In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2624
B ARBARA B ECKER, personal
representative of the E STATE
OF E VELYN JERANEK , deceased,
Plaintiff-Appellant,
v.
C HRYSLER LLC H EALTH C ARE
B ENEFITS P LAN, an ERISA
collectively bargained single
employer welfare benefit plan,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:09-cv-00344-WCG—William C. Griesbach, Judge.
A RGUED D ECEMBER 2, 2011—D ECIDED A UGUST 20, 2012
Before
R IPPLE and R OVNER, Circuit Judges, and
F EINERMAN, District Judge.
The Honorable Gary S. Feinerman of the Northern District
of Illinois, sitting by designation.
2 No. 11-2624
R IPPLE, Circuit Judge. Before her death, Evelyn Jeranek
was a resident at the Nu-Roc Nursing Home (“Nu-Roc”)
for the better part of two years. Barbara Becker,
Ms. Jeranek’s daughter and the personal representative
of her estate, initiated this action in state court against
the Chrysler LLC Health Care Benefits Plan (the “Plan”)
after Humana, the Plan’s third-party administrator,
denied coverage for Ms. Jeranek’s stay at Nu-Roc.1 The
defendant removed the action to the United States
District Court for the Eastern District of Wisconsin, and,
in due course, the parties filed cross-motions for sum-
mary judgment. The district court determined that
Humana’s denial of coverage was not arbitrary and
capricious and accordingly granted summary judgment
for the Plan. Ms. Becker timely appealed.2 We agree
with the district court and therefore affirm its judgment.
I
BACKGROUND
A.
Ms. Jeranek, a beneficiary of the Plan by virtue of her
husband’s long-time employment at, and retirement
from, American Motors Corporation, was hospitalized on
November 12, 2006. Three days later, she was admitted
at Nu-Roc. She was eighty-eight years old and suffered
1
The district court’s jurisdiction is predicated on 28 U.S.C.
§ 1331 and 29 U.S.C. § 1132(e).
2
Our jurisdiction is predicated on 28 U.S.C. § 1291.
No. 11-2624 3
from a variety of maladies 3 that required her to use four-
teen prescription medications. A physician estimated at
the time of her admission that Ms. Jeranek had a life
expectancy of about one year. A note entered on her
medical record at the time recited: “Stay: long term[.
R]ehab potential is poor.” 4 Indeed, Ms. Becker stated
in a filing before the district court: “It is undisputed
Evelyn Jeranek did not need to be in a hospital[;] how-
ever she could no longer be cared for at home because
she could not ambulate. After eight years, Barbara Becker
no longer could take care of her mother at home.” 5
Ms. Jeranek was a resident at Nu-Roc for a total of
702 days. On several occasions during her time there,
Ms. Jeranek refused medical care for certain ailments.6
Similarly, less than a year after being admitted to Nu-Roc,
Ms. Jeranek declined her physician’s recommendation
3
Ms. Jeranek was afflicted by end-stage congestive heart
failure, type 2 diabetes, reflux, anxiety, neuropathy, an aortic
valve problem, syncope, hyperlipidemia, renal insufficiency
and a hormone issue.
4
A.R. at 2776.
5
R.46 at 11 (citations omitted).
6
A.R. at 2727 (noting that Ms. Jeranek declined her physician’s
recommendation for an enucleation of one eye on December 20,
2006); id. at 2722 (noting that Ms. Jeranek declined her physi-
cian’s recommendation for “scoping of the stomach and the
colon” on July 11, 2007); id. at 2721 (noting that Ms. Jeranek
declined her physician’s recommendation to see a derma-
tologist on August 29, 2007).
4 No. 11-2624
that she be hospitalized to evaluate and treat symptoms,
including swelling, that indicated a “significant change
in her cardiac status.” 7 Her medical records indicate
that her doctor understood Ms. Jeranek to be “on comfort
measures only” at least as of November 14, 2007. 8 In
her time at Nu-Roc, Ms. Jeranek received twenty-six
medical visits, sixty-three doctor’s change orders and
frequent attention from nursing staff.9 She died on
October 22, 2008.
7
Id. at 2733 (noting, in a medical record dated September 20,
2007, that Ms. Jeranek and Ms. Becker did not “want to pursue”
treatment, including hospitalization); see also id. at 2719 (stating,
in a medical record dated October 10, 2007, that both
Ms. Jeranek and her daughter “do not want any hospitalization,”
despite the physician’s advice that hospitalization “would be
the most effective thing to do” to treat her swelling).
8
Id. at 2718; see also id. at 2713 (noting, in a medical record
dated August 6, 2008, that Ms. Jeranek “has now been put on
comfort measures” and, “at this point, . . . we are just doing
comfort measures and prognosis is certainly poor”); id. at 2712
(noting, in a medical record dated September 3, 2008, that
Ms. Jeranek “is at a comfort only measure” and, “[a]gain, we
are trying to keep this woman comfortable”); id. at 2711
(similar notation on a September 17, 2008 medical record).
9
Ms. Jeranek’s list of medications remained substantially the
same throughout her stay at Nu-Roc. Id. at 2724 (noting, in a
medical record dated March 7, 2007, that Ms. Jeranek’s “medica-
tions are unchanged”); id. at 2715 (noting, in a medical record
dated May 7, 2008, that Ms. Jeranek’s “meds currently
are totally unchanged from what they had been all along”);
id. at 2714 (similar notation in a medical record dated July 9,
2008).
No. 11-2624 5
B.
From November 15, 2006, until November 19, 2006,
Ms. Jeranek’s stay at Nu-Roc was paid for by Medicare.
Humana originally authorized and paid a total of
$50,097.67 to Nu-Roc for services provided from
November 20, 2006, to September 30, 2007 (“Phase One”).
However, Humana later determined that its disburse-
ment to Nu-Roc had been a mistake. It characterized
Ms. Jeranek’s treatment at Nu-Roc as “custodial” care,
determined that such care was not covered by the Plan
and sought reimbursement for its previous payments.1 0
Humana also denied coverage for Ms. Jeranek’s stay at Nu-
Roc for the period between October 1, 2007, and
October 22, 2008 (“Phase Two”). During Phase Two, the
costs for Ms. Jeranek’s care totaled $64,669.74.
In early 2009, Ms. Becker administratively appealed
the denial of coverage for Ms. Jeranek’s Phase Two care.
Humana sent Ms. Jeranek’s medical file to Advanced
Medical Reviews for an independent review, which was
conducted by Dr. James Wood. After referring to
several resources, including the Milliman Care Guidelines,
Dr. Wood concluded that Ms. Jeranek had received only
custodial care at Nu-Roc during both Phase One and
Two. He found “no documentation that [Ms. Jeranek]
had needs that required skilled nursing care on any of
the dates between 11/20/06-10/23/08. . . . Care on all dates
10
Counsel for the Plan informed us that Humana is unsure
of who, if anyone, approved the initial payment to Nu-Roc,
noting that there is no documentation of the approval.
6 No. 11-2624
in question would be considered custodial in nature.” 1 1
Humana denied Ms. Becker’s appeal.
In October 2009, Ms. Becker appealed Humana’s deter-
mination that it should not have paid for Ms. Jeranek’s
Phase One care.12 Dr. Wood, this time working through
the Physician’s Review Network, again reviewed
Ms. Jeranek’s medical records and again referred to the
Milliman Care Guidelines and other sources. Dr. Wood
determined that “the services rendered to [Ms. Jeranek]
from 10/20/06[13 ] to 10/23/08 do not meet the Milliman
criteria for skilled nursing care and instead would be
considered custodial care and therefore not covered
under the terms of the [Summary Plan Description].” 1 4
Humana denied the appeal.
In February 2010, Ms. Becker appealed both of these
denials. Dr. Wood, working through the Physician’s
Review Network, again reviewed Ms. Jeranek’s medical
records. After consulting the Milliman Care Guidelines
11
Id. at 714.
12
The parties’ briefs disagree about whether this appeal was
relevant to Phase One or to Phase Two. Ms. Becker’s brief
states that the appeal related to Phase Two, Appellant’s Br. 9,
while the Plan states that it related to Phase One, Appellee’s
Br. 11. Although the appeal itself does not use the
terminology we have adopted, it is limited clearly to Phase
One. A.R. at 863-64.
13
This appears to be a typographical error on the physician’s
report, as the relevant period begins November 20, 2006,
rather than October 20, 2006.
14
A.R. at 1583 (italicization added).
No. 11-2624 7
and another resource, Dr. Wood concluded that “the
services rendered to [Ms. Jeranek from] 10/20/06[ 1 5 ] to
10/23/08 do not meet the Milliman criteria for skilled
nursing care. . . . The documentation indicates that
[Ms. Jeranek’s] care is largely custodial in nature and
that her needs could be met safely and effectively in a
custodial care facility.” 1 6
In April 2010, Ms. Becker submitted additional docu-
mentation and requested another review. Two physicians
working through Advanced Medical Reviews, Dr. Alan
Menkes and Dr. John Zarcone, reviewed Ms. Jeranek’s
medical records. After referring to the Milliman Care
Guidelines, Drs. Menkes and Zarcone determined that
Ms. Jeranek “had a chronic, stable condition not
requiring skilled nursing.” 1 7 Humana ultimately denied
Ms. Becker’s appeal, noting that the reviewing physicians
found that:
[n]one of the skilled nursing services outlined
in the plan document ([i.e.,] IV or IM injections,
TPN, enteral feeds, nasopharyngeal and tracheot-
omy aspiration, insertion and irrigation with
replacement of suprapub[]ic catheters, colostomy
care, treatment of Stage III or worse decubitis
ulcers[], initial phase of bronchodilator therapy)
15
As before, this appears to be a typographical error.
16
Id. at 2822-23 (italicization added).
17
Id. at 3587-88.
8 No. 11-2624
were provided on any of the dates in question.[1 8 ]
In June 2010, Ms. Becker requested reconsideration of
the denial of her February appeal. Dr. James Regan,
working through AllMed, reviewed the relevant records
and concluded that “[t]he care is domiciliary or custodial
under the language of the plan.” 1 9 Further, Dr. Regan
noted:
Because of the inexorable progression of her dis-
ease, [Ms. Jeranek] was no longer capable of man-
aging herself in the home setting, but the nature of
her care, predicated upon comfort measures, did
not require the [skilled nursing facility] level of
care. The patient’s care was largely palliative in
nature, and such care is common in the long-term
care environment . . . . The long-term care setting
would have been appropriate and safe for this
patient, and she did not require the [skilled nurs-
ing facility] level of service.[ 2 0 ]
Humana denied the request for reconsideration.
18
Id. at 3600 (internal quotation marks omitted). These examples
are not enumerated in the Plan itself, but, as Ms. Becker pointed
out in the district court, they are listed in the Milliman Care
Guidelines. R.45 at 24.
19
A.R. at 4770. Notably, Dr. Regan is the only doctor who
reviewed Ms. Jeranek’s medical records without consulting
the Milliman Care Guidelines. He referred instead to a Palliative
Care publication by the Institute for Clinical Systems Improve-
ment. Id. at 4771.
20
Id. at 4771.
No. 11-2624 9
In August 2010, Ms. Becker requested a second recon-
sideration of the earlier denial. Humana denied the
request without ordering another independent physician
review of Ms. Jeranek’s medical records.
After her administrative appeals and requests for
reconsideration were unsuccessful, Ms. Becker initiated
this litigation by filing a complaint in state court. The
Plan removed the case to the district court.
C.
In an amended complaint filed in the district court,
Ms. Becker challenged Humana’s determination that
Ms. Jeranek’s care at Nu-Roc was not covered by the
Plan.21 The defendant filed an answer denying liability. In
due course, both Ms. Becker and the Plan filed motions
21
Specifically, Ms. Becker presented six claims: (1) Coverage
was mandated by a collective bargaining agreement, which
governs the Plan and the Summary Plan Description (the
“SPD”); (2) the SPD did not conform to the Plan because it did
not discuss long-term illness benefits, violating 29 U.S.C.
§ 1022(a)(1); (3) Humana’s definition of “definitive” in the
phrase “definitive skilled nursing care” was illusory and
improper; (4) Ms. Jeranek suffered from a specific condition,
cardio-circulatory disease, that required skilled nursing care,
therefore Humana’s conclusion that she received only custodial
or domiciliary care was erroneous; (5) Humana administered
Ms. Jeranek’s claims in an arbitrary and capricious fashion;
and (6) Humana should not have denied Ms. Jeranek’s claim
for benefits. R.25 at 13-25.
10 No. 11-2624
for summary judgment. Although the motions raised a
variety of issues and allegations,2 2 the district court
sifted through the contentions and determined that the
parties’ dispute was “whether the type of care [Ms.] Jeranek
received was covered by the Plan.” 2 3 The defendant
contended that Ms. Jeranek received only uncovered
custodial care, while Ms. Becker asserted that, “[s]ince
prolonging Evelyn Jeranek’s life constituted a medical
necessity[,] the burden of proof shifted to the Plan to
prove” both that the custodial care exception applied
22
For example, in support of her motion for summary judg-
ment, Ms. Becker made the following arguments, restated and
summarized here: (1) Because the SPD is silent on the issue
of terminal illness benefits, Humana erred by relying on the
SPD to define the limits of those benefits; (2) Humana erred
by not using the common and ordinary definitions of “continu-
ing” and “skilled nursing services”; (3) Nu-Roc is a “skilled
nursing facility” for purposes of the Plan; (4) Ms. Jeranek
received continuing skilled nursing services at Nu-Roc, and
Humana’s reliance on the Milliman Care Guidelines to deter-
mine otherwise was unreasonable; (5) Ms. Jeranek received
“definitive” nursing care as evidenced by her living beyond
her estimated life expectancy; (6) Humana should not have
denied Ms. Jeranek’s claim because there was no stand-alone
domiciliary or custodial care exception in the “skilled nursing
care” section of the Plan; (7) Ms. Jeranek would have suffered
transfer trauma if she had been moved from Nu-Roc to the
closest custodial facility, which was over 100 miles away; and
(8) Humana’s denial of coverage was improper because
Ms. Jeranek was terminally ill. R.40 at 3-31.
23
R.49 at 1 (emphasis in original).
No. 11-2624 11
and that the care Ms. Jeranek received at Nu-Roc was
not covered.24
The district court concluded that Humana reasonably
had interpreted the Plan and that the record fully sup-
ported a finding that Ms. Jeranek received only
uncovered custodial or domiciliary care at Nu-Roc.2 5
Accordingly, the district court denied Ms. Becker’s
motion for summary judgment and granted summary
judgment in favor of the Plan.
Ms. Becker timely appealed.
II
DISCUSSION
A.
We review a district court’s grant of summary judgment
de novo. Int’l Union, United Auto., Aerospace & Agric.
Implement Workers of Am. v. ZF Boge Elastmetall LLC, 649
F.3d 641, 646 (7th Cir. 2011). Because Humana, as the
administrator of the Plan, was vested with discretionary
authority to interpret the Plan’s provisions and to deter-
mine eligibility for and entitlement to Plan benefits,2 6
“we will only look to ensure that [Humana’s] decision
24
R.40 at 23.
25
The district court also addressed directly Ms. Becker’s other
arguments, but concluded that they were meritless or extrane-
ous. R.49 at 9-13.
26
See A.R. at 5079.
12 No. 11-2624
‘has rational support in the record.’ ” Speciale v. Blue Cross
& Blue Shield Ass’n, 538 F.3d 615, 621 (7th Cir. 2008) (quot-
ing Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569,
576 (7th Cir. 2006)). We shall
uphold the plan’s decision as long as (1) it is
possible to offer a reasoned explanation, based on
the evidence, for a particular outcome, (2) the
decision is based on a reasonable explanation of
relevant plan documents, or (3) the administrator
has based its decision on a consideration of the
relevant factors that encompass the important
aspects of the problem.
Id. (internal quotation marks omitted). This standard is
a deferential one; we shall “overturn the administrator’s
decision only where there is an absence of reasoning to
support it.” Jackman Fin. Corp. v. Humana Ins. Co., 641 F.3d
860, 864 (7th Cir. 2011).
B.
After studying the briefs, examining the record and
hearing from the parties at oral argument, it is clear to us
that the district court identified astutely the nub of the
dispute in this litigation: The parties are essentially at odds
as to whether the Plan covers the type of care that
Ms. Jeranek received at Nu-Roc.2 7
27
As she did before the district court, Ms. Becker raises a long
list of issues, most of which we can resolve without significant
discussion.
(continued...)
No. 11-2624 13
(...continued)
Ms. Becker asserts that Humana arbitrarily and capriciously
failed to designate, in advance, a length of stay for Ms. Jeranek
at Nu-Roc as required by the collective bargaining agreement
that, according to Ms. Becker, governs the Plan. We decline to
address this claim, which Ms. Becker forfeited by failing to
raise it before the district court. See A. Bauer Mech., Inc. v.
Joint Arbitration Bd. of the Plumbing Contractors’ Ass’n, 562 F.3d
784, 792 (7th Cir. 2009).
Ms. Becker also asserts that the Plan violated ERISA when
Humana failed to provide certain information in an Explana-
tion of Benefits form that it mailed to Nu-Roc. This issue, too,
was not raised before the district court and therefore is for-
feited. We add that the provision upon which Ms. Becker relies,
29 C.F.R. § 2560.503-1(g), requires that information be provided
to claimants, not service providers, and that Ms. Becker has not
alleged that Humana failed to provide the information to her or
to Ms. Jeranek.
Ms. Becker further claims that Humana erred by using the
SPD to interpret the terminal illness coverage under the
Plan because, she asserts, the SPD was silent as to that benefit.
This is factually inaccurate; the SPD describes the limits of
coverage, including the exclusion of primarily custodial or
domiciliary care to end-of-life patients. See A.R. at 6961-62 (SPD
24-25). Even if Ms. Becker had described accurately the SPD, her
argument would be unavailing. We have held that an SPD’s
silence cannot be substituted for the terms of the underlying
plan document. Mers v. Marriott Int’l Group Accidental Death &
Dismemberment Plan, 144 F.3d 1014, 1023 (7th Cir. 1998).
Ms. Becker dedicates a significant amount of space in her
brief to the assertion that Nu-Roc is a “skilled nursing facility”
(continued...)
14 No. 11-2624
In addressing this question, we begin, as we must, with
the plain language of the Plan. See Swaback v. Am. Info.
Techs. Corp., 103 F.3d 535, 540-41 (7th Cir. 1996). Specifi-
cally, the Plan states, in relevant part:
A plan of treatment which does not require such
skilled nursing services and is designed solely to
assist the patient with the simple activities of
daily living, or to provide the protection of an
institutional environment as a convenience to the
(...continued)
as that term is defined in the Plan. The Plan concedes the
point, but notes that Nu-Roc’s designation is not at issue in
this litigation. We agree.
Ms. Becker asserts that Humana failed to turn over docu-
ments relating to its initial approval of coverage for
Ms. Jeranek’s Phase One care at Nu-Roc. This, too, is an argu-
ment that went unraised before the district court and there-
fore is forfeited. We note that the Plan maintains, as it did at
oral argument, that its initial approval was an error that it
cannot explain, averring that it has provided Ms. Becker
with “every document in its possession and every document
considered in the claim and review process.” Appellee’s Br. 47.
Relying only on what she describes as Humana’s initial
approval of Ms. Jeranek’s Phase One care, Ms. Becker asserts
that Humana arbitrarily and capriciously changed its inter-
pretation of Plan coverage in such a way as to deny coverage for
Ms. Jeranek’s Phase Two care and to deny retroactively
coverage for her Phase One care. We do not believe that
Ms. Becker has presented sufficient evidence of her claim that
Humana changed its interpretation at any point.
No. 11-2624 15
patient, does not constitute a basis for covered
benefits.[ 28 ]
It also states:
Covered benefits for a terminally ill enrollee
whose condition becomes primarily custodial or
domiciliary in nature, and the medical condition no
longer requires continuing skilled nursing ser-
vice[,] will not be payable.[2 9 ]
The Plan further states:
Covered benefits will not be payable for the fol-
lowing ineligible convalescent or long-term illness
care:
! Enrollees who have reached the maxi-
mum level of recovery possible for
their particular condition and who no
longer require definitive treatment
other than routine supportive care;
! Enrollees whose care is primary domi-
ciliary or custodial in nature. Domicili-
ary or custodial care is the provision of
room and board, with or without rou-
tine supportive care and training and
supervision in personal hygiene and
other forms of self-care, to an enrollee
who does not require definitive medical
or skilled nursing services;
28
A.R. at 6122 (Plan Manual 2.89) (emphasis added).
29
Id. at 6123 (Plan Manual 2.90) (emphasis added).
16 No. 11-2624
! Terminal care of enrolles whose condi-
tion no longer requires definitive profes-
sional skilled nursing services; . . . .[3 0 ]
Further, the Plan states:
If and when an enrollee requires only boarding
and physical maintenance care, and not definitive
medical or skilled nursing care service, the enrollee
will cease to be eligible for payment of covered
benefits.[ 31 ]
The Plan language makes clear that care is not covered
unless skilled nursing services are provided.3 2 Faced with
this text, Ms. Becker challenges Humana’s determination
that her mother did not receive skilled nursing care.
Ms. Becker focuses on both the type of care and the fre-
quency of care to make her case. Accordingly, we
address each issue in turn.
1.
We first address whether it was arbitrary and capricious
for Humana to conclude that the type of care that
Ms. Jeranek received at Nu-Roc did not constitute skilled
30
Id. at 6124 (Plan Manual 2.91) (emphasis added).
31
Id. at 6126 (Plan Manual 2.93) (emphasis added).
32
We address separately the question whether primarily
custodial care is covered if some skilled nursing services
are provided.
No. 11-2624 17
nursing services. The Plan defines “skilled nursing ser-
vices” as:
those which must be furnished by or under the
direct supervision of professionally trained and
licensed nursing personnel (under the general
direction of the physician) to achieve the med-
ically desired result, and to ensure the safety of
the patient. A skilled nursing service requires
specialized (professional) training; or observation
and assessment of the medical needs of the
patient; or supervision of a medical treatment plan
involving multiple services where specialized
health care knowledge must be applied in order
to attain the desired medical results.[3 3 ]
Ms. Becker submits that Ms. Jeranek received skilled
nursing services while at Nu-Roc. The Plan disputes
this characterization and points to the independent physi-
cian reviews, each of which determined that Ms. Jeranek
neither required nor received skilled nursing services.
In the first independent medical review performed in
this case, Dr. Wood noted that Nu-Roc provided “oral
medications, sliding scale insulin with accuchecks, in-
termittent blood draws, minor skin care, and intermittent
[physical therapy].” 3 4 His conclusion was that none of
the care Ms. Jeranek received was skilled nursing service
as that term is used in the Plan. Dr. Wood reached
the same conclusions in his next review of Ms. Jeranek’s
33
Id. at 6122 (Plan Manual 2.89).
34
Id. at 714.
18 No. 11-2624
medical records. He noted that Ms. Jeranek received
“oral medications, sliding scale insulin, assistance with
activities of daily living and continued monitoring in the
setting of clinical stability,” but again determined that
these services simply did not constitute skilled nursing
services.35 He came to substantially the same conclusion
the third time he reviewed Ms. Jeranek’s medical records.3 6
Similarly, Drs. Menkes and Zarcone concluded that
Ms. Jeranek “had a chronic, stable condition not re-
quiring skilled nursing [care].” 3 7
35
Id. at 1583.
36
Id. at 2822.
37
Id. at 3587. Drs. Wood, Menkes and Zarcone relied in part on
the Milliman Care Guidelines, which the Plan asserts—and
Ms. Becker does not deny—is a nationally recognized clinical
decision support tool. The physicians’ conclusions appear
consistent with the Guidelines, which define skilled services as
those that are “so inherently complex that [they] can be safely
and effectively performed only by, or under the supervision of,
professional or technical personnel,” including:
! Acute rehabilitation services, including ALL of the
following:
" Rehabilitation is primary reason for admis-
sion[]
....
" Patient can benefit from and tolerate at least
3 hours of rehabilitation services, typically a
combination of modalities, at least 5 days a
week[]
(continued...)
No. 11-2624 19
(...continued)
....
! Subacute or skilled facility rehabilitation services
(PT, OT, and SLP), including 1 or more of the
following:
" Rehabilitation services for patient who is
too ill to participate in physical or cogni-
tive therapy for 3 hours daily[]
" Supportive care with low-intensity ser-
vices; may be eligible later for acute
rehabilitation
" Therapy services delivered under super-
vision of licensed therapist at least 5
days weekly for minimum weekly total
of 150 minutes
" Nursing rehabilitation services at least 6
days weekly in at least 2 activities, AND
services delivered under supervision of
licensed therapist at least 3 days weekly
for minimum weekly total of 45 minutes
! Parenteral nutrition: any nutritional infusion
through central (TPN) or peripheral (PPN) port
! IV, epidural, or intrathecal medication . . .
! Respiratory care that includes 1 or more of the
following:
" Ventilator care
" Tracheostomy care
" Nasopharyngeal or tracheal suctioning
(continued...)
20 No. 11-2624
Dr. Regan, who conducted the last medical review,
noted that Ms. Jeranek’s primary physician had indicated
that, as of November 14, 2007, Ms. Jeranek was “ ‘on
comfort measures only.’ ” 3 8 After reviewing the Phase One
and Phase Two records, Dr. Regan noted that “there were
(...continued)
" Respiratory therapy (. . . provided 7
days weekly for at least 15 minutes
daily[])
" Oxygen therapy[]
! Radiation therapy
! Chemotherapy
! Dialysis . . .
! Transfusions of blood or blood products
! Treatment for pressure or stasis ulcers
" At least one ulcer at stage III or stage IV
" 2 ulcers at any stage
! Surgical wound care
! Treatment for open lesions other than ulcers,
rashes, or cuts ([e.g.], cancer lesions)
! Treatment for foot infection or open lesions
! Burn care
! Tube feeding . . .
Id. at 7188-89 (emphasis in original) (endnotes omitted) (internal
quotation marks omitted).
38
Id. at 4770.
No. 11-2624 21
no significant changes other than an occasional oral
antibiotic or a change in the furosemide[ 3 9 ] dosing. . . .
There [were] never any significant departures from her
original plan of care or orders.” 4 0 Although there was “an
involved medication list, . . . this was largely the same
list [Ms. Jeranek] was adhering to in the outpatient set-
ting.” 41 Further, Dr. Regan noted that “[t]here was
no direction to the care other than maintaining
[Ms. Jeranek] at a level of performance, which would
translate to allowing for a maximal level of day-to-day
comfort.” 4 2 Therefore, Dr. Regan concluded that
Ms. Jeranek did not receive and “did not require
the [skilled nursing facility] level of service.” 4 3
Ms. Becker does not dispute, as a factual matter, the
care and services that her mother received at Nu-Roc;
she contends, however, that at least some of that care
should have been characterized as skilled nursing ser-
vices. Most of her submission is devoid of reference
to any medical authority or of any factual detail that
might call into question Humana’s determination and
39
Furosemide is a “water pill” used to reduce swelling and fluid
retention. See National Institutes of Health, Furosemide,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a682858.
html (last updated Sept. 1, 2010).
40
A.R. at 4770.
41
Id. at 4771.
42
Id.
43
Id.
22 No. 11-2624
the physicians with whom it consulted. The single ex-
ception is her reliance on an assessment offered by
Ms. Jeranek’s attending physician, Dr. Rebecca Perry,
whom Ms. Becker refers to as her medical expert. In a
letter written on December 23, 2008—about two
months after Ms. Jeranek died—Dr. Perry wrote that
Ms. Jeranek “was a very complex patient and main-
tenance of her skin integrity, her cardiac function, her
diabetic control (which included medications, diet
and activities), her general mobility and pain control
from her severe eye discomfort without question
required the care of skilled nursing personnel.” 4 4 , 4 5
As a threshold matter, we note that, under the Plan,
provision of “care by skilled nursing personnel” is not
the equivalent of the provision of “skilled nursing ser-
vices.” Ms. Becker has pointed to no language in the
Plan that suggests that the mere presence of “skilled
nursing personnel” equates with the provision of
“skilled nursing services,” and the Summary Plan De-
scription suggests otherwise.4 6 Coverage under the Plan
44
Id. at 297.
45
Before the district court, Ms. Becker identified entries in
Ms. Jeranek’s medical records that she presented as skilled
nursing services. See R.40 at 8-9. She has made no such asser-
tion on appeal, and thus we deem this factual argument aban-
doned.
46
See A.R. at 6961-62 (SPD 25) (noting, in a section titled
“Benefits For Treatment At A Skilled Nursing Facility,” that
(continued...)
No. 11-2624 23
depends entirely on the type of care received, not the
qualifications of the nursing staff providing that care.
Even if we assume that Ms. Becker’s medical expert
employed the phrase “the care of skilled nursing person-
nel” to mean the provision of “skilled nursing ser-
vices,” we would be faced with, at best, “a contest of
competing medical opinions.” Black v. Long Term
Disability Ins., 582 F.3d 738, 745 (7th Cir. 2009). In such
cases, the deferential standard of review requires that
we accept “[the administrator’s] choice between com-
peting medical opinions so long as it is rationally sup-
ported by record evidence.” Id. Here, there is ample
evidence to support the conclusion that Ms. Jeranek’s
care at Nu-Roc did not involve the provision of care
that had to “be furnished by or under the direct super-
vision of professionally trained and licensed nursing
personnel,” services that “require[d] specialized (profes-
sional) training,” “observation and assessment” of a
patient’s medical needs or “supervision of a medical
treatment plan involving multiple services where special-
ized health care knowledge must be applied in order
to attain the desired medical results.” 4 7 There was more
than an adequate basis for the Plan’s conclusion that
the care provided was entirely custodial and domiciliary
in nature.
46
(...continued)
“[m]any patients at skilled nursing facilities receive custodial
care, for which the Plan does not provide benefits”).
47
See id. at 6122 (Plan Manual 2.89).
24 No. 11-2624
Ms. Jeranek was provided with a level of care that
maintained her quality of life as much as possible,
given her inexorably deteriorating condition. The
quality of that care, at the hands of skilled health care
providers, no doubt had a salutary impact on her life
during that difficult period. However, the evidence of
record permitted the reasonable conclusion that such
care did not include the level of medical services that the
Plan defines as skilled nursing services. Therefore,
Humana’s determination that Ms. Jeranek did not
receive skilled nursing services, supported by the
opinions of three different independent physicians who
conducted a total of five reviews, was not arbitrary
and capricious.48
48
Our conclusion is limited to the question whether
Ms. Jeranek’s care constituted skilled nursing services as that
term is defined under the Plan. By holding that it did not, we
in no way intend to suggest that Ms. Jeranek received less-than-
exemplary care while at Nu-Roc. Dr. Regan concluded,
and neither party disputes, that Ms. Jeranek received “excep-
tional” care at the facility. Id. at 4771.
Additionally, we note that the mere existence of any
number of independent physician reviews does not insulate
an administrator from liability for arbitrary and capricious
decisions. Our conclusion in this case is limited to the facts
before us, with the physicians’ reviews being one of several
relevant factors.
No. 11-2624 25
2.
Ms. Becker also submits that the receipt of skilled
nursing services is evidenced by Ms. Jeranek’s continuing
medical care during her stay at Nu-Roc. In essence,
Ms. Becker contends that, if Ms. Jeranek received suffi-
ciently frequent medical care at Nu-Roc, then that care
should be considered skilled nursing services.
Central to this question is a provision of the Plan
that states:
The admitting physician, or a licensed physician
designated by the admitting physician, must
assume responsibility for the management of the
enrollee’s continuing medical care, including
visits to the enrollee at such intervals as the con-
dition may require, but at a minimum frequency of
at least once every two weeks. Less frequent visits will
be regarded as evidence that the enrollee no longer
requires the type of skilled nursing care covered by the
program unless specific orders and progress notes
indicate otherwise.[4 9 ]
The Plan contends that the quoted language predicates
coverage on actual doctor’s visits rather than on the
average frequency of doctor’s visits. Ms. Becker concedes
that Ms. Jeranek did not receive biweekly physician
visits; nevertheless, she contends that the specific orders
and progress notes in Ms. Jeranek’s medical records
substantiate that she received continuing medical care of
49
Id. at 6125-26 (Plan Manual 2.92-93) (emphasis added).
26 No. 11-2624
a nature to be the equivalent of the receipt of skilled
nursing services. Ms. Becker does not invite our atten-
tion to any specific change orders or progress notes.
Instead, she points to the total of sixty-three change
orders and asserts that every “two change orders for a
complex patient [are] worth one in[-]person doctor’s visit
each fourteen days.” 5 0 “Humana cannot disavow [this]
conversion factor,” Ms. Becker claims, because it can be
found in the Milliman Care Guidelines.5 1 Ms. Becker cal-
culates that Ms. Jeranek received twenty-six actual physi-
cian visits, and—based on her sixty-three change or-
ders—an additional thirty-one physician-visit equivalents.
This equivalency computation, asserts Ms. Becker, aver-
ages out to more than one physician visit for each of
the fifty fourteen-day periods during Ms. Jeranek’s stay
at Nu-Roc. Ms. Becker contends that this satisfied the
Plan’s coverage requirements.
As a threshold matter, the parties disagree about
whether the Plan predicates coverage on a rate of one
actual doctor’s visit within each fourteen-day period or on
an average of one doctor’s visit per fourteen day period.
The Plan language “is sufficiently ambiguous that its
meaning cannot be ascertained from its plain language
or from the structure of the document.” Frye v. Thompson
Steel Co., 657 F.3d 488, 495 (7th Cir. 2011). Although
our interpretation of plan language is governed by
federal common law, id. at 493, the common law rule of
50
Appellant’s Br. 37.
51
Id.
No. 11-2624 27
contra proferentem—that ambiguities in a contract are to
be construed against the drafter—does not apply in
the ERISA context when the plan authorizes a plan ad-
ministrator to interpret its terms. See Marrs v. Motorola,
Inc., 577 F.3d 783, 787 (7th Cir. 2009). Rather, in cases
such as the one before us, “[r]esolving how the terms
relate to one another calls for a detailed interpretative
process, and ERISA permits that process to be entrusted
to” Humana as the Plan administrator. Frye, 657 F.3d
at 495. Humana’s “ ‘use of interpretive tools to disam-
biguate ambiguous language is . . . entitled to deferential
consideration by a reviewing court.’ ” Id. at 493 (alteration
in original) (quoting Marrs, 577 F.3d at 786). For
her argument to prevail, Ms. Becker must demonstrate
that the Plan’s interpretation had no “rational support
in the record.” Davis, 444 F.3d at 576 (internal quotation
marks omitted). She has not met that burden.
Even accepting, for the sake of argument, that the
Plan document contemplates an average number of doc-
tor’s visits, Humana certainly was not required to accept
Ms. Becker’s proposed conversion rate for the purpose
of determining whether Ms. Jeranek received skilled
nursing services. The specific provision of the Milliman
Care Guidelines upon which Ms. Becker relies is in a
portion of the text that provides instruction to medical
professionals regarding the determination of “Recovery
Facility Level of Care.” 5 2 That determination requires
both the “[a]bsence of acute hospital care needs” and
52
A.R. at 7187-89.
28 No. 11-2624
one of a long list of circumstances that require
inpatient treatment.5 3 Included on that list is “[m]onitoring
and treatment for” one or more of several conditions.5 4
Those conditions include, among other things, “[c]linically
complex situations requiring 1 or more of the following:
At least one physician visit and 4 physician order
changes every 14 days [or a]t least 2 physician visits and
2 order changes every 14 days.” 5 5
Ms. Becker takes the particular provision dealing
with physician visits and change orders out of context.
Contrary to what Ms. Becker suggests, that provision
does not define “[c]linically complex situations.” 5 6
Nor does it refer to the provision of skilled nursing ser-
vices. Instead, it states that monitoring for two types
of clinically complex situations—those requiring one
physician visit and four change orders every fourteen
days and those requiring two physician visits and
two change orders every fourteen days—may satisfy an
inpatient treatment requirement necessary for deter-
mining that admission to a recovery facility is appropri-
ate. Read in context, it is clear that the Milliman Care
Guidelines do not support the conversion rate that
Ms. Becker urges us to accept.
Notably, a separate item on the list of circumstances
that require inpatient treatment—the one immediately
53
Id. at 7188-89.
54
Id. at 7189.
55
Id. (emphasis in original).
56
Id.
No. 11-2624 29
above the “[m]onitoring and treatment” provision—is the
need for “skilled services so inherently complex that [they]
can be safely and effectively performed only by, or
under the supervision of, professional or technical per-
sonnel.” 57 This resembles closely the Plan’s definition of
“skilled nursing services” as “those which must be fur-
nished by or under the direct supervision of professionally
trained and licensed nursing personnel (under the
general direction of the physician) to achieve the medically
desired result, and to ensure the safety of the patient.” 5 8
The Milliman Care Guidelines provides a list of services
that it considers “skilled services.” 5 9 Tellingly, Ms. Becker
has not invited our attention to anything in the record
that suggests that Ms. Jeranek received any of the
services listed in this provision of the Guidelines.
Aside from her proposed conversion rate and her ex-
pert’s view that Ms. Jeranek was a very complex patient,
Ms. Becker does not offer any other argument or evidence
to support the view that Ms. Jeranek’s orders or
progress notes indicate continuing skilled medical care.6 0
Therefore, we must conclude that the frequency of
57
Id. at 7188-89 (internal quotation marks omitted).
58
Id. at 6122 (Plan Manual 2.89).
59
See supra n.37.
60
Ms. Becker submits that the fact that Ms. Jeranek survived
past her life expectancy demonstrates that her care was medi-
cally necessary, or “definitive.” However, as the Plan properly
points out, “the determining factor is not how long [Ms. Jeranek]
lived . . ., but rather what care was actually provided to her.”
See Appellee’s Br. 46.
30 No. 11-2624
Ms. Jeranek’s care at Nu-Roc does not support the con-
tention that she received skilled nursing care. To the
contrary, under the plain terms of the Plan, the relative
infrequency of medical visits and the lack of specific
orders and progress notes suggest that Ms. Jeranek did
not “require[] the type of skilled nursing care covered by
the program.” 61 Under these facts, it was not arbitrary
and capricious for Humana to deny her coverage.
We further agree with the administrator that, even if
Ms. Jeranek received some skilled nursing care at Nu-Roc,
the decision to deny her coverage was not arbitrary
and capricious. The Plan would be entitled to conclude
that Ms. Jeranek would not be eligible for benefits
because her care was primarily custodial, and that, to be
payable, “skilled nursing care must constitute definitive
treatment . . . and the overall care provided must not be
primarily custodial.” 6 2 Ms. Becker contends, however,
that “[b]enefits are payable when there is sufficient
skilled care and medical involvement even if overall care
is ‘primarily custodial[.’]” 6 3 In short, the Plan interprets
the provision of “primarily custodial care” and the provi-
sion of “skilled nursing services” to be mutually exclusive;
Ms. Becker interprets these terms so that both may apply.
Here, the language of the Plan itself provides some
support for both interpretations. Supporting Ms. Becker’s
61
A.R. at 6125-26 (Plan Manual 2.92-93).
62
Appellee’s Br. 34 (emphasis added).
63
Appellant’s Br. 28 (emphasis added).
No. 11-2624 31
position, for example, is a portion of the Plan dealing
with coverage administration, which states, in relevant
part: “If and when an enrollee requires only boarding
and physical maintenance care, and not definitive
medical or skilled nursing care service, the enrollee will
cease to be eligible for payment of covered benefits.” 6 4
Other provisions may be interpreted to provide addi-
tional support. For example, in its description of coverage
for Skilled Nursing Facility Benefits, the Plan states
that care is not covered when it “does not require . . .
skilled nursing services and is designed solely to assist
the patient with the simple activities of daily living.” 6 5
The negative implication of this passage might be that
the Plan does cover care that, although designed solely
to assist the patient with daily living activities, requires
skilled nursing services.
Supporting the Plan’s interpretation is a provision in
the Plan titled “Ineligible Medical Conditions,” which
states that services for “[e]nrollees whose care is
primar[il]y domiciliary or custodial in nature” are not
covered.66 In the same paragraph, the Plan defines “domi-
ciliary or custodial care” as “the provision of room and
board, with or without routine supportive care and
training and supervision in personal hygiene and other
forms of self-care, to an enrollee who does not require
64
A.R. at 6126 (Plan Manual 2.93) (emphasis added).
65
Id. at 6122 (Plan Manual 2.89) (emphasis added).
66
Id. at 6124 (Plan Manual 2.91).
32 No. 11-2624
definitive medical or skilled nursing services.” 6 7 Thus,
the Plan may be read to suggest that enrollees whose
care primarily requires less than skilled nursing services
are not eligible for coverage, even if they receive some
skilled nursing services. This interpretation is bolstered
by language from the Summary Plan Description,
which reads, in relevant part: “Benefits will not be pro-
vided for . . . [c]are determined to be primarily custodial
or domiciliary in nature (care designed to assist an indi-
vidual in the activities of daily living).” 6 8 Additionally,
the Summary Plan Description contains the following
note: “Many patients at skilled nursing facilities receive
custodial care, for which the Plan does not provide bene-
fits. Custodial care may be thought of as care designed
to assist an individual in the activities of daily living.” 6 9
The Plan language “is sufficiently ambiguous that its
meaning cannot be ascertained from its plain language
or from the structure of the document.” Frye, 657 F.3d
at 495. As we already have discussed, “[r]esolving how
the terms relate to one another calls for a detailed inter-
pretative process, and ERISA permits that process to
be entrusted to” Humana, the Plan administrator. Id.
Humana has the authority to “disambiguate ambiguous
language” in the Plan. Id. at 493 (internal quotation
marks omitted). Its interpretation of such language is
“entitled to deferential consideration by a reviewing
67
Id.
68
Id. at 6962 (SPD 25).
69
Id.
No. 11-2624 33
court.” Id. (internal quotation marks omitted). Here, as
before, Ms. Becker has not met her burden of demon-
strating that there was no “rational support in the re-
cord” for the Plan’s interpretation. Davis, 444 F.3d at
576 (internal quotation marks omitted). Although
Ms. Becker’s interpretation may be reasonable insofar as it
has some support in the record, we cannot say that the
Plan’s interpretation, which has at least as much
support, is unreasonable given our deferential standard
of review. See Marrs, 577 F.3d at 789 (“[A] decision that
is ‘reasonable’ rather than clearly correct is a decision
that might just as well have gone the other way[] . . . .”).
Conclusion
We conclude that the Plan’s decision to deny coverage
for Ms. Jeranek’s care at Nu-Roc because she did not
receive skilled nursing services was not arbitrary and
capricious. Therefore, we affirm the judgment of the
district court.
A FFIRMED
8-20-12