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Kenneth Wilson v. UnitedHealthcare Insurance Co

Court: Court of Appeals for the Fourth Circuit
Date filed: 2022-02-24
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                                               PUBLISHED

                              UNITED STATES COURT OF APPEALS
                                  FOR THE FOURTH CIRCUIT


                                                No. 20-2044


        KENNETH WILSON, as Parent and Natural Guardian of J.W., a minor child,

                    Plaintiff – Appellant,

              v.

        UNITEDHEALTHCARE INSURANCE COMPANY,

                    Defendant – Appellee.



        Appeal from the United States District Court for the District of South Carolina, at
        Charleston. David C. Norton, District Judge. (2:17-cv-03059-DCN)


        Argued: December 8, 2021                                     Decided: February 24, 2022


        Before AGEE, THACKER and QUATTLEBAUM, Circuit Judges.


        Affirmed in part, vacated in part, and remanded with instructions by published opinion.
        Judge Agee wrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.


        ARGUED: M. Leila Louzri, FOSTER LAW FIRM, LLC, Greenville, South Carolina, for
        Appellant. Cavender Crosby Kimble, BALCH & BINGHAM LLP, Birmingham,
        Alabama, for Appellee. ON BRIEF: Nathaniel W. Bax, FOSTER LAW FIRM, LLC,
        Greenville, South Carolina, for Appellant. Robert L. Brown, WILSON, JONES, CARTER
        & BAXLEY, P.A., Columbia, South Carolina, for Appellee.
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        AGEE, Circuit Judge:

               After health insurance payments for services provided to his minor son were denied,

        Kenneth Wilson filed a complaint in district court challenging that determination under 29

        U.S.C. § 1132(a)(1)(B). The court affirmed the plan administrator’s denial of coverage for

        the son’s treatment from December 1, 2015, through May 15, 2016, concluding the plan

        administrator acted reasonably under the relevant factors identified in Booth v. Wal-Mart

        Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335 (4th Cir. 2000). In addition, the

        district court dismissed Wilson’s claims arising from treatment his son received from May

        15, 2016, through his discharge on July 31, 2017, for failure to exhaust administrative

        remedies.

               Wilson appeals both dispositions. For the reasons set forth below, we affirm the

        district court’s judgment against Wilson for the denial of coverage for services provided

        from December 1, 2015, through May 15, 2016. We have broken up the analysis for

        Wilson’s claims related to the remaining services his son received based on a slightly

        different measure than the district court relied on, looking to whether the plan administrator

        denied coverage of the claims on or before January 26, 2017. Using that measure, we vacate

        the district court’s dismissal of Wilson’s claims for the administrator’s coverage

        determinations that were made before January 26, 2017, and that were not for services

        provided from December 1, 2015, through May 15, 2016. Lastly, we affirm the court’s

        dismissal of Wilson’s claim for coverage determinations the administrator made after

        January 26, 2017, (regardless of when the corresponding services were provided) because

        Wilson failed to exhaust his administrative remedies for those claims. Accordingly, we

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        affirm in part, vacate in part, and remand the case to the district court for entry of an order

        remanding the relevant claims to the plan administrator for a full and fair review under

        ERISA and the Plan.



                                                       I.

                                                 A. The Plan

               Wilson participates in the Towers Research Capital, LLC Welfare Benefit Plan (“the

        Plan”), a health insurance plan governed by the Employee Retirement Income Security Act

        of 1974 (“ERISA”). Wilson’s minor son, J.W., is a beneficiary of the Plan.

               UnitedHealthcare Insurance Co. (“United”) began insuring the Plan on December

        1, 2015, thus making it the plan administrator throughout the relevant period. 1 The parties

        agree that the Plan gave United, as plan administrator, discretionary authority to interpret

        its terms and make benefits determinations. While the Plan provides for coverage of both

        outpatient and inpatient, i.e., residential, behavioral health care services, only “[m]edically

        [n]ecessary” inpatient health services and treatments are covered. J.A. 54. The medical

        necessity criteria require that a patient’s care be provided in the least costly setting likely

        to produce an equivalent therapeutic result.

               The Plan establishes the process for United to make benefits determinations and for

        beneficiaries to appeal adverse coverage determinations. The medical necessity


               1
                 Different versions of the Plan governed each calendar year at issue in this case, but
        the three versions contain substantially similar relevant language. The district court and
        parties rely on the 2016 version and neither party has noted a reason not to do so. We
        therefore rely on the 2016 version.
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        determination is made during a “Utilization Review” process. J.A. 55. That process can

        occur before, during, or after a health care provider performs the services for which

        coverage is sought. If the administrator denies coverage for lack of medical necessity,

        beneficiaries can pursue two levels of internal review as well as an external review. 2

        Beneficiaries have 180 days after receiving notice of an adverse benefits determination to

        initiate a first-level appeal and must file a second-level appeal “within 45 days of receipt

        of the final adverse determination on the first level Appeal.” J.A. 58. The Plan requires the

        administrator to acknowledge a member’s request to appeal “within 15 calendar days of

        receipt,” id., and further requires notification of each level’s appeal decision within 30 days

        of receiving the request.

                                            B. J.W.’s Treatment

               Over a two-year period from July 2015 to July 2017, J.W. received residential

        treatment to address mood and behavior issues. Until that time, he’d never received

        inpatient psychiatric treatment, despite years of medication and counseling. J.W. was first

        admitted to residential treatment at Change Academy at Lake of the Ozarks (“CALO”)

        after experiencing behavioral issues, including “struggl[ing] with emotional regulation,

        depression, anxiety, anger and general mood swings.” J.A. 2353. At that time, he’d been

        diagnosed with disruptive mood dysregulation disorder, generalized anxiety disorder,

        attention-deficit/hyperactivity disorder, and an unspecified neurodevelopmental disorder.

        Two months before the coverage periods at issue in this case, he was moved from CALO


               2
                 The external appeal is governed by other deadlines and criteria that are not at issue
        in this case.
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        to an area hospital because he had suicidal thoughts and had threatened to kill himself,

        though he was released back to CALO after a four-day stay.

               This case involves claims for coverage of J.W.’s residential treatment at CALO

        from December 1, 2015 (when United took over the Plan’s administration) until July 31,

        2017 (when J.W. was discharged). As discussed in the analysis that follows, the parties and

        the district court divided Wilson’s claims into three groups based on the dates of service

        (“DOS”). The First DOS encompasses services CALO provided from December 1, 2015,

        through May 15, 2016. The Second DOS encompasses services CALO provided for three

        periods in 2016: July 16–31, 2016; August 1–15, 2016; and November 1–30, 2016. The

        Third DOS encompasses all other dates of services CALO provided from May 15, 2016,

        through J.W.’s discharge.

                                              C. The Claims

                              1. Claims for Coverage During the First DOS

               United denied Wilson’s claims for the First DOS based on its finding that J.W.’s

        residential treatment was not medically necessary. A letter from United explained that

        coverage was unavailable because J.W. “was admitted for inpatient treatment of his mood

        problems” that “did not need the 24-hour monitoring provided in a residential setting [given

        that] care could have been provided at a lower level of care such as partial hospital or

        intensive outpatient services.” J.A. 2873. Specifically, a board-certified psychiatrist made

        the initial benefits determination based on CALO’s records and other clinical records

        concerning the services provided to J.W. She determined that J.W. made progress in the

        months preceding the First DOS such that he did not satisfy the Plan’s criteria for

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        residential treatment. She pointed in particular to the lack of evidence that J.W. had a severe

        lack of behavioral control, required frequent medication changes, or needed 24-hour

        monitoring.

               On Wilson’s behalf, CALO appealed the denial of coverage for the First DOS.

        Consistent with the Plan’s procedures, United assigned the appeal to a different psychiatrist

        who was not involved in the initial denial. After reviewing “all aspects of clinical care

        involved in [J.W.’s] treatment” and discussing J.W.’s condition with his treating

        psychiatrist, the appeal psychiatrist upheld the initial determination to deny benefits. J.A.

        2889. In sum, he concluded that J.W.’s “behaviors had improved” by December 1, 2015,

        such that any disruptive episodes could have been safely treated in an outpatient setting.

        Id.

               CALO next sought an external appeal, which similarly upheld the denial as not

        medically necessary.

                                      2. Additional Claims for Coverage

               As the First DOS claims were being reviewed and appealed, J.W. continued to be

        treated at CALO, and CALO continued to submit claims for those residential services to

        United. However, United denied these claims, again finding a lack of medical necessity for

        inpatient treatment. As the claims were denied, United sent multiple Explanation of

        Benefits (“EOB”) letters to Wilson, setting out the reasons for United’s decision and

        explaining Wilson’s rights and responsibilities under ERISA and the Plan.

               On January 26, 2017, Wilson’s counsel faxed a letter to United indicating that she

        had been “retained to represent [Wilson] in connection with the appeal of [United’s] denial

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        of his health insurance benefits.” J.A. 2930. The letter’s subject line identified three

        specific claim numbers, which were for CALO’s services provided during the time periods

        the parties and district court later designated as the Second DOS. The letter also stated that

        Wilson’s “appeal is for the claims referenced above as well as any and all denied claims

        related to treatment received at [CALO].” Id.

               The January 26 letter identified two purposes for writing. First, it stated that Wilson

        “do[es] wish a review of the denial of Mr. Wilson’s claim pursuant to 29 U.S.C. § 1133”

        and indicated that although counsel “request[ed] that [United] begin [its] review,” she did

        “not wish for [United] to complete the review until [she was] able to submit to [United] all

        of Mr. Wilson’s medical records,” which she was in the process of obtaining. Id. Counsel

        indicated that it was “absolutely essential” that United consider those records “as a part of

        this review.” Id.

               Second, the letter asked United for “a complete copy of each and every document

        upon which [it had] based [its] denial of Mr. Wilson’s claim,” including “any medical

        documents, substantive documents, the plan document and any internal guidelines or

        regulations which [United] ha[d] used in evaluating [the] claim.” J.A. 2931. As support for

        the right to obtain copies of these records, the letter referenced “29 U.S.C. § 1132(c) and

        29 U.S.C. § 1133 as interpreted by the Fourth Circuit Court of Appeals in Ellis v.

        Metropolitan Life Insurance Company, 126 F.3d 228 (4th Cir. 1997) and the Code of

        Federal Regulations interpreting 29 U.S.C. § 1133.” Id. The letter reiterated its position

        that Wilson must “be given the documentation upon which his claim has been denied so



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        that [he has] a full and fair opportunity to respond to the same should he deem it

        appropriate.” Id.

               Attached to the January 26 letter were two signed documents: (1) a “Confirmation

        of Representation and Authorization for Release of Records and Reports,” Wilson’s Letter

        re: Court Order at 1, Wilson v. UnitedHealthcare Ins. Co., No. 20-2044 (4th Cir. filed Dec.

        13, 2021), ECF No. 45, and (2) a “Medical Authorization for Release of Records and Other

        . . . Identifying Information” to comply with the Health Insurance Portability and

        Accountability Act of 1996 (“HIPAA”) (“the HIPAA authorization form”), J.A. 2932.

               The confirmation of representation form contains a signature on a line for the

        “client” to sign, followed by Wilson’s social security number and birthdate. It states that

        the attorney who sent the January 26 letter had been retained to represent Wilson “in

        connection with [his] claim for health insurance benefits” and that Wilson authorized

        United to send his counsel “any and all information, which may be requested, from any

        medical provider, [his] insurance company or [his] employer regarding [him].” Wilson’s

        Letter re: Court Order at 4, ECF No. 45.

               The HIPAA authorization form similarly sought to authorize counsel to obtain

        copies of “patient” J.W.’s records that would otherwise be protected by privacy laws. In a

        section setting out the “Authorization and Scope” of the release, it identified ten categories

        of materials, including medical and psychiatric records, hospital records, laboratory

        reports, and medical opinions. J.A. 2932. It also authorized various entities to “discuss

        [J.W.’s] history, condition, treatment, claim and bills” with counsel. Id. The HIPAA

        authorization form acknowledged that “to be valid[, the form] must comply with 45 C.F.R.

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        § 164.508.” Id. The form contains an illegible signature on the line for a patient to “sign[]

        on his or her own behalf.” Id. The lines for a client to sign “on behalf of another person”

        and to indicate the basis for that authority to sign are blank. Id.

               Although United internally categorized the January 26 letter as an attorney’s request

        for release of information, it did not respond to the letter, produce any documents, or initiate

        an appeal.

               On February 24, 2017, counsel sent a second letter to United, which again

        specifically identified the three claim numbers associated with the Second DOS. It

        referenced the January 26 letter as having “notified” United that Wilson “was appealing”

        the denial of J.W.’s benefits and attached a copy of the prior letter. J.A. 2933. The letter

        observed that counsel had “not received any documents from [United] which [were]

        responsive to [her] attached request for documents.” Id. And it reiterated that counsel could

        not “prepare or submit any substantive documents . . . to be considered on review until

        [United] provide[d her] the” previously requested documents. Id. A response from United

        was requested within ten days. Further, the letter stated that if United did not provide the

        requested documents within the ten days, Wilson would be left with the assumption “that

        further attempts to exhaust administrative remedies [were] futile” and would instead “file

        suit” under ERISA. Id.

               United again internally categorized the letter as an attorney’s request for release of

        information, but did not respond, provide copies of documents, or initiate an appeal.




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                                             D. The Litigation

               In November 2017, Wilson filed a complaint, which he later amended, in the U.S.

        District Court for the District of South Carolina, alleging that United improperly denied

        health insurance benefits for J.W.’s residential treatment at CALO. More broadly, Wilson

        pled that United denied him a “full and fair review” of his claims under ERISA. J.A. 7.

               United responded, raising substantive and procedural grounds. Substantively, it

        asserted that Wilson was not entitled to benefits because J.W. did not meet the standard of

        care for inpatient care under the Plan for the relevant timeframe. As such, United asserted

        the services were not medically necessary and thus were ineligible for coverage.

        Procedurally, it maintained that although Wilson had exhausted administrative remedies

        for claims related to the First DOS, he had failed to do so for the claims submitted for the

        Second and Third DOS. As such, it asked the court to dismiss that part of Wilson’s case.

               The parties filed cross-memoranda in support of judgment. 3

               The district court granted summary judgment to United. As to the claims for the

        First DOS, the district court applied the relevant factors the Court identified in Booth—

        which we detail below—and determined that United did not abuse its discretion in denying

        coverage because that decision “was the result of a deliberate, principled reasoning process

        and supported by substantial evidence.” J.A. 2978. As for United’s denial of claims for the

        Second and Third DOS, the court concluded Wilson had failed to exhaust his



               3
                 The court’s ERISA management order relieved the parties of filing motions for
        summary judgment, but required them to submit memoranda in support of judgment and a
        stipulation setting out their positions on various questions.
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        administrative remedies and had not shown that exhaustion would be futile. The court

        determined that the January 26 letter requested a “Retrospective Review” under the Plan

        rather than an “appeal” and that United had no duty under the Plan or ERISA to respond to

        the letter because the Plan stated that an administrator’s failure to respond to a request for

        review should be viewed as a denial subject to appeal. J.A. 2963. Accordingly, the court

        dismissed with prejudice Wilson’s claims to the extent they were based on denial of

        coverage for services provided during the Second and Third DOS.

               Wilson noted a timely appeal, and we have jurisdiction under 28 U.S.C. § 1291.



                                                 II. First DOS

               We first consider Wilson’s argument that the district court should have held that

        United abused its discretion in denying his claims for coverage during the First DOS. In

        sum, he asserts that United’s decision failed to consider “all relevant medical evidence in

        support of” coverage. Opening Br. 26. To assess this argument, we begin by reviewing the

        Plan’s criteria for admission to an inpatient or residential treatment program, turn next to

        the Booth factors governing a court’s review of a coverage determination, and then recount

        the district court’s analysis. Lastly, we consider the record in light of Wilson’s challenges

        to the district court’s determination.

               We review the district court’s grant of summary judgment de novo, using the same

        standards as the district court to review the plan administrator’s decisions. Brogan v.

        Holland, 105 F.3d 158, 161 (4th Cir. 1997). In the ERISA context, the Supreme Court has

        “significantly curtailed a court’s ability to review a discretionary decision of the

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        administrators of an employee benefits plan,” such that “a reviewing court may reverse the

        denial of benefits only upon a finding of abuse of discretion.” Id.

                              A. The Plan’s Guidelines for Residential Treatment

               To assist fiduciaries in making the medical-necessity determination, the Plan

        permits them to “develop and maintain clinical policies that describe the Generally

        Accepted Standards of Medical Practice . . .[,] prevailing medical standards and clinical

        guidelines supporting [medical-necessity] determinations regarding specific services.” J.A.

        62. United did so through “Level of Care Guidelines,” which contain criteria relevant to all

        care and to behavioral health services specifically. J.A. 70. The generally applicable criteria

        for admission require that the condition for which the patient seeks coverage “cannot be

        safely, efficiently, and effectively . . . treated in a less intensive level of care,” and that the

        assessments and treatment of the factors leading to admission “require the intensity of

        services provided in the proposed level of care.” J.A. 72. In addition to this criteria

        applicable for all admissions, the particular guidelines for admission to a residential

        treatment center require: (1) that “[t]he member . . . not [be] in imminent or current risk of

        harm to self, others, and/or property”; and (2) that the factors that led to admission cannot

        “be safely, efficiently or effectively assessed and/or treated in a less intensive setting due

        to acute changes in the member’s signs and symptoms and/or psychosocial and

        environmental factors.” J.A. 70. Both the initial and continued residential treatment criteria

        point to the need for such services based on a behavioral or cognitive impairment that

        interferes with activities of daily life to the extent that the patient’s or others’ welfare is

        endangered. J.A. 70–72.

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               These standards govern both the utilization review that occurs during the initial

        benefits determination and during the appeals process.

                                         B. Booth’s Legal Standard

               In Booth, the Court set out a non-exhaustive list of factors to consider when

        determining whether an ERISA administrator abused its discretion. Those factors assist

        courts in undertaking their overarching and ultimate review “to determine whether the

        decision was reasonable,” i.e., “result[ing] from a deliberate, principled reasoning process

        and . . . supported by substantial evidence.” Griffin v. Hartford Life & Accident Ins. Co.,

        898 F.3d 371, 381 (4th Cir. 2018) (internal quotation marks omitted). Substantial evidence

        is evidence that “a reasonable mind might accept as adequate to support a conclusion.”

        Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015).

               Courts should consider the following, non-exhaustive, factors under Booth: the

        Plan’s language, the materials the administrator consulted in reaching its decision, whether

        the Plan has been interpreted consistently, “whether the decision was consistent with the

        procedural and substantive requirements of ERISA,” the existence of “any external

        standard relevant to the exercise of discretion,” and “the fiduciary’s motives and any

        conflict of interest it may have.” 201 F.3d at 342–43.

                                      C. The District Court’s Analysis

               The district court weighed the relevant Booth factors and determined that United’s

        decision to deny coverage for services J.W. received at CALO during the First DOS was

        the product of a principled and reasoned decisionmaking process. At the outset, the court

        observed that, under the Plan, United had full discretionary authority to determine

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        eligibility for benefits and there’s no suggestion that it failed to follow the Plan’s

        procedures in determining the First DOS claims. See id. at 343 (explaining courts should

        “examin[e] the language of the Plan to determine whether the provision of benefits is

        prescriptive or discretionary and, if discretionary, whether the plan administrator acted

        within its discretion”).

               The district court then examined “the adequacy of the materials considered to make

        the decision and the degree to which they support it.” Id. at 342. It found that the denial

        determinations were made after considering adequate materials, which included “J.W.’s

        treatment history, [his specific] treatment while at CALO, his underlying medical

        conditions, his family involvement, drugs prescribed to [him], conversations with J.W.’s

        psychiatrist at CALO, and his complete medical history.” J.A. 2973. And it observed that

        the denial determinations were later confirmed by an “independent, external reviewer”

        during Wilson’s external review. Id.

               The court also found that the decision-making process was reasoned and principled,

        and supported by substantial evidence. It observed, for example, that United followed Plan

        procedures and policies throughout the utilization review and first-level internal appeal.

        Further, the court determined that although “J.W.’s medical records show that he did

        exhibit isolated incidents that required emergency safety physical interventions during the

        First DOS, [when] taken in its entirety[,] the administrative record shows that [United’s]

        decision for a denial of coverage was supported by substantial evidence.” J.A. 2974.

               Next, the court considered whether United’s decision was consistent with ERISA’s

        procedural and substantive requirements. In determining that it was, the court observed that

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        United complied with ERISA’s time frames for making each step of the determination,

        Wilson was timely notified of its findings and next-step rights to appeal the decision, and

        Wilson did not dispute United’s compliance with ERISA throughout its review of the

        claims for coverage during the First DOS.

               Booth also provides that an administrator’s compliance with any external standards

        are relevant to the reasonableness of its determination, so the district court reviewed New

        York’s laws governing the denial of health insurance benefits. 4 Specifically, it observed

        that New York allows for an external review of the denial of benefits, and that United

        informed Wilson of that right. Wilson did pursue an external appeal, in which the external

        reviewer independently examined the record and agreed with the determination that J.W.’s

        treatment was not medically necessary. The court also noted that Wilson did not dispute

        United’s compliance with New York law.

               Lastly, the court considered United’s motives and any potential conflicts of interest.

        Wilson had not asserted any perceived conflicts, but the court nonetheless observed that

        any potential conflict would be defeated by the external appeal’s independent

        determination agreeing with United’s determination.

               Finding that the Booth factors weighed strongly in United’s favor, the district court

        concluded that it had not abused its discretion in denying coverage for claims submitted

        for the First DOS.




               4
                   The Plan is subject to New York law.
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                                                 D. Analysis

               Wilson challenges the district court’s determination, but does not dispute most of

        its factor-specific analysis under Booth. Instead, he contests the specific conclusion that

        United’s decision to deny was reasoned and principled, and supported by substantial

        evidence. He asserts that United “‘cherry picked’ evidence” because “the entirety of the

        administrative record” shows more than isolated incidents warranting physical intervention

        and, thus, residential treatment. Opening Br. 41–42. As support, Wilson points to “several”

        instances in which J.W. engaged in self-harm (scratching, cutting, and hanging over a

        balcony railing), admitted to suicidal ideation, and got into physical or verbal altercations

        with staff members or peers. Opening Br. 43. Wilson asserts that only by ignoring this

        record evidence could United conclude that J.W.’s time at CALO was “essentially

        unremarkable and uneventful” and thus deny coverage for claims based on the First DOS.

        Id.

               Having reviewed the record and the admission guidance, we conclude that United

        acted within its discretion to deny J.W.’s claims for the First DOS. As a whole, the medical

        record establishes that J.W. routinely engaged in reciprocal conversations and interacted

        with both peers and staff. He did not require intensive psychological intervention. Indeed,

        it appears that J.W. saw a licensed psychiatrist only about one time each month.

               Against that backdrop, the record does not show that J.W. required constant physical

        interventions for safety. The noted episodes occurred irregularly and thus do not call into

        question United’s overarching assessment. Here, the district court fairly characterized the



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        six incidents Wilson identifies as “isolated” considering that they occurred on six days

        during the First DOS’s five-month span. J.A. 2974.

               These incidents do not substantially call into question United’s discretion in denying

        benefits for the First DOS. In a situation with a more closely conflicting medical record to

        resolve, we observed that it is the ERISA fiduciary’s “duty” “to resolve the conflicts” and

        “it is not an abuse of discretion for a plan fiduciary to deny benefits where conflicting

        medical reports were presented.” See Booth, 201 F.3d at 345 (internal quotation marks,

        citation, and alteration omitted). So long as sufficient evidence supports the decision, and

        the process by which the determination was made is principled and reasoned, the Court has

        “no basis” to second-guess an administrator’s denial of benefits. Id. at 346.

               Before issuing a final determination to deny coverage, three levels of review

        occurred—the initial utilization review, the first-level internal appeal, and an external

        review. The three independent reviewers separately arrived at the same conclusion: the 24-

        hour residential setting of services provided at CALO were no longer needed by the

        beginning of—and throughout—the First DOS. E.g., J.A. 2867–68 (denying coverage at

        the utilization review stage after determining that J.W. “did not need the 24 hour

        monitoring provided in a residential setting, and care could have been provided at a lower

        level of care” such as an “intensive outpatient setting with individual psychotherapy, family

        therapy and medication management”); J.A. 2889 (upholding the initial determination on

        appeal because during the First DOS J.W.’s “behaviors had improved” and “[h]e appeared

        to be able to continue his care at a day program,” which was “available in [the Wilsons’]

        home area,” and thus did not meet the criteria for residential treatment); J.A. 2856

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        (agreeing, at the external appeal stage, that residential treatment “was not medically

        necessary” because “[n]othing in the documentation reviewed indicates that this patient

        required or could benefit from 24-hour daily confinement, observation, and treatment” and

        that a “more appropriate treatment plan would have included intensive outpatient treatment

        with a very strong family therapy component while the patient lived in his community with

        his family”). That determination is consistent with the criteria United established pursuant

        to the Plan, which set out that coverage can be denied for not being medically necessary

        when care could have occurred at a less intensive setting.

                                                  ****

               At bottom, Wilson has not identified a sufficient basis for concluding that United

        abused its discretion in denying coverage for the claims submitted for the First DOS.

        United’s decision to deny coverage during that period “was the result of a deliberate,

        principled reasoning process and supported by substantial evidence.” J.A. 2978. We

        therefore affirm the district court’s entry of judgment in United’s favor as to the decision

        to deny coverage for the First DOS.



                                      III. The Second & Third DOS

               We next turn to Wilson’s challenge to the district court’s dismissal—for failure to

        exhaust remedies—of his claims based on United’s denial of coverage for services

        provided during the Second and Third DOS. Wilson asserts he was excused from

        exhausting those remedies because he initiated an appeal and requested copies of

        documents, but United failed to respond to either, thwarting the Plan’s internal review

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        process and making exhaustion futile. He contends the district court erred in holding that

        counsel’s January 26 and February 24 letters (collectively “the 2017 letters”) did not

        initiate an “appeal” of United’s initial decisions to deny coverage and that United was

        required to respond and also to provide copies of requested materials to which he was

        entitled under ERISA and the Plan.

               In response, United urges us to affirm the district court’s dismissal of these claims.

        It asserts that the district court properly construed the 2017 letters to request something

        short of an unequivocal appeal of the denial of coverage. Further, it contends the 2017

        letters could not operate as an appeal of any coverage denials falling within the Third DOS

        that post-date when the letters were written, i.e., claims that were provided or denied after

        February 24, 2017. United also argues that it had no duty to respond to the letters’ request

        for production of documents because all of the requested materials are privileged by

        HIPAA and the HIPAA authorization form was defective because it was not properly

        signed.

                                     A. ERISA’s Exhaustion Requirement

               Although “ERISA does not contain an explicit exhaustion provision,” “an ERISA

        claimant generally is required to exhaust the remedies provided by the employee benefit

        plan in which he participates as a prerequisite to an ERISA action for denial of benefits

        under 29 U.S.C. § 1132.” Makar v. Health Care Corp. of Mid-Atlantic (CareFirst), 872

        F.2d 80, 82 (4th Cir. 1989). Courts have imposed this requirement because it is consistent

        with the “Act’s text and structure as well as the strong federal interest encouraging private

        resolution of ERISA disputes.” Id. The exhaustion requirement means that claimants must

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        follow the Plan’s internal procedures for a “full and fair review” of a plan administrator’s

        denial of a claim for benefits. Id. at 83.

               We have previously recognized that a failure to exhaust may be excused when

        pursuing internal remedies would be “futile.” Id. More than “bare allegations of futility”

        must be demonstrated, however, as a claimant must come forward with a “clear and

        positive showing” to warrant “suspending the exhaustion requirement.” Id. (internal

        quotation marks omitted); see Hickey v. Digital Equip. Corp., 43 F.3d 941, 945 (4th Cir.

        1995) (rejecting an assertion of futility when claimant did not file a written claim and

        alleged, with no further foundation, that doing so would have been “a mere formality if not

        a charade”). Further, an administrator’s failure to “provide a reasonable claims procedure”

        under ERISA “entitle[s] [beneficiaries] to pursue any available remedies” and thus to “be

        deemed to have exhausted the administrative remedies available under the [P]lan.” 29

        C.F.R. § 2560-503-1(l)(1). 5

               When exhaustion is excused, the district court may consider “the claimant’s

        entitlement to benefits in the first instance.” Riggs v. Ballard Tire & Oil Co. Pension Plan



               5
                 Courts have taken different approaches in classifying the grounds for excusing
        exhaustion. Some courts have grouped a variety of reasons to excuse exhaustion under the
        umbrella term “futility.” E.g., Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1085
        (8th Cir. 2009) (citing other circuit courts). Others use a narrower definition of futility,
        requiring, for example, proof that the claim would have been denied, and classifying other
        grounds for excusing exhaustion as something other than “futility.” Id. at 1085–87
        (declining to label an argument as “futility,” but observing that it nonetheless was “a
        winner” that excused the claimant’s failure to exhaust). While our cases have only
        previously discussed “futility,” the labels don’t necessarily matter because they lead to the
        same result—sufficient evidence, rather than a mere assertion, that relieves the claimant of
        navigating the administrative process before filing suit.
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        & Tr., 979 F.2d 848, 1992 WL 345584, at *2 (4th Cir. 1992) (unpublished table decision)

        (citing Licensed Div. Dist. No. 1 MEBA/NMU, AFL-CIO v. Defries, 943 F.2d 474, 478–80

        (4th Cir. 1991)). But in the case of procedural noncompliance with ERISA’s full and fair

        review process, we have recognized that the appropriate relief is to remand for the

        administrative process to be properly applied. Gagliano v. Reliance Standard Life Ins. Co.,

        547 F.3d 230, 239–42 (4th Cir. 2008).

                 We review the district court’s determination that Wilson failed to exhaust his

        administrative remedies for abuse of discretion. DuPerry v. Life Ins. Co. of N. Am., 632

        F.3d 860, 876 (4th Cir. 2011). A district court “abuses its discretion when it acts arbitrarily

        or irrationally, fails to consider judicially recognized factors constraining its exercise of

        discretion, relies on erroneous factual or legal premises, or commits an error of law.”

        Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 226–27 (4th Cir.

        2009).

                                  B. The Claims Affected by the 2017 Letters

                 Before analyzing the substantive requests made in the 2017 letters, we must first

        determine which claims they relate to and therefore which claims our analysis affects.

        Although the district court and the parties have treated the Second and Third DOS claims

        identically, we conclude that a more nuanced approach is required.

                 The 2017 letters indisputably address the claims for the entire Second DOS, that is,

        the services CALO provided on July 16–31, 2016; August 1–15, 2016; and November 1–

        30, 2016. As noted, the 2017 letters’ subject lines referenced three claim numbers that

        corresponded with Wilson’s claims for these three specific timeframes. The district court

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        and the parties carved out the claims for services provided during these three delineated

        timeframes as the “Second DOS.” J.A. 2955. Because of this explicit cross-reference in the

        letters, any analysis of the 2017 letters’ contents applies to the denial of coverage for

        services provided during the Second DOS so defined.

               The record is less developed for the claims designated as the “Third DOS.” J.A.

        2958. This label served as a catch-all for claims relating to J.W.’s residential treatment at

        CALO that did not fall within the First DOS or Second DOS and for which United had

        denied coverage. Put another way, as described by the parties and the district court, the

        Third DOS encompasses claims submitted for services provided from May 16, 2016, (the

        day after the First DOS ended) to July 31, 2017, (the date of J.W.’s discharge), except for

        the claims submitted for services provided during the three timeframes comprising the

        Second DOS.

               We conclude that it’s appropriate to consider claims for services denied before the

        date of the January 26 letter as part of the analysis of the 2017 letters’ substance, but that

        claims for services denied after that date do not reasonably fall within its scope. The text

        of the January 26 letter expressly stated that its requests pertained to “the claims referenced

        above as well as any and all denied claims related to treatment received at [CALO].” J.A.

        2930 (emphasis added). Thus, the plain language of the letter encompasses more than just

        the claims for the Second DOS; it also refers to additional claims United had denied as of

        the letter’s date. But it does not follow that the letter references all other past and future

        claims Wilson submitted for coverage of his son’s treatment at CALO.



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               Setting aside the question of whether a letter could effectively pull in future denials

        of coverage, the January 26 letter did not do so. The letter repeatedly characterized both

        counsel’s representation of Wilson and its specific requests in terms of claims that United

        had already denied. For example, the letter stated counsel’s retention to represent Wilson

        “in connection with the . . . denial of his health insurance benefits,” and elsewhere

        referenced Wilson’s “denied claims” and the “denial of Mr. Wilson’s claim.” Id. (emphases

        added). This language looks only to United’s past conduct. It does not make any requests

        about United’s process for reviewing then-pending or not-yet-submitted claims, let alone

        clearly indicate that the letter’s requests encompass future claims for services that had not

        yet been provided.

               Consistent with this reading, one of the January 26 letter’s purposes was to notify

        United that Wilson “d[id] wish a review” or an “appeal.” Id. Regardless of what this request

        actually accomplished under the Plan, one cannot “review” or “appeal” a decision that has

        not yet been made. Similarly, the letter requested “medical documents” United relied on to

        deny coverage. J.A. 2931. Regardless of whether United needed to respond to that request,

        the request itself could only be made for claims that had been denied as of the time it was

        made. For these reasons, although the January 26 letter’s contents pulled in more than just

        the claims comprising the Second DOS, it only encompasses additional claims for which

        United had already denied coverage.

               The February 24 letter did not expand the scope of the January 26 letter because it

        merely cross-referenced and reiterated the requests made in the earlier letter.



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               In sum, when analyzing the substantive requests made in the 2017 letters, we are

        discussing a narrower number of claims than what the district court addressed—only those

        claims for which United had denied coverage as of January 26, 2017. 6 We will adopt the

        phrase “modified Third DOS” to refer to the subset of Third DOS claims affected by our

        analysis of the 2017 letters’ requests. To reiterate, the modified Third DOS consists of any

        claims that are not part of the First DOS or Second DOS and that United had denied

        coverage for as of January 26, 2017. The analysis that follows concerning the 2017 letters

        relates solely to the Second DOS and the modified Third DOS.

                                   C. 2017 Letters’ Request for Documents

               Our review convinces us that the district court abused its discretion in dismissing

        Wilson’s claims based on the denial of coverage during the Second and modified Third

        DOS. Given the interconnectedness of the various arguments, we begin our analysis with

        the thread that leads to the cleanest untangling for the parties upon remand: the 2017 letters’

        request for production of documents.

                                          1. Underlying Facts & Law

               Four facts are beyond dispute—First, quite apart from whether they initiated an

        appeal, the 2017 letters unequivocally requested that United provide certain materials to

        Wilson’s counsel. The January 26 letter stated as its “second purpose” “to request a

        complete copy of each and every document upon which [United had] based [its] denial of


               6
                 On the record before us we cannot say what specific claims for which dates of
        service comprise the modified Third DOS. We leave for the parties to settle that issue on
        remand, with the cut off being that United denied coverage for those claims on or before
        January 26, 2017, (and are not part of the First DOS).
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        Mr. Wilson’s claims. Such documents include any medical documents, substantive

        documents, the plan document and any internal guidelines or regulations which [United

        had] used in evaluating [the] claim.” J.A. 2931. And, as noted earlier, the letter expressly

        referenced Wilson’s right to review this “documentation” to prepare a response that would

        be used during the full and fair review of the prior adverse benefits determination. Id. The

        February 24 letter similarly informed United that counsel had not received “any

        documents” requested in the earlier January 26 letter, all of which counsel deemed

        necessary to prepare Wilson’s response to the denial of coverage. J.A. 2933.

               Second, United did not provide any of the requested materials or respond to the

        letters in any fashion.

               Third, as a general matter, Wilson—whom the 2017 letters identified as a Plan

        participant, a fact uncontested by United—had the right to request and receive copies of

        the requested documents, which United would ordinarily be obligated to provide. For

        example, 29 U.S.C. § 1133 gives beneficiaries the right to a “full and fair review” of denied

        claims, part of which includes the right to request—and the obligation on administrators to

        “provide[], upon request and free of charge, reasonable access to, and copies of, all

        documents, records, and other information relevant to the claimant’s claim for benefits.”

        29 C.F.R. § 2560.503-1(h)(2)(iii); see also id. § 2560.503-1(h)(3) (stating this requirement

        applies to group health plans); 29 U.S.C. § 1024(b)(4) (stating that copies of plan

        documents are to be provided to participants “upon written request”); 29 U.S.C. § 1132(c)

        (addressing the forms of relief available when administrators refuse to supply information

        to which beneficiaries are entitled upon request). As it was required to do, the Plan

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        incorporated these principles. E.g., UnitedHealthcare Choice Plus Certificate of Coverage

        (“Plan Document”) at 242, Wilson v. UnitedHealthcare Ins. Co., No. 2:17-cv-03059-DCN

        (D.S.C. filed June 19, 2019), ECF No. 35-4 (stating that “[s]pecific guidelines and

        protocols [to assist in determining if services are medically necessary] are available for

        [Plan participants] upon request”); 7 see also id. at 304, 312.

               Fourth, Plan participants can authorize third parties to request copies of materials

        on the participants’ behalf. See, e.g., 29 C.F.R. § 2560.503-1(b)(4) (permitting “an

        authorized representative of a claimant” to “act[] on behalf of such claimant in pursuing a

        benefit claim or appeal of an adverse benefit determination”); Plan Document at 304, ECF

        No. 35-4 (permitting Plan participants to authorize a third party to request copies of the

        participants’ health information).

                                         2. United’s HIPAA Defense

               United does not dispute these factual points and acknowledges that it ordinarily

        would have had a duty to provide Wilson with copies of the requested documents.

        Nonetheless, United insists that it had no obligation to produce any materials because they

        are all protected by HIPAA and Wilson’s HIPAA authorization form was fatally defective.

               Specifically, United asserts the signature on the authorization form does not satisfy

        HIPAA’s requirements for a valid authorization. The authorizing signature, which is



               7
                 United filed this document as part of its evidentiary appendix to the parties’ joint
        stipulation in the district court below. See Evidentiary App. to Joint Stipulation, Wilson v.
        UnitedHealthcare Ins. Co., No. 2:17-cv-03059-DCN (D.S.C. filed June 19, 2019), ECF
        No. 35. It is not included in full in the Joint Appendix, so the opinion cites the document
        that is part of the district court record as appropriate.
                                                      26
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        illegible, was on the line for a “client/patient” to sign “on his or her own behalf” as opposed

        to the line designated for a “client” to sign “on behalf of another person.” J.A. 2932. United

        contends that because J.W. was a minor, he could not sign the HIPAA authorization form

        personally and was required to have an authorized individual sign on his behalf. Thus,

        United posits, either J.W. signed the form and that was ineffective, or else Wilson signed

        the form and it’s ineffective because he signed on the incorrect line and failed to identify

        his authority to do so as required by 45 C.F.R. § 164.508(c)(vi). Either way, United argues

        the form did not comply with HIPAA’s exacting standards and, as such, no documents

        could be provided to Wilson’s counsel.

               United further contends that it had no obligation under the Plan, ERISA, or HIPAA

        to notify Wilson’s counsel that it would not produce any materials or to explain why.

        Indeed, United maintains that it could not contact counsel because doing so would itself

        violate HIPAA by disclosing protected information about J.W. Related to this broad view

        of HIPAA’s scope, United asserts that HIPAA protected all the materials requested in the

        2017 letters, including copies of the Plan and any internal guidelines or regulations that

        United used to evaluate any Plan participant’s claims for coverage, including Wilson’s.

                                   3. Analysis of United’s HIPAA Defense

               HIPAA is a sometimes confusing and obtuse federal law that prohibits covered

        entities from “knowingly” disclosing an individual’s “individually identifiable health

        information” “without authorization.” 42 U.S.C. § 1320d-6(a), (b); 45 C.F.R.




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        § 164.508(a)(1). 8 “Individually identifiable health information” is “a subset of health

        information,” 45 C.F.R. § 160.103, and understanding the difference between the two terms

        of art aids in understanding the flaws in United’s argument. “Health information” means

        information that “is created or received by a health care provider, health plan, public health

        authority, employer, life insurer, school or university, or health care clearinghouse” that

        “relates to the past, present, or future physical or mental health or condition of an

        individual, the provision of health care to an individual, or the past, present, or future

        payment for the provision of health care to an individual.” 42 U.S.C. § 1320d(4); 45 C.F.R.

        § 160.103. “Individually identifiable health information” has the same initial requirements,

        but must also either “identif[y] the individual” or be of a type “to which there is a

        reasonable basis to believe that the information can be used to identify the individual.” 42

        U.S.C. § 1320d(6); 45 C.F.R. § 160.103.

                                   a. Request for Plan-Related Documents

               Applying these definitions to the 2017 letters, it is clear that some of the requested

        materials should have been disclosed because they do not constitute and would not lead to

        J.W.’s “individually identifiable health information” and thus would not require a HIPAA-

        compliant authorization form before being provided to Wilson’s counsel. Further, it’s

        undisputed that the 2017 letters plainly identified Wilson as a Plan participant, such that he




               8
                It is uncontested that United is a covered entity subject to HIPAA’s limitations on
        the use and disclosure of protected health information. See generally 45 C.F.R.
        §§ 160.102(a), 164.500, 164.502.
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        had a right under the Plan and ERISA to obtain copies of certain generally applicable Plan-

        related documents upon request (or upon his authorized representative’s request).

               As the definition of “individually identifiable health information” demonstrates, to

        fall within this term’s scope, the material must either identify or be such that it could

        reasonably be used to identify a specific individual. We fail to see how a copy of the Plan—

        applicable to all beneficiaries—could conceivably identify J.W. directly or indirectly.

        Similarly, the “internal guidelines or regulations” established pursuant to the Plan for

        determining medical necessity would not identify J.W. or lead to his identification. J.A.

        2931. These are generic documents governing United’s assessment of any beneficiary’s

        claims. Further, the 2017 letters requested any “substantive documents” used to deny

        coverage as part of a utilization review. Id. United may have had in its possession additional

        documents that fall within this category, must be disclosed under ERISA, and do not bear

        the individual identifiers that would subject it to HIPAA. These three categories of

        materials share the common feature of lacking any contents that either identifies or could

        reasonably be used to identify J.W. personally. See 45 C.F.R. § 164.514(a) (“Health

        information that does not identify an individual and with respect to which there is no

        reasonable basis to believe that the information can be used to identify an individual is not

        individually identifiable health information.”).

               United was required under ERISA and the Plan to provide copies of all the foregoing

        information to Wilson’s counsel irrespective of the validity of the HIPAA authorization

        form. E.g., Plan Document at 312, ECF No. 35-4 (reiterating that Plan participants “are

        entitled to obtain, upon written request to the Plan Administrator, copies of documents

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        governing the operation of the plan”); 29 C.F.R. § 2560.503-1(g)(v) (setting out a group

        health plan’s obligation to provide copies of “an[y] internal rule, guideline, protocol, or

        other similar criterion . . . relied upon in making [an] adverse [benefit] determination”); id.

        § 2560.503-1(h)(iii) (setting out a plan administrator’s obligation to provide “upon request

        and free of charge, reasonable access to, and copies of, all documents, records, and other

        information relevant to the claimant’s claim for benefits”). It possessed the January 26

        letter describing the request as well as Wilson’s confirmation of representation designating

        his counsel as a third party who could act on his behalf. As an undisputed plan participant,

        Wilson—or his designated representative—had the right to request these materials under

        both the Plan and ERISA, and United had a corresponding duty to provide them.

        Responding to that request would not have disclosed anything to identify J.W., as it would

        disclose only the Plan and related documents governing any plan participant’s claims.

        United, however, failed to respond in any way.

               Without copies of the Plan and guidelines, Wilson was put at a distinct disadvantage

        in understanding how to proceed. Ellis, 126 F.3d at 236–37 (observing that ERISA’s

        extensive procedural requirements “have been read as ensuring that a full and fair review

        is conducted by the administrator[] [and] that a claimant is enabled to prepare an appeal

        for further administrative review or recourse to the federal courts” (emphasis added)). As

        but one example, United contends that the January 26 letter was not a proper request for an

        appeal under the Plan by pointing to criteria set out in the Plan documents (and not

        contained in the EOBs). But by failing to provide these documents, United violated its

        fiduciary obligations under ERISA and the Plan, and impeded the appeal process.

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               Upon hearing nothing from United in response to either of the 2017 letters, Wilson

        had reason to believe that United was not going to comply with the procedures set out in

        the Plan as to the Second DOS and modified Third DOS. The EOBs accompanying

        United’s initial denial of coverage informed Wilson that he could “request copies (free of

        charge) of information relevant to [his] claim by contacting [United] at the above address.”

        E.g., J.A. 2907. Moreover, ERISA obligates administrators to respond to requests for

        information that ERISA requires the administrator to provide participants “within 30 days

        after [the] request.” 29 U.S.C. § 1132(c)(1); Plan Document at 312, ECF No. 35-4 (reciting

        this participant right and administrator duty in the Plan’s notice of ERISA rights). 9 The

        letters were sent January 26, 2017, and February 24, 2017, respectively, and Wilson heard

        nothing from United for well over 30 days.

               United’s failure to provide the requested Plan-related documents provides a “clear

        and positive showing of futility” in attempting further communications with it about the

        production of documents and warrants excusing Wilson from the exhaustion requirement.

        Makar, 872 F.2d at 82 (internal quotation marks omitted); e.g., Brown, 586 F.3d at 1085–

        86 (concluding claimant was excused from failing to exhaust after the administrator failed

        to respond to repeated requests for documents she was entitled to under the plan and ERISA

        because, “[w]ithout the Administrative Record and other requested documents in hand,

        [she] was unable fully and fairly to prepare her appeal”); Lanfear v. Home Depot, Inc., 536


               9
                 Copies of materials relating to the Plan and benefits determinations are not a mere
        courtesy. Indeed, ERISA authorizes courts to impose a daily fine for an administrator’s
        failure to timely provide copies of materials that must be turned over upon request. 29
        U.S.C. § 1132(c)(1).
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        F.3d 1217, 1224–25 (11th Cir. 2008) (observing that past cases had found “exhaustion was

        futile because plan administrators had denied a participant meaningful access to

        administrative proceedings by repeatedly ignoring requests for documents supporting the

        denial of benefits”).

                                  b. Request for J.W.-Specific Documents

               In addition to the request to provide Plan-oriented documents, the 2017 letters also

        requested materials that do fall within the definition of “individually identifiable health

        information,” most notably any “medical documents” United relied on to deny coverage.

        J.A. 2931. J.W.’s medical records and opinions about his diagnoses and treatment would

        contain J.W.’s name and other contents from which he could be reasonably identified. As

        such, those and similar materials with such markers that were responsive to the request

        required a HIPAA-compliant authorization form before they could be disclosed to counsel.

        See 45 C.F.R. § 164.508(a)(1) (“Except as otherwise permitted or required by this

        subchapter, a covered entity may not use or disclose protected health information without

        an authorization that is valid under this section. When a covered entity obtains or receives

        a valid authorization for its use or disclosure of protected health information, such use or

        disclosure must be consistent with such authorization.”). United therefore was precluded

        by HIPAA from turning over these materials without a “valid” HIPAA authorization form.

               As to the documents protected by HIPAA, it’s not clear that Wilson’s signed HIPAA

        authorization form complied with the relevant regulations. Id. To be valid, the form must

        meet certain criteria, including containing several “core elements.” Id. § 164.508(b), (c).

        In relevant part, the authorization form must contain the “[s]ignature of the individual and

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        date,” and “[i]f the authorization is signed by a personal representative of the individual, a

        description of such representative’s authority to act for the individual.” Id.

        § 164.508(b)(1)(ii), (c)(1)(vi); see also id. § 164.508(b)(2)(ii) (stating that an authorization

        from is “defective” if it has “not been filled out completely, with respect to an element

        described by paragraph (c) of this section”).

               But Wilson’s HIPAA authorization form contained an illegible signature. The top

        of Wilson’s HIPAA authorization form identifies J.W. as the patient; provides his social

        security number and date of birth; and identifies the Foster Law Firm, L.L.P., as the entity

        to whom HIPAA-protected information can be disclosed. The form is signed illegibly; it is

        simply not readable to determine who actually signed it. Nor does any surrounding

        information clear up that illegibility. The signature appears in the subsection for a

        “client/patient” to sign “on his or her own behalf” and appears above the typed word,

        “Client,” suggesting it was signed by the individual who hired the Foster Law Firm, L.L.P.,

        Wilson, despite being a request to disclose J.W.’s HIPAA-protected records. J.A. 2932.

        The next section’s signature line is left blank, but is where a client should have signed “on

        behalf of another person.” Id. That section also contains a designated space for identifying

        the document being attached to verify the signatory’s authority to sign on behalf of the

        named patient, but that too was left blank. As noted, however, to be a valid signature

        authorizing the release of another individual’s protected health information, HIPAA

        requires that the authorization form describe the basis for that authority. 45 C.F.R.

        § 164.508(c)(1)(vi). It’s not clear that the signature on the form here satisfies HIPAA’s

        requirements.

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               Separate from United’s valid refusal to produce J.W.-specific materials without a

        valid HIPAA authorization form is the independent question of whether—as United

        contends—HIPAA prohibited it from alerting Wilson’s counsel that the signature on the

        authorization form was illegible and that as a consequence it could not determine that the

        HIPAA authorization form complied with 45 C.F.R. § 164.508. The answer to that question

        is that HIPAA did not prohibit United from contacting Wilson’s counsel. Doing so would

        take no particular legal expertise and would not disclose any individually identifiable

        health information. For example, United could have simply responded that it was in

        possession of counsel’s January 26 letter, but the attached HIPAA authorization form

        contained an illegible signature that meant United could not determine whether the

        signature complied with 45 C.F.R. § 164.508’s requirements for a valid authorization form.

        Such a straightforward response would not disclose any “health information” at all, let

        alone “individually identifiable” health information.

               United’s arguments to the contrary find no support in the definition of individually

        identifiable health information or the case law on which it relies. In response to questioning

        at oral argument, United cited Tate v. N.C. Pepsi-Cola Bottling Co. of Charlotte, Inc., No.

        3:09CV36–RJC–DSC, 2009 WL 3242117 (W.D.N.C. Oct. 5, 2009), as its “best case” to

        support the argument that it could not respond in any manner to the 2017 letters without

        violating HIPAA. There, the plaintiff’s lawyer sought production of medical records from

        an entity subject to HIPAA, but failed to provide a HIPAA-compliant medical

        authorization form. The district court held that the covered entity could not “release [the

        plaintiff’s] medical records, even to his attorney,” without a HIPAA-compliant

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        authorization, nor could the entity “even confirm whether [p]laintiff received health care

        services from it” without that form. Id. at *1.

               Tate is inapposite. Confirming that a specific individual received services from a

        specific provider may well involve individually identifiable health information because it

        conveys information about “the provision of health care” to an identified person. 42 U.S.C.

        § 1320d(4); 45 C.F.R. § 160.103. But responding to counsel’s request for production of

        documents by noting that the attached HIPAA authorization form contains an illegible

        signature does not implicate any aspect of HIPAA-protected information. 10

               To be sure, concluding that HIPAA did not prohibit United from alerting Wilson’s

        counsel to the illegible signature does not mean that United had an obligation to do so. That

        requires us to consider the scope of United’s fiduciary duties under the Plan, ERISA, and

        our case law describing the plan administrator’s duties in providing claimants with a full

        and fair review of the denial of their claims for benefits. Our assessment leads to the narrow

        conclusion that under the specific circumstances of this case, United had an obligation to

        notify Wilson’s counsel of the illegible signature.

               At the outset, ERISA’s overarching structure supports our conclusion. The Act

        generally “imposes broad fiduciary responsibilities on plan trustees,” requiring them to


               10
                  At the Court’s instruction, the parties submitted supplemental letters on the
        question of whether HIPAA prohibited United from disclosing nonmedical documents in
        response to the 2017 letters. The cases United cites to support its position are
        distinguishable and reaffirm that the specific inquiry is not whether the materials
        conceivably or actually relate to health information in the abstract, but rather center on
        whether the recipient would be able to use that information or surrounding circumstances
        to connect that information to a specific individual’s health, conditions, health care
        treatment, or payment for health care. 42 U.S.C. § 1320d(4); 45 C.F.R. § 160.103.
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        “perform their obligations with diligence” and to “discharge their duties ‘solely’ in the

        interest of plan participants and their beneficiaries.” Makar, 872 F.2d at 83 (quoting 29

        U.S.C. § 1104(a)(1)); Aetna Health Inc. v. Davila, 542 U.S. 200, 220 (2004) (observing

        that a plan administrator acts as a plan fiduciary when carrying out ERISA’s “extensive

        requirements to ensure full and fair review of benefit denials”); see also Plan Document at

        312, ECF No. 35-4 (notifying Plan participants that ERISA imposes duties on the plan

        fiduciaries to operate the Plan “prudently and in the interest of you and other plan

        participants and beneficiaries”). To permit a fiduciary such as United to remain silent under

        the circumstances presented in this case would hardly be consistent with this objective. It

        would sanction an administrator’s silence in the face of attempts by an undisputed bona

        fide Plan participant, Wilson, to obtain materials to which he had a right under the Plan

        and ERISA.

               United’s failure to answer regarding the illegible signature is counter to an

        administrator’s role under ERISA as a fiduciary who must discharge its duties in the

        interests of its participants and beneficiaries. We have previously recognized, for example,

        that although claimants bear “primary responsibility” for presenting their claims for

        review,

               ERISA does not envision that the claims process will mirror an adversarial
               proceeding where the [claimant] bear[s] almost all of the responsibility for
               compiling the record, and the [fiduciary] bears little or no responsibility to
               seek clarification . . . . Rather, the law anticipates, where necessary, some
               back and forth between administrator and beneficiary.

        Harrison v. Wells Fargo Bank, N.A., 773 F.3d 15, 21 (4th Cir. 2014) (internal quotation

        marks and citation omitted) (first three alterations in original).

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               Had United alerted Wilson’s counsel to the problem with the HIPAA authorization

        form, Wilson could have timely cured it and continued with the process established in

        ERISA for a full and fair review of the denial of his claims for coverage during the Second

        DOS and modified Third DOS rather than turning to the courts. That course would further

        ERISA’s intended framework: “[t]he full and fair review procedural requirements serve

        two complementary purposes,” “permit[ting] a plan’s administrators to resolve disputes in

        an efficient, streamlined, non-adversarial manner” while also “ensur[ing] that a plan

        participant is protected from arbitrary or unprincipled decision-making.” Ellis, 126 F.3d at

        236.

               We are careful to note the fact-specific nature of our holding as ERISA clearly

        places on claimants the ultimate burden of pursuing their claims. While we have recognized

        that plan administrators are not required to hand-hold a claimant through the review

        process, they are not entitled to sandbag the process either. Cf. id. at 237. We have

        previously recognized that because “plan administrators possess limited resources, and . . .

        there are practical constraints” on processing requests, the governing rule should be “one

        of reason.” Harrison, 773 F.3d at 22. Here, as noted, United had multiple requests from

        Wilson’s counsel, a signed confirmation of representation, and an illegibly signed HIPAA

        authorization form that implicated whether HIPAA’s signature requirement had been

        satisfied. United’s limited fiduciary duty was solely to notify Wilson’s counsel about the

        illegible signature on the attached form. Doing so would not violate HIPAA because it

        would not have disclosed any individually identifiable health information, but would have

        fulfilled a limited fiduciary duty of United as the Plan administrator.

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                                                    ****

               In sum, United should have responded to the 2017 letters’ request for copies of

        materials to which Wilson was entitled under ERISA, but it failed to do so. Those letters

        requested copies of the “plan document” and “internal guidelines or regulations” governing

        the denial of claims, J.A. 2931, materials that the Plan obligated United to provide to

        Wilson or his authorized representative upon request and which did not require a valid

        HIPAA authorization form before disclosure. 11 In addition, United could not substantively

        comply with the request to provide copies of J.W.’s individually identifiable health

        information (i.e., the “medical documents, substantive documents,” and other responsive

        materials that fall within this definition). Id. Nonetheless, ERISA and the Plan obligated

        United to respond to the request by notifying Wilson’s counsel of the existence of the

        potentially defective HIPAA authorization form attached to the 2017 letters.

                      D. Appropriate Relief and the 2017 Letters’ Request for an Appeal

               Wilson contended on brief and at oral argument that it would be appropriate for the

        district court to review the denial of its claims directly because, in his view, the 2017 letters

        requested an appeal of the denial of claims arising during the Second DOS and modified

        Third DOS. When questioned on the matter of relief at oral argument, however, Wilson

        stated that he had no objection to the Court remanding for the plan administrator to

        undertake the full and fair review in the first instance.



               11
                 As discussed, it’s also possible that other “substantive documents” referred to in
        the 2017 letters, J.A. 2931, would have been responsive and also not subject to HIPAA
        protection, but that remains undeveloped in the record as it stands.
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               Having considered the parties’ arguments about how to proceed and our precedent,

        we conclude the best course is to remand for the plan administrator to undertake a full and

        fair review in the first instance. That is our usual course when a plan administrator fails to

        comply with ERISA’s procedural requirements. Gagliano, 547 F.3d at 240 (recognizing

        that in most instances, the appropriate remedy for an administrator’s procedural

        noncompliance “is to remand the matter to the plan administrator so that a ‘full and fair

        review’ can be accomplished”); accord Weaver v. Phoenix Home Life Mut. Ins. Co., 990

        F.2d 154, 159 (4th Cir. 1993). 12 Following this course is more consistent with ERISA’s

        structure, which contemplates a robust administrative process to resolve claims disputes

        and guarantees certain rights to Wilson that were denied to him. See Gagliano, 547 F.3d at

        235.

               As further support for this course, we have previously recognized that one purpose

        of the administrative “full and fair review” is to “make an administrative record for a court

        [to] review if that later occurs.” Id. Here, we do not have such a record because the ordinary

        administrative process was short-circuited and the parties were never able to develop their

        positions as to the denied claims. Consequently, remand will afford the parties the


               12
                  In light of our determination to remand as a result of United’s failure to produce
        materials relevant to Wilson’s preparations for an appeal, we need not determine whether
        the 2017 letters effectuated an appeal on their own. Nevertheless, we briefly note that the
        district court’s reason for finding the 2017 letters did not initiate an appeal was in error, as
        United conceded during oral argument. Contrary to the district court’s finding, the Plan
        does not allow claimants to seek an intermediary review known as a “Retrospective
        Review” from which a formal appeal lies. Instead, the Plan defines a “Retrospective
        Review” to be the specific type of utilization review—i.e., the type of initial benefits
        determination—that occurs after the services for which benefits are claimed have already
        been performed. Plan Document at 53–54, ECF No. 35-4.
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        “opportunity to make a meaningful administrative record” that the court could consider

        upon any future review. Id. To do so, the process should be reset to the time remaining on

        January 26, 2017, so that Wilson can provide a HIPAA-compliant authorization form

        attached to a new request for materials protected by HIPAA, receive those materials as well

        as the Plan and other materials discussed earlier that were not subject to HIPAA, and pursue

        a timely appeal. 13




               13
                   We recognize that ERISA’s times for response are essential for the timely
        processing of claims. Our decision to bypass the question of whether the January 26 letter
        initiated an appeal is bolstered by the fact that had United timely responded within 30 days
        to its request for materials, Wilson would still have had several weeks—and as to some
        claims, months—to provide a substantive response. Thus, even if the letters did not initiate
        an appeal, the process could have unfolded in a timely manner by the submission of
        additional materials requesting an appeal accompanied by additional support for that
        appeal.
                The denial of benefits for claims relating to the Second DOS explain why this is so.
        The 180-day clock for initiating a first-level appeal begins upon the Plan participant
        receiving notice of the denial of his claims for benefits. The EOB statements denying
        coverage for services provided July 16 to 31, 2016, and August 1 to 15, 2016, are dated
        October 10, 2016, and the statement denying coverage for services provided November 1
        to 30, 2016, is dated December 16, 2016. Wilson’s January 26, 2017, letter was sent 108
        and 41 days, respectively, after the earliest date on which he received notice of the denial
        of coverage, meaning that even if that letter did not initiate an appeal, he had 72 and 139
        more days in which to do so. United was required to respond to a request for copies of
        documents within 30 days of the request, meaning that had it done so, Wilson would still
        have had over one month to initiate an appeal as to the first two claims and over three
        months to initiate an appeal as to the third claim.
                Some of the earlier claims in the modified Third DOS may not have been timely if
        a request for an appeal was made on January 26, 2017. If so, then United can raise that as
        a new ground for denying a full and fair review on remand for those particular claims. But
        any claims that would have been timely as of January 26 should be treated the same as the
        claims for the Second DOS on remand—allowing Wilson to submit a new letter requesting
        an appeal and properly request materials to review as part of that process.
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                       E. Exhaustion of Claims United Denied after January 26, 2017

               As for the claims that United denied after January 26, 2017, Wilson has failed to

        show that he exhausted his administrative remedies or that the futility exception should

        apply. To demonstrate exhaustion and excuse, Wilson relied solely on United’s failure to

        respond to the 2017 letters. But since the 2017 letters did not apply to claims denied after

        January 26, nothing in the record would support a finding that Wilson exhausted his

        administrative remedies as to those claims. Nor has he shown futility because that requires

        a “clear and positive showing” that United would not follow the Plan’s procedures for

        reviewing those denied claims. Makar, 872 F.2d at 82 (internal quotation marks omitted).

        Accordingly, we hold that the district court properly dismissed Wilson’s claim arising from

        any requests for coverage that United denied after January 26, 2017.



                                              IV. Conclusion

               For the foregoing reasons, the judgment of the district court is affirmed in part and

        vacated in part, and the case is remanded for entry of an order to remand to United as plan

        administrator for a “full and fair review” of the claims submitted for the Second DOS and

        modified Third DOS.

                                                  AFFIRMED IN PART, VACATED IN PART,
                                                  AND REMANDED WITH INSTRUCTIONS




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