the denial of coverage through BCBS's internal review process. In support of her appeal, Stephanie furnished documentation from M.G.'s psychotherapists, evaluators, and educators in addition to police reports and juvenile court records. Collectively, these materials described M.G.'s difficulties involving physical and verbal aggression, emotional volatility, lack of impulse control, and thinking errors. This pattern of conduct, Stephanie maintained, posed a danger to M.G. and to others. A second psychiatrist-reviewer, Dr. Kerim Munir, scrutinized the administrative record and recommended that BCBS uphold the denial of benefits. He cited the absence of any medical necessity for the placement and reiterated the conclusions of the first psychiatrist- reviewer. On June 19, 2013, BCBS denied the internal appeal in a letter to Stephanie.

Id. at 423-25 (footnote omitted).

Having exhausted her administrative remedies, Stephanie

sued BCBS in an effort to recover the denied benefits. See 29

U.S.C. § 1132(a)(1)(B). The parties cross-moved for summary

- 4 -

judgment, and the district court entered judgment in favor of BCBS.

See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc.,

No. 13-13250, 2015 WL 1443012 , at *12 (D. Mass. Mar. 29, 2015).

Stephanie appealed.

We did not reach the merits of Stephanie's appeal but,

rather, focused on a threshold issue, holding that the district

court erred in reviewing BCBS's denial of benefits for abuse of

discretion. See Stephanie I, 813 F.3d at 428-29. We explained

that the court should have reviewed the denial de novo because the

Certificate did not unambiguously confer discretionary

decisionmaking authority on the plan administrator (BCBS). See

id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 ,

115 (1989) (holding that a denial of ERISA benefits "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")). Consequently, we vacated the district court's decision

in relevant part and remanded for reappraisal of the denial of

benefits under the appropriate standard of review. See id. at

429.

On remand, the district court — this time exercising de

novo review — again entered judgment in favor of BCBS. See

Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc.

- 5 -

(Stephanie II), No. 13-13250, 2016 WL 3636978 , at *4 (D. Mass.

June 30, 2016). This timely appeal followed.

II. STANDARD OF APPELLATE REVIEW

This appeal, like Stephanie's earlier appeal, presents

a standard of review quandary — but one that operates on a

different level. The first time around, we were asked to determine

what standard of review the district court should employ in its

review of the record of proceedings before the plan administrator.

See Stephanie I, 813 F.3d at 428-29. On remand, the district court

performed that task and, as we had instructed, exercised de novo

review. See Stephanie II, 2016 WL 3636978 , at *4. The question

now becomes what standard we should apply in reviewing the district

court's decision.

Stephanie posits that we should undertake de novo review

at the appellate level. Her argument leans heavily on the fact

that the parties presented this case to the district court on

cross-motions for summary judgment. This argument has a certain

superficial appeal: after all, appellate review of a district

court's grant or denial of summary judgment is normally de novo,

see, e.g., Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20 , 25

(1st Cir. 2015); Houlton Citizens' Coal. v. Town of Houlton, 175

F.3d 178 , 184 (1st Cir. 1999), and that standard is not altered by

the incidence of cross-motions for summary judgment, see, e.g.,

Blackie v. Maine, 75 F.3d 716 , 721 (1st Cir. 1996).

- 6 -

The rationale behind this practice is straightforward.

In the ordinary case, a motion for summary judgment asks the

district court to decide questions of law: does the summary

judgment record, viewed in the light most hospitable to the

nonmovant, reveal the absence of any genuine issue of material

fact and confirm that the movant is entitled to judgment as a

matter of law? See Fed. R. Civ. P. 56(a); Murray, 789 F.3d at 25.

If the answers to these questions are in the affirmative, the case

ends; if the answers are in the negative, the case is set for

trial.

But one size does not fit all. As we previously have

noted, a motion for summary judgment has a different office in

administrative law cases. There, a summary judgment motion "is

simply a vehicle to tee up a case for judicial review" based on

the administrative record. Bos. Redev. Auth. v. Nat'l Park Serv.,

838 F.3d 42 , 47 (1st Cir. 2016). "That the parties brought the

issues forward on cross-motions for summary judgment is not

significant; substance must prevail over form . . . ." S. Shore

Hosp., Inc. v. Thompson, 308 F.3d 91 , 97-98 (1st Cir. 2002). The

controlling feature is that the parties have presented the case to

the court for an up-or-down decision on the administrative record,

see id., and judicial decisionmaking proceeds on that basis.

"ERISA benefit-denial cases typically are adjudicated on

the record compiled before the plan administrator." Denmark v.

- 7 -

Liberty Life Assur. Co., 566 F.3d 1 , 10 (1st Cir. 2009). Such

cases bear a strong family resemblance to administrative law

cases.1 Thus — as in the administrative law context — a motion

for summary judgment is simply a mechanism for positioning an ERISA

benefit-denial case for a district court's decision on the record

of proceedings before the plan administrator. See Bard v. Bos.

Shipping Ass'n, 471 F.3d 229 , 235 (1st Cir. 2006) (explaining that

"[i]n the ERISA context, summary judgment is merely a vehicle for

deciding the case").

Stephanie tries to avoid the force of this analogy by

relying on our decision in Sánchez-Rodríguez v. AT & T Mobility

Puerto Rico, Inc. for the proposition that the intent of the

parties at the time they moved for summary judgment ought to govern

the standard of appellate review. See 673 F.3d 1 , 11 (1st Cir.

2012). Sánchez-Rodríguez, though, is a horse of an appreciably

different hue. That case did not involve anything resembling an

1 We limit our discussion to those ERISA benefit-denial cases that are decided solely on the record of proceedings before the plan administrator and without additional evidence being taken in the district court. We recognize, though, that the record in an ERISA benefit-denial case may be expanded for "good reason." Denmark, 566 F.3d at 10; see Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510 , 520 (1st Cir. 2005) (noting that outside evidence may be relevant when a beneficiary challenges the procedure used to deny benefits or claims a plan administrator acted unfairly because of personal bias); Leahy v. Raytheon Co., 315 F.3d 11 , 18 n.6 (1st Cir. 2002) (leaving open "possibility that, in special circumstances, a district court might take evidence in an ERISA case"). This is not such a case: here, neither party sought to expand the record.

- 8 -

administrative record; it was, instead, a garden-variety

employment discrimination suit in which the parties had filed

cross-motions for summary judgment. See id. at 4. The district

court assumed the case to be a "case stated," that is, a case in

which "the parties waive trial and present the case to the court

on the undisputed facts in the pre-trial record." Id. at 10-11

(quoting TLT Constr. Corp. v. RI, Inc., 484 F.3d 130 , 135 n.6 (1st

Cir. 2007)). We found the "case stated" characterization

inappropos (even though the parties had agreed on some facts);

held that the district court should not have decided the summary

judgment motions on a case stated basis; and affirmed on other

grounds. See id. at 11, 16. Placed in its proper perspective,

Sánchez-Rodríguez is not instructive here.

Our rejection of Stephanie's two principal arguments

does not answer the question of what standard of review an

appellate court must apply in an ERISA benefit-denial case that is

presented for decision exclusively on the record of proceedings

before the plan administrator. BCBS suggests an answer to this

question. It posits that we should review the district court's

decision, to the extent that it rests upon factual findings and

inferences therefrom, only for clear error.2

2 De novo review differs significantly from clear error review. Compare Leahy v. Raytheon Co., 315 F.3d 11 , 16 (1st Cir. 2002) (stating that, under de novo review, "the court of appeals must decide [the relevant issues] for itself"), and United States

- 9 -

Logically, the nature of the district court's review

ought to figure importantly in determining the appropriate

standard of appellate review. Where the ERISA plan grants the

plan administrator discretionary authority, the district court

must uphold that decision unless it is arbitrary, capricious, or

an abuse of discretion. See D & H Therapy Assocs., LLC v. Bos.

Mut. Life Ins. Co., 640 F.3d 27 , 34 (1st Cir. 2011). In that

event, it makes sense that appellate review should be de novo.

See Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack

Anesthesia Assocs. Long Term Disab. Plan, 705 F.3d 58 , 61 n.2 (1st

Cir. 2013) (reviewing de novo district court's determination that

plan administrator had abused its discretion and explaining that

"[w]here applicable, the abuse of discretion standard binds all

reviewing courts, whether district or appellate, in the evaluation

of a plan administrator's determinations").

On the other hand, where the district court reviews the

record of proceedings before the plan administrator de novo, the

court may weigh the facts, resolve conflicts in the evidence, and

draw reasonable inferences. See Orndorf v. Paul Revere Life Ins.

v. Howard (In re Extradition of Howard), 996 F.2d 1320 , 1327 (1st Cir. 1993) (explaining that de novo review affords no deference to the lower court), with Cumpiano v. Banco Santander P.R., 902 F.2d 148 , 152 (1st Cir. 1990) (describing clear error standard and stating that "we ought not to upset findings of fact or conclusions drawn therefrom unless, on the whole of the record, we form a strong, unyielding belief that a mistake has been made").

- 10 -

Co., 404 F.3d 510 , 518 (1st Cir. 2005). In such cases, the argument

for a more deferential standard of review has at least a patina of

plausibility.3 Cf. Dantran, Inc. v. U.S. Dep't of Labor, 171 F.3d

58 , 71 (1st Cir. 1999) (explaining that "courts regularly review

factfinding done pursuant to a preponderance of the evidence

standard for clear error").

To complicate matters, our case law, specific to the

ERISA context, appears murky. In Tsoulas v. Liberty Life Assurance

Co., the claimant alleged that her long-term disability benefits

had been wrongfully terminated. See 454 F.3d 69 , 72 (1st Cir.

2006). The district court, exercising de novo review, entered

judgment for the fiduciary. See id. Noting that "the parties

submitted this case to the district court based on a stipulated

3 That district courts typically decide certain types of administrative cases "without live testimony, on the basis of the administrative record, does not detract from the wisdom of clear- error review." Roland M. v. Concord Sch. Comm., 910 F.2d 983 , 990 (1st Cir. 1990). In the last analysis, "findings of fact do not forfeit 'clearly erroneous' deference merely because they stem from a paper record." RCI Ne. Servs. Div. v. Bos. Edison Co., 822 F.2d 199 , 202 (1st Cir. 1987); see, e.g., Limone v. United States, 579 F.3d 79 , 94 (1st Cir. 2009) ("The application of clear-error review to findings drawn from a paper record has long been the practice in this circuit."); Brandt v. Repco Printers & Litho., Inc. (In re Healthco Int'l, Inc.), 132 F.3d 104 , 108 (1st Cir. 1997) ("[A] bankruptcy court's factual findings are entitled to the deference inherent in clear-error review even when they do not implicate live testimony, but, rather, evolve entirely from a paper record that is equally available to the reviewing court."); see also Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456 , 461 (7th Cir. 2001) (analogizing submission of case on administrative record to a bench trial and reviewing for clear error).

- 11 -

record" of the proceedings before the plan administrator, we held

that the court's factual determinations were reviewable for clear

error. Id. at 75-76; accord DiGregorio v. Hartford Comp've Emp.

Ben. Serv. Co., 423 F.3d 6 , 13 (1st Cir. 2005) (reviewing factual

conclusion drawn by district court from record of proceedings for

clear error).

In Orndorf, though, we exercised plenary review over a

district court's de novo review of a plan administrator's benefit-

denial decision and questioned whether factfinding has any place

in the typical ERISA case. See 404 F.3d at 516-18. We suggested

that "[w]here review is properly confined to the administrative

record before the ERISA plan administrator, . . . there are no

disputed issues of fact for the court to resolve." Id. at 518.

While we regard this dive into the case law as

informative, we need not resolve the tension in our decisions.

Standards of review sometimes have decretory significance — but

sometimes they do not. In the last analysis, this case falls into

the latter camp: we have examined the record with care, and we are

satisfied that, regardless of whether we review the district

court's decision de novo or (more deferentially) for clear error,

the outcome would be the same. Accordingly, we leave the standard

of appellate review question open; assume, favorably to Stephanie,

that our review is de novo; and proceed on that assumption.

- 12 -

III. THE MERITS

The district court concluded that BCBS was justified in

denying coverage for M.G.'s expenses at Gateway for two

independently sufficient reasons. First, the court held that the

Plan does not provide coverage for services rendered in an

educational setting. See Stephanie II, 2016 WL 3636978 , at *2.

Second, the court held that, in all events, the services in

question were not medically necessary within the purview of the

Plan. See id. at *3. An overarching principle applies to both

aspects of the district court's decision: an ERISA beneficiary who

claims the wrongful denial of benefits bears the burden of

demonstrating, by a preponderance of the evidence, that she was in

fact entitled to coverage. See Gent v. CUNA Mut. Ins. Soc'y, 611

F.3d 79 , 83 (1st Cir. 2010).

This case is fact-intensive, and it would serve no useful

purpose for us to mine the record extravagantly. For present

purposes, we think it sufficient to explain briefly why we conclude

— as did the district court — that Stephanie, although well-

represented by able counsel, failed to carry her burden on either

of the two identified grounds.

Our starting point is the Certificate itself, which

makes pellucid that no benefits are provided for "services that

are performed in educational . . . settings." It goes on to

describe such settings:

- 13 -

[t]hese programs may have educational accreditation. The staff may include some licensed mental health providers who may provide some therapy. No benefits are provided for any services furnished along with one of these non-covered programs. For example, no benefits are provided for therapy and/or psychotherapy furnished along with one of these non-covered programs.

The district court concluded, accordingly, that Gateway

was an "educational setting," Stephanie II, 2016 WL 3636978 , at

*2, and Stephanie does not offer an alternative reading of the

Certificate that would square its exclusion of services rendered

in educational settings with the coverage she seeks. She also

does not contest that Gateway provided some educational services;

that regular course work is a part of the program; that Gateway

refers to its enrollees as "students"; and that the enrollees

attend scholastic classes and receive traditional letter grades

and grade-point averages. Nor does she dispute that Gateway refers

to its facility as a "campus" or that when an enrollee completes

the Gateway program, he is said to have "graduated." Given these

uncontested facts, it is nose-on-the-face plain that Gateway is an

"educational setting." Stephanie resists this conclusion, arguing

that the educational setting exclusion should not apply because

education was not the "substantive purpose" for M.G.'s enrollment.

The terms of the Certificate, though, do not admit of any such

distinction. Rather, those terms state, with conspicuous clarity,

that "[n]o benefits are provided for any services furnished along

with one of these non-covered [educational] programs."

- 14 -

Stephanie has a fallback position. She contends that

BCBS did not properly notify her that Gateway's educational setting

constituted a reason for its denial of benefits. The underlying

premise on which this contention rests is sound: a plan

administrator, in terminating or denying benefits, may not rely on

a theory for its termination or denial that it did not communicate

to the insured prior to litigation. See Bard, 471 F.3d at 244;

Glista v. Unum Life Ins. Co., 378 F.3d 113 , 128-32 (1st Cir. 2004).

Here, however, the conclusion that Stephanie draws from this

premise is problematic. She concedes that, well before the

commencement of any litigation, BCBS notified M.G.'s father (the

holder of the Certificate and, thus, the subscriber) of the

educational setting issue in a telephone call.

The Certificate provides that, if a claim is denied,

BCBS "will send you and/or the health care provider" notice of the

reason for the denial. The pronoun "you" is defined as "any member

who has the right to the coverage provided by this health plan. A

member may be the subscriber or his or her enrolled eligible spouse

(or former spouse, if applicable) or any other enrolled eligible

dependent."4 To cinch matters, M.G.'s father was designated as an

addressee for correspondence regarding M.G.'s claims.

4 In all instances, emphasis in the Certificate's language is its own.

- 15 -

Stephanie does not dispute that M.G.'s father was a

proper recipient for such notices. She nonetheless rejoins that

the educational setting message needed to be communicated in

writing. See 29 U.S.C. § 1133(1) (requiring plan administrators

to "provide adequate notice in writing to any participant or

beneficiary whose claim for benefits under the plan has been

denied, setting forth the specific reasons for such denial, written

in a manner calculated to be understood by the participant"); see

also 29 C.F.R. § 2560.503-1(g)(1) ("[T]he plan administrator shall

provide a claimant with written or electronic notification of any

adverse benefit determination."). On that basis, she asserts that

we should disregard the telephone call to M.G.'s father.

But there is a rub: Stephanie did not argue to the

district court that the notice she received of the educational

setting ground for denial was defective because it was not in

writing. She focused, instead, on whether BCBS had notified her

at all of the educational setting issue during the internal appeals

process. She cannot now switch horses mid-stream in search of a

swifter steed. See Teamsters, Chauffeurs, Warehousemen & Helpers

Union v. Superline Transp. Co., 953 F.2d 17 , 21 (1st Cir. 1992)

("If any principle is settled in this circuit, it is that, absent

the most extraordinary circumstances, legal theories not raised

squarely in the lower court cannot be broached for the first time

on appeal."). As a result, we hold, as did the court below, that

- 16 -

the educational setting bar to coverage, adumbrated in the

Certificate, justified BCBS's denial of Stephanie's claim.5

Even though this holding is dispositive of Stephanie's

claim, we address succinctly, for the sake of completeness, the

district court's second ground for denying the claim: that M.G.'s

stay at Gateway was not shown to be medically necessary. The court

based this holding on a finding that M.G.'s treatment did not

satisfy the InterQual criteria for adolescent psychiatry, as

implemented by BCBS's internal policies. See Stephanie II, 2016

WL 3636978 , at *3.

The Certificate dictates that BCBS "decides which health

care services . . . are medically necessary and appropriate for

coverage." Of course, on de novo review, we must be satisfied the

plan administrator's decision is correct. See Richards v. Hewlett-

Packard Corp., 592 F.3d 232 , 239 (1st Cir. 2010). Indeed, even

under deferential review, the determination must be reasonable.

See Colby, 705 F.3d at 62.

5BCBS submits that, in all events, it provided notice of the educational setting bar in writing through M.G.'s "Claims Listing," which catalogues Explanation of Benefits letters (EOBs) sent to Stephanie. One such EOB (for an out-of-state psychiatric consultation) listed the educational setting explanation. Because we hold that the telephone call with M.G.'s father constituted sufficient notice in the circumstances of this case, we take no view as to whether the EOB, standing alone, would have constituted sufficient notice.

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To facilitate this decisionmaking, BCBS reviewers

reasonably consult the InterQual criteria, which are nationally

recognized, third-party guidelines. The criteria provide a

sensible structure for analyzing a patient's particular symptoms,

diagnoses, risks, and circumstances to determine what level of

care is medically necessary.

As relevant here, the InterQual criteria invite a three-

part analysis. First, the reviewer must analyze the patient's

clinical indications, that is, his current psychiatric diagnosis

and symptoms. If the clinical indications suggest a need for

further treatment, the reviewer must then consider the

individual's social risks. That consideration entails an

examination of the remaining two parts of the algorithm: risks and

level of care, respectively.

The district court did not make specific findings

regarding M.G.'s clinical indications, and the logical inference

is that the court deemed Stephanie's proof on this point

sufficient. Although BCBS claims that M.G.'s symptoms did not

satisfy the listed criteria because he was not a chronic or

persistent danger to himself or others within the week prior to

his admission at Gateway as required by the InterQual criteria,

the record belies this claim.

Under the InterQual criteria, an individual is a chronic

or persistent danger to himself or others if he exhibits any one

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of several enumerated behaviors. One such enumerated behavior is

unmanageable "[a]ngry outbursts / [a]ggression." Another is

"[s]exually inappropriate / aggressive / abusive" conduct, which

(according to the notes accompanying the InterQual criteria) may

include "noncontact acts" such as "sexual comments."

We need not tarry. On this issue, it suffices to say

that records from M.G.'s final week in the wilderness program

describe M.G.'s continued struggle with his emotions. He would

quickly become agitated with members of his cohort and curse at

them, using "excessive inappropriate language including insults

and perverted statements." M.G.'s years-long pattern of outbursts

and the prognosis formulated by his therapist at the wilderness

program offer every indication that M.G.'s aggressive and

inappropriate sexual comments will continue. Given this tableau,

we believe that Stephanie carried her burden of showing that M.G.

displayed clinical indications adequate to satisfy the InterQual

criteria.

Stephanie's proof does not fare as well on the remaining

parts of the tripartite analysis. Under the InterQual criteria,

Stephanie was required to show that M.G. had a record of

unsuccessful treatment within the year prior to his admission to

Gateway and that he was unable to be managed at a lower level of

care (that is, a level of care less intensive than the Gateway

program). The district court concluded that Stephanie had not

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satisfied either of these requirements. See Stephanie II, 2016 WL

3636978 , at *3. On de novo review, we reach the same conclusion.

To begin, the record leaves no doubt that M.G. did not

have a record of unsuccessful treatment within a year prior to his

admission at Gateway. Prior courses of treatments, such as the

wilderness program, undeniably improved M.G.'s symptoms. See id.

A few examples hammer home the point. M.G.'s discharge

report from the wilderness program confirmed that, after finishing

the program, he had a greater ability to express his emotions,

problem solve, and deal with frustration and disappointment. So,

too, the discharge summary disclosed that M.G. had "reduced his

inappropriate talk and impulsive behaviors." These are badges of

improvement, signifying that the wilderness program achieved at

least a modicum of success.

Arguing to the contrary, Stephanie relies on the

recommendation of a therapist at the wilderness program for ongoing

residential treatment of M.G. The notes accompanying the InterQual

criteria, though, define unsuccessful treatment as a "lack of

improvement of a patient's symptoms and behaviors in previous

treatment" or "inability to complete an adequate trial of treatment

provided by a licensed program or clinician." Under this standard,

the fact that M.G. required further treatment did not mean that

the previous treatment was unsuccessful; what matters is that M.G.

did not exhibit the requisite "lack of improvement" needed to

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render his prior treatment unsuccessful. Stephanie does not

explain how we can reconcile M.G.'s apparent improvement with the

InterQual criteria's definition of unsuccessful treatment.

Stephanie offers a second reason why M.G. should be

regarded as having a history of unsuccessful treatment within the

year prior to commencing the Gateway program. She notes that M.G.

began an outpatient regime in August of 2010 and that he was

arrested the following month for hitting her. While this incident

does seem to present an example of failed treatment in the relevant

time frame, M.G.'s subsequent progress in the wilderness program

strongly suggests that he was able to be managed at a lower level

of care, the second requirement under the InterQual definition of

"[t]reatment." Given M.G.'s improving symptomatology immediately

prior to his Gateway admission, we are not persuaded that Stephanie

has carried her burden of demonstrating that M.G. had the required

record of unsuccessful treatment.

Similarly, we agree with the district court, see id.,

that Stephanie's proof fell short in yet another respect: M.G. had

neither been discharged nor transferred from psychiatric

hospitalization within twenty-four hours prior to his admission to

Gateway. The twenty-four-hour discharge or transfer requirement

is listed under the "Psychiatric Subacute Care" treatment setting.

Stephanie argues that it was not necessary for M.G. to satisfy

this requirement. In her view, the district court should have

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applied the less onerous standards specified for a "Psychiatric

Residential Treatment Center" setting. We do not agree.

Stephanie's argument hits a snag because the Certificate

states that BCBS "decides which health care services . . . are

medically necessary and appropriate for coverage." To perform

this analysis, BCBS looks to the InterQual criteria. Those

criteria, in turn, state that "[i]n making a level of care

determination, . . . contractual agreements may be considered based

on organizational policy." The descriptions for the "Psychiatric

Subacute Care" and "Psychiatric Residential Treatment Center"

settings also state that they are "subject to organizational

policy."

The record is uncontradicted that BCBS had in place an

organizational policy of exclusively using the psychiatric

subacute care level of care criteria for adolescent acute

residential treatment. Reading the InterQual criteria as a whole,

this policy of using the psychiatric subacute care level of care

criteria was reasonable and trumps any references to other care

settings.

In an effort to undermine this conclusion, Stephanie

suggests that the term "organizational policy," as used in the

InterQual criteria, refers to the organizational policies of

service providers, not to any organizational policy of BCBS. This

suggestion contains more cry than wool. Although the term

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"organizational policy" is undefined, one use of it is in the

directions for InterQual's adolescent psychiatry criteria. These

instructions explain that the level of care determination itself

may be informed by "organizational policy." The most logical

reading of the instructions is that the term refers to the policies

of the party or organization charged with making the level of care

determination (here, BCBS). Logically, then, the term

"organizational policy" has the same meaning three pages later

when the InterQual criteria are describing various treatment

settings. Cf. Gustafson v. Alloyd Co., 513 U.S. 561 , 568 (1995)

(explaining that "our duty to construe statutes, not isolated

provisions," dictates that a "term should be construed, if

possible, to give it a consistent meaning throughout" a statute);

Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173 , 179 (1st

Cir. 1995) ("Accepted canons of construction forbid the

balkanization of contracts for interpretive purposes."). We

conclude, therefore, that the term "organizational policy," as

used in the InterQual criteria, refers in this context to BCBS's

organizational policy.

We add, moreover, that the record reflects no basis for

finding BCBS's organizational policy unreasonable. The

Certificate itself supports BCBS on this point. It provides

coverage for inpatient, outpatient, and intermediate mental health

care services for adolescents. Intermediate services — services

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somewhere between traditional inpatient and outpatient care —

include "acute residential treatment," "partial hospital

programs," and "intensive outpatient programs."

BCBS posits that the InterQual criteria's "Psychiatric

Subacute Care" level of care corresponds with the "acute

residential treatment" referenced in the Certificate.6 Given the

residential nature of Gateway and that it is not a "partial

hospital program" or an "outpatient" program, we agree that BCBS's

decision to follow its internal policy was reasonable. And because

the policy controls in this instance, BCBS acted appropriately in

analyzing Gateway as a psychiatric subacute care treatment

setting. Consequently, Stephanie had the burden of showing that

M.G. had either been discharged or transferred from psychiatric

hospitalization within twenty-four hours prior to his Gateway

admission. She offered no evidence to satisfy this burden. Hence,

we conclude — as did the district court, see Stephanie II, 2016 WL

3636978 , at *3 — that Stephanie failed to prove that Gateway's

services were medically necessary for M.G.'s care.

6 The parties tussle over the meaning of "acute" versus "subacute." BCBS asserts that the words are used interchangeably in the health insurance industry. Stephanie insists that "subacute," by definition, means less than "acute." But assuming, favorably to Stephanie, that "subacute" indicates a less intensive level of care in this instance, the BCBS's organizational policy of using the "Psychiatric Subacute Care" criteria would result in it employing a less stringent standard than required by the Plan, which covers "acute residential treatment."

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To sum up, an ERISA plan is a form of contract. See

Firestone, 489 U.S. at 112-13. Thus, contract-law principles

inform the construction of an ERISA plan, and the plain language

of the plan provisions should normally be given effect. See

Filiatrault v. Comverse Tech., Inc., 275 F.3d 131 , 135 (1st Cir.

2001). Seen in this light, the dispositive issue here is not

whether M.G.'s course of treatment at Gateway was beneficial to

him but, rather, whether that course of treatment was covered under

the Plan. Applying the plain language of the Plan, we hold that

the clear weight of the evidence dictates a finding that the

disputed charges were not medically necessary (as defined by the

Plan) and, thus, were not covered.

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

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