NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 1 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TODD R.; SUZANNE R.; LILLIAN R., No. 19-35475
FKA Jon,
D.C. No. 2:17-cv-01041-JLR
Plaintiffs-Appellees,
v. MEMORANDUM*
PREMERA BLUE CROSS BLUE
SHIELD OF ALASKA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted July 8, 2020
Seattle, Washington
Before: CLIFTON, D.M. FISHER,** and M. SMITH, Circuit Judges.
Defendant-Appellant Premera Blue Cross Blue Shield of Alaska appeals the
district court’s judgment in an action brought by Plaintiffs-Appellees Todd R.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
Suzanne R., and Lillian R. to recover medical benefits under an employee welfare
benefits plan (Plan) subject to the Employee Retirement Income Security Act. We
vacate and remand.
Although we do not believe the district court is in a better position than
ourselves to review the written administrative record, we need not resolve the
parties’ disagreement as to our standard of review. Even under a deferential
standard, the decision on the merits was clearly erroneous, see Silver v. Exec. Car
Leasing Long-Term Disability Plan, 466 F.3d 727, 732-33 (9th Cir. 2006), and the
district court’s departure from the principle of party presentation was an abuse of
discretion, see United States v. Sineneng-Smith, 140 S. Ct. 1575, 1578 (2020).
Plaintiffs seek reimbursement of their payments to Elevations Residential
Treatment Center, a facility in Utah, for Lillian’s around-the-clock behavioral
health care from May 1, 2014 to June 21, 2015. Premera, the Plan administrator,
denied coverage for lack of medical necessity, finding that Lillian showed none of
the six risk factors under the “Residential Acute Behavioral Level of Care, Child or
Adolescent” policy (Medical Policy) during the coverage period. That
determination was affirmed at each level of administrative review. On de novo
review, the district court disagreed, finding Lillian’s treatment medically necessary
based on the Medical Policy’s sixth factor: “Patient has currently stabilized during
2
inpatient treatment stay for severe symptoms or behavior and requires a structured
setting with continued around-the-clock behavioral care.”
The district court crafted that theory sua sponte. At no point below had
Plaintiffs argued, or even “so much as hint[ed],” Sineneng-Smith, 140 S. Ct. at
1580, that any Medical Policy factors had been satisfied. Rather, throughout the
administrative review process, and in their pleadings and moving papers before the
district court, Plaintiffs advocated for the use of less demanding guidelines to
assess medical necessity. Even after the district court issued a scheduling order
instructing the parties to address the Medical Policy’s sixth factor at their hearing,
Plaintiffs still did not advance the theory on which the district court relied.
On appeal, Premera contests the finding that the sixth provision applied to
Lillian’s circumstances by challenging the district court’s interpretation of the
terms “inpatient treatment stay” and its finding that Lillian was admitted “for
severe symptoms.” Premera also challenges the district court’s finding that Lillian
“require[d] a structured setting with continued around-the-clock behavioral care”
from May 1, 2014, to June 21, 2015. Based on the evidence, we conclude that
these findings were clearly erroneous.
For example, in finding Lillian’s treatment medically necessary, the district
court relied on Dr. Laura Brockbank’s February 2014 psychological evaluation, in
3
which Dr. Brockbank “strongly recommended” that Lillian “complete the
program” at Elevations. However, there is no evidence to suggest that this
recommendation was aligned with any medical necessity standard. The basis given
for Dr. Brockbank’s recommendation significantly departs from the Medical
Policy, which states that a patient may be discharged from residential care to a
lower level if, among other things, the patient “has not recently made a suicide
attempt or act of serious harm to self” and has lacked a “current plan for suicide or
serious harm to self for at least 24 hours.”
The district court found support for Dr. Brockbank’s recommendation
because of Lillian’s prior “history of running away and suicidal ideation” and
because in June 2014, Lillian reported an urge to self-harm and Elevations staff
briefly (for one day) placed her on self-harm precautions. Viewed in light of the
full record, however, that evidence did not meet Plaintiffs’ burden to show
Lillian’s medical need for around-the-clock monitoring and confinement from May
2014 to June 2015.
Under the principle of party presentation, courts must presume “that parties
represented by competent counsel know what is best for them, and are responsible
for advancing the facts and argument entitling them to relief.” Sineneng-Smith,
140 S. Ct. at 1579 (alteration omitted) (quoting Castro v. United States, 540 U.S.
4
375, 386 (2003) (Scalia, J., concurring in part and concurring in the judgment)).
That presumption naturally applies all the more in a case such as this, involving a
specialized area of civil law and competent, highly experienced counsel on both
sides. See id. Out of a concern for fairness, we do not reverse the decision below
but instead vacate and remand for resolution of the party-presented controversy.
See id. at 1581-82.
Each party to bear its own costs.
VACATED and REMANDED.
5