Bergeron v. HMO Louisiana, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ANDRE BERGERON CIVIL ACTION

VERSUS CASE NO. 20-1450

HMO LOUISIANA, INC. SECTION: “G”(3)

ORDER AND REASONS

Plaintiff Andre Bergeron (“Plaintiff”) brings this action for review of the denial of health

benefits under an employee welfare benefit plan governed by the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”).1 Defendant HMO Louisiana, Inc.

(“Defendant”) opposes Plaintiff’s request for review.2 Having considered the briefs, the

memoranda, the arguments made at oral argument, the record, and the applicable law, the Court

affirms the denial of benefits and dismisses Plaintiff’s claims with prejudice. The Court declines

to award attorney’s fees or costs to either party.

I. Background

A. The Plan

Plaintiff Andre Bergeron was covered under an employee health benefit plan (the “Plan”)

with Defendant.3 The Plan, a straight HMO plan, “generally pays Benefits only when services are

1 Rec. Doc. 28.

2 Rec. Doc. 36.

3 AR 1–112.

1

obtained from a Provider who is in the [Defendant] Network.”4 The Plan, however, provides for

two exceptions to this general rule, providing coverage for out-of-network services if: (i)

Defendant determines that the services are not available from an in-network provider within a 75-

mile radius of Plaintiff’s home and Defendant issues written approval to Plaintiff to obtain the out-

of-network services or (ii) Plaintiff has an Emergency Medical Service and is unable to obtain care

from an in-network provider.5 The Plan provides that under the first exception, Defendant will

approve out-of-network treatment “only if [Defendant] determine[s] that the services cannot be

provided by a Network Provider within a seventy-five (75) mile radius of the Member’s home.”6

The Plan further states that “if [Defendant] does not approve the use of the Non-Network Provider

and issue any required Authorization before services are rendered, no Benefits will be paid and the

Member may be responsible for all charges.”7

Pertinent to this case, the Plan provides coverage for “Mental Health and Substance Use

Disorders.”8 The Plan also covers treatment related to Autism Spectrum Disorders.9 However,

equally important to this case, the Plan specifically exempts any “[s]ervices, treatments,

procedures, equipment, drugs, devices, items or supplies that are not Medically Necessary,”

4 AR 11.

5 Id.

6 AR 60.

7 Id.

8 AR 45.

9 AR 53.

2

whether in-network or out-of-network.10 The Plan defines Medically Necessary as:

Healthcare services, treatment, procedures, equipment, drugs, devices, items or

supplies that a Provider, exercising prudent clinical judgment, would provide to a

patient for the purpose of preventing, evaluating, diagnosing or treating an illness,

injury, disease or its symptoms, and that are:

A. in accordance with nationally accepted standards of medical practice;

B. clinically appropriate, in terms of type, frequency, extent, level of care, site

and duration, and considered effective for the patient’s illness, injury or

disease; and

C. not primarily for the personal comfort or convenience of the patient or

Provider, and not more costly than alternative services, treatment,

procedures, equipment, drugs, devices, items or supplies or sequence

thereof and that are as likely to produce equivalent therapeutic or diagnostic

results as to the diagnosis or treatment of that patient’s illness, injury or

disease . . . .11

B. Factual Background

Plaintiff seeks review of Defendant’s denial of Plaintiff’s claim for out-of-network

services. Plaintiff alleges that he suffered from a “multitude of complex medical conditions.”12

Beginning in 2016, Plaintiff was treated by Dr. Panagiotis Markopoulos (“Dr. Markopoulos”).13

In 2017, Plaintiff was referred to Dr. Robert Gervey (“Dr. Gervey”) to undergo psychological

testing.14 Through such testing, Dr. Gervey diagnosed Plaintiff with Delusional Disorder, Bipolar

Disorder, Psychoactive Substance Abuse, Paranoid Personality Disorder, Narcissistic Personality

Disorder with Negativistic (Passive-Aggressive) Personality Traits and Sadistic Personality

10 AR 63.

11 AR 25.

12 Rec. Doc. 28 at 5.

13 AR 1213.

14 AR 165.

3

Traits.15

Plaintiff alleges that beginning in January 2019, his health became an “emergency.”16

Despite working with Dr. Markopoulos to find an in-network provider for mental health and

substance use disorder, Plaintiff alleges that he was denied treatment by in-network facilities

because “they did not have the personnel capable of addressing [Plaintiff]’s complex medical

conditions.”17 Ultimately, Plaintiff was admitted to Pine Grove Behavioral Health & Addiction

Services (“Pine Grove”), an out-of-network inpatient facility in Mississippi, and underwent

treatment from January 14, 2019 to April 15, 2019.18 Prior to starting treatment at Pine Grove,

Plaintiff submitted his claims to Defendant for authorization but Defendant denied coverage.19

Upon his admission to Pine Grove on January 14, 2019, Plaintiff underwent multiple

assessments.20 Plaintiff’s admission assessment notes that he suffered from anxiety and

depression.21 It notes that his medical history includes post-traumatic stress disorder, anxiety,

depression, and autism.22 The report states that he “feels irritable, has impaired impulse control,

especially with decision making. Has trouble sleeping.”23 It further summarizes Plaintiff’s mood

15 Id.

16 Rec. Doc. 1-2 at 6.

17 Rec. Doc. 28 at 7.

18 AR 338.

19 AR 132.

20 AR 342; AR 356.

21 AR 343.

22 Id.

23 AR 345.

4

as including anxiety, depression, grief or loss, panic attacks, worrying, mood swings, and guilt,

and states:

He reports anxiety since 12. Depression since 15. He feels grief over losing his

grandpa 2 years ago. He has panic attacks but not as often as he used to. He worries

frequently about safety [sic] things he says. He feels guilt about taking his medicine

more than was prescribed and it making him have to come into treatment. He

notices mood swings.24

Plaintiff’s report notes that Plaintiff was prescribed Vyvance but usually took double the amount

prescribed.25

Plaintiff also underwent a “Residential Addictionology Evaluation” upon being admitted.26

The evaluation notes that Plaintiff states “over the past 2 years his stimulant use has increased.

Was on a higher dose of prescription Adderall and after the dose was lowered [Plaintiff] states he

began seeking out stimulants that he could buy from friends or others. States is typically over 2

weeks is about 1-1.5 months [sic] worth.”27 Plaintiff reported experiencing “loss of control, using

more than originally intended, craving/preoccupation, inability to cut down on his own, social

problems secondary to use (a family concern about behaviors), physical or psychological problems

secondary to use (anxiety and panic worsening), tolerance, and withdrawals.”28 The evaluation

also noted a summary of a Call Center assessment.29 The summary details Plaintiff’s family’s

24 AR 346.

25 Id.

26 AR 356.

27 Id.

28 AR 357.

29 Id.

5

concerns that Plaintiff is “paranoid and thinks that everyone is against him” and recounts how

Plaintiff told his mom that he was “going to burn down the house and he told his parents . . . they

would be killed.”30 Plaintiff’s mother alleged that Plaintiff “abuses pills” and was involved with

stealing.31 The evaluation concludes with Plaintiff’s diagnoses—severe stimulant use disorder,

moderate ADHD, and moderate substance-induced insomnia—and estimates Plaintiff’s length of

stay at approximately 60 to 90 days.32

During treatment at Pine Grove, Plaintiff underwent a psychological evaluation by Robert

Whitley (“Whitley”) and Lacey Loy Herrington (“Herrington”).33 In such evaluation, Plaintiff was

administered the Personality Assessment Inventory (“PAI”) and Million Clinical Multiaxial

Inventory (“MCMI-IV”) tests.34 Plaintiff’s results from the PAI test “suggested the possible

presence of Other Substance Dependence, Cyclothymic Disorder, Bipolar I Disorder, Specific

Phobia, and Personality Disorder NOS (Mixed Borderline, Antisocial, Narcissistic, and Paranoid

features).”35 Plaintiff’s results from the MCMI-IV test “suggested the possible presence of

avoidant, dependent, turbulent, paranoid, and negativistic traits in addition to clinical syndromes

including generalized anxiety, bipolar spectrum, and drug dependence.”36 Herrington and Whitley

30 Id.

31 Id.

32 AR 362–63.

33 AR 628.

34 AR 630.

35 AR 632.

36 Id.

6

found that Plaintiff “endorsed symptoms consistent with a severe Stimulant Use Disorder” and a

diagnosis of Unspecified Depressive Disorder.37 Whitley and Herrington’s recommendations

include “evidence-based treatment” to address Plaintiff’s depression, develop health coping

mechanisms, and to address Plaintiff’s Stimulant Use Disorder, as well as a “protective

environment (e.g. sober living, monitoring, and support groups) to further consolidate [Plaintiff’s]

gains made in therapy and help transfer these gains to an unprotected environment.”38

Plaintiff was discharged from Pine Grove on April 15, 2019.39 Plaintiff underwent a

discharge assessment, which notes that Plaintiff did not express homicidal ideation, suicidal

ideation, or auditory or visual hallucinations.40 He was diagnosed as having severe stimulant use

disorder, moderate ADHD, and moderate substance-induced insomnia, but the report notes that

Plaintiff was “[i]n early remission” for stimulant use disorder, stable for his ADHD, and stable for

depressive disorder.41 Plaintiff claims that despite paying $18,500.00 toward the cost of his

treatment, he has an outstanding balance of $92,500.00.42

C. Procedural Background

Prior to starting treatment at Pine Grove, Plaintiff submitted his claims to Defendant for

37 Id.

38 AR 633.

39 AR 350.

40 AR 351.

41 AR 352.

42 Rec. Doc. 28 at 9.

7

authorization, but Defendant denied coverage for the out-of-network services.43 The Plan provides

instructions for “Complaint, Grievance and Appeal Procedures” in Article XX.44 The Plan states

that a member requesting to change an “Adverse Benefit Determination” has two levels of

appeal.45 The first level includes an internal review of the Adverse Benefit Determination, and the

second level mandates an external review by an Independent Review Organization (“IRO”)

randomly assigned by the Louisiana Department of Insurance.46 The IRO decision “will be

considered a final and binding decision on both the [Plan participant] and [Defendant] for purposes

of determining coverage under a health Contract.”47 The Plan provides for an expedited appeal, in

which Defendant will complete an internal review within 72 hours and an IRO appeal will be

completed within 72 hours, if requested by a Plan participant.48

Plaintiff appealed Defendant’s denial of his claims three times. Plaintiff’s parents enlisted

the help of Deanna Phillips (“Ms. Phillips”), an employee of HM Benefits, LLC (“HM Benefits”),

during the appeal process.49 On January 14, 2019, Ms. Phillips submitted an Appeal Request

Form.50 On that same date, Plaintiff’s mother sent a letter of appeal.51 On March 18, 2019,

43 AR 132.

44 AR 93.

45 AR 93–96.

46 Id.

47 AR 96.

48 AR 97.

49 Rec. Doc. 28 at 10.

50 AR 161.

51 AR 162.

8

Defendant denied Plaintiff’s first appeal, alleging that Plaintiff did not have out-of-network

coverage.52 In the letter denying Plaintiff’s appeal, Defendant instructed Plaintiff to contact New

Directions Behavioral Health (“New Directions”) to obtain authorization for mental health services

requests.53

On April 12, 2019, Plaintiff’s counsel submitted a second appeal.54 On January 31, 2020,

Defendant requested Plaintiff’s medical records from Pine Grove.55 On March 2, 2020, Defendant

forwarded these records to New Directions for external review.56 On March 3, 2020, Allen

Lavender, DO (“Dr. Lavender”) performed an independent review of Plaintiff’s claim based on

Plaintiff’s Pine Grove records.57 Dr. Lavender determined that Plaintiff only required outpatient

care and that his in-patient treatment was medically unnecessary.58 Therefore, Plaintiff’s second

appeal was denied.

On December 30, 2019, Plaintiff filed a Petition in the 24th Judicial District Court for the

Parish of Jefferson, State of Louisiana.59 On May 14, 2020, Defendant removed the matter to this

Court pursuant to 28 U.S.C. § 1331.60

52 AR 212.

53 Id.

54 AR 227.

55 AR 272.

56 AR 314.

57 AR 1117–18.

58 Id.

59 Rec. Doc. 1-2.

60 Rec. Doc. 1.

9

On June 20, 2020, Plaintiff submitted a third appeal to New Directions.61 On August 5,

2020, Dr. LaRon Phillips (“Dr. Phillips”) completed an independent review based on Plaintiff’s

Pine Grove records.62 Dr. Phillips determined that Plaintiff did not require in-patient treatment.63

Therefore, Plaintiff’s third appeal was denied.

On January 21, 2021, this Court issued an ERISA Briefing Order.64 On March 9, 2021,

Plaintiff filed a brief in support of review of Defendant’s denial of his claims.65 On March 31,

2021, Defendant filed a brief.66 On April 9, 2021, with leave of Court, Plaintiff filed a reply brief.67

On May 5, 2021, the Court held oral argument on this administrative appeal.68

There is no dispute that the Plan is governed by ERISA.69 It is also undisputed that the Plan

“vests the plan administrator [Defendant] with full discretionary authority to determine eligibility

for benefits and to construe the terms of the plan,” and that ERISA preempts any state law claims

brought by Plaintiff regarding the Plan.70

61 AR 1209.

62 AR 1232.

63 Id.

64 Rec. Doc. 24.

65 Rec. Doc. 28.

66 Rec. Doc. 36.

67 Rec. Doc. 39.

68 Rec. Doc. 33.

69 Rec. Doc. 20.

70 Id. (internal quotation marks omitted).

10

II. Parties’ Arguments

A. Plaintiff’s Arguments in Support of His Claim for Benefits

Plaintiff first argues that his treatment at Pine Grove for mental health and substance use

disorder was covered under the Plan.71 Plaintiff alleges that the Plan specifically provides coverage

for treatment of both.72 While Plaintiff used an out-of-network provider, Plaintiff contends that the

Plan specifically allowed participants to use a non-network provider if the services required could

not be provided by an in-network provider within a 75-mile radius of the participant’s home.73

Plaintiff alleges that there was no provider that would treat him within 75 miles of his house, and

the only treatment center that would admit him was Pine Grove.74 Plaintiff claims that he attempted

to obtain authorization from Defendant prior to receiving treatment from Pine Grove, but that

Defendant “denied [Plaintiff]’s request for benefits and did not even attempt to investigate the

issues.”75

Plaintiff next argues that Defendant’s denial of benefits was arbitrary and capricious.76

Plaintiff contends that Defendant “ignored relevant medical information in determining whether

to provide benefits for [Plaintiff’s] treatment at Pine Grove,” including reports of Plaintiff’s

71 Rec. Doc. 28 at 19.

72 Id.

73 Id. at 20.

74 Id.

75 Id.

76 Id. at 21.

11

treating physicians, Dr. Markopolous and Dr. Gervey.77 Plaintiff alleges that he appealed

Defendant’s denial of benefits three times and each time, Defendant “refused to consider the

exception for non-network benefits, the fact that [Defendant] network providers denied treatment,

and the essential medical records provided to them.”78

Plaintiff alleges that the first time he appealed, Defendant denied his appeal by “simply

stat[ing] that Pine Grove was out-of-network and no benefits were allowed.”79 Plaintiff contends

that Defendant failed to account for the Plan’s exception for non-network providers if a participant

could not obtain services within 75 miles of their home.80 Plaintiff alleges that “[t]here is not one

shred of evidence that [Defendant] . . . attempted to determine whether a [Defendant] network

provider could treat [Plaintiff] or whether [Defendant] network provider denied [Plaintiff]

benefits.”81

For his second appeal, Plaintiff claims that Dr. Lavender reviewed Plaintiff’s records but

“without explanation disregarded the psychological evaluation” performed by Plaintiff’s doctors

at Pine Grove.82 Finally, Plaintiff alleges that the doctor who reviewed his claim for his third

appeal, Dr. Phillips, “simply ignored or remained silent on key pieces of evidence making factually

77 Id.

78 Id. at 21–22.

79 Id. at 22.

80 Id.

81 Id.

82 Id.

12

incorrect statements.”83 On all three appeals, Plaintiff contends that “when given opportunities to

make a reasoned judgment, [Defendant] utterly failed” because Defendant “and/or those on its

behalf did not reach their decision based on a principled reasoning process; rather, they quickly

reviewed the Pine Grove medical records and only selected self-serving aspects of that record

without considering the total circumstances at issue.”84

Further, Plaintiff argues that Defendant’s denial of benefits was procedurally flawed.85

Plaintiff alleges that a plan administrator is required to provide a participant whose claim has been

denied with adequate notice in writing, “setting forth specific reasons for such denial.”86 Plaintiff

claims that a plan administrator must also “afford a reasonable opportunity to any participant

whose claim for benefits has been denied for a full and fair review by the appropriate named

fiduciary of the decision denying the claim.”87 Plaintiff alleges that for urgent claims, such as

Plaintiff’s, a plan administrator must notify the participant of the plan’s determination “within 72

hours.”88 Plaintiff contends that Defendant failed to provide Plaintiff with proper notice of denial

of Plaintiff’s claims and failed to decide Plaintiff’s claims within 72 hours.89 Further, during the

appeal process, Plaintiff alleges that Defendant “waited more than two months to process the

83 Id. at 23.

84 Id. at 24.

85 Id. at 25.

86 Id.

87 Id.

88 Id.

89 Id.

13

appeal,” greatly prejudicing Plaintiff because “by that time he had received two months of inpatient

care” and had incurred great cost.90

Finally, Plaintiff seeks attorney’s fees under 29 U.S.C. § 1132(g).91 Plaintiff contends that

he has shown a degree of success on the merits and is thus entitled to attorney’s fees.92

B. Defendant’s Arguments in Opposition to Plaintiff’s Claim for Benefits

Defendant claims that its denial of Plaintiff’s out-of-network claim was based on a fair,

legally correct reading of the Plan.93 Defendant contends that the plain language of the Plan

provides coverage for services rendered by in-network, not out-of-network, providers.94 Defendant

alleges that Pine Grove is an out-of-network provider and therefore, Defendant was correct in

denying Plaintiff’s claim under the Plan.95

Defendant concedes that the Plan allows for out-of-network coverage in two situations: (i)

when services are not available within a 75-mile radius of the participant’s home and Defendant

issues written approval to obtain the out-of-network services or (ii) the participant has a medical

emergency and is unable to obtain in-network care.96 Defendant contends that neither applies to

Plaintiff’s out-of-network treatment.97 Defendant claims that Plaintiff has not provided any

90 Id. at 26.

91 Id.

92 Id.

93 Rec. Doc. 36 at 15.

94 Id.

95 Id. at 16.

96 Id.

97 Id.

14

evidence of facilities within a 75-mile radius from his home at which he attempted to obtain

treatment prior to being admitted at Pine Grove.98 Defendant alleges that no providers outside of

Pine Grove contacted Defendant regarding treatment for Plaintiff and that Plaintiff himself told

Defendant that he refused to accept treatment in the New Orleans area.99

Moreover, Defendant contends that Plaintiff never obtained written authorization from

Defendant prior to receiving out-of-network services.100 Further, Defendant claims that Plaintiff

was not experiencing a medical emergency at the time of his admission to Pine Grove.101

Therefore, Defendant alleges that Plaintiff’s treatment at Pine Grove does not fall under the

Plan.102 Defendant claims that “if the Plan was interpreted to provide benefits as Plaintiff argues,

that interpretation would create significant unanticipated costs, thereby preventing [Defendant]

from being able to effectively administer the ERISA Plan.”103

Alternatively, Defendant alleges that it did not abuse its discretion by denying Plaintiff’s

claim because Plaintiff’s treatment was not medically necessary and therefore was not covered by

the Plan.104 Defendant claims that none of Plaintiff’s Pine Grove medical records “reflect any

emergency needs,” and contends that Plaintiff’s reliance on Dr. Markopoulos’ report is misplaced

98 Id. at 16–17.

99 Id. at 17.

100 Id.

101 Id.

102 Id. at 18.

103 Id.

104 Id. at 19, 21.

15

because the report was made eighteen months after Plaintiff’s admission to Pine Grove and after

benefits had been denied.105 Defendant points to the two independent reviews it had done of

Plaintiff’s request for out-of-network coverage, by Dr. Lavender and Dr. Phillips, and claims that

both independently concluded that Plaintiff could have been treated through outpatient care.106

Defendant contends that the Plan does not cover treatment that is not medically necessary and thus

even if Plaintiff had sought in-network treatment, his claim still would have been denied under the

Plan.107

C. Plaintiff’s Reply in Further Support of His Claim for Benefits

In reply, Plaintiff contends that Defendant’s interpretation of the Plan is inconsistent with

a plain reading of the Plan.108 Plaintiff alleges that the Plan “does not automatically deny coverage

for services from an out-of-network provider” and instead guarantees coverage for out-of-network

claims if there is not an in-network provider within 75 miles of a participant’s home.109 Plaintiff

claims that Defendant, not Plaintiff, must determine under the terms of the Plan that in-network

services were not available to Plaintiff within a 75-mile radius of Plaintiff’s home.110 Plaintiff

contends that he did identify to Defendant an in-network provider that refused to treat him.111

105 Id. at 19–20.

106 Id. at 20.

107 Id. at 20–21.

108 Rec. Doc. 39 at 3.

109 Id.

110 Id.

111 Id. at 4.

16

Plaintiff alleges that Defendant failed to contact this in-network provider or investigate whether

an in-network provider could have treated Plaintiff.112 Plaintiff claims that this choice “puts

[Defendant’s] decision to deny benefits or even to consider the exceptions in the Plan, outside of

the continuum of reasonableness.”113

Further, Plaintiff argues that his treatment with Pine Grove was medically necessary.114

Plaintiff highlights the reports of Dr. Markopoulos and Dr. Gervey, both of which documented

Plaintiff’s risk of harm to himself.115 Plaintiff alleges that Dr. Lavender and Dr. Philips ignored

relevant medical data and relied on the New Directions Medical Necessity Criteria in crafting their

reports, a document that has not been produced to Plaintiff.116 Plaintiff also notes that Dr. Philips

and Dr. Lavender, using the same criteria, came to different conclusions regarding the amount of

care Plaintiff needed.117 Plaintiff contends that Defendant’s choice to rely on Dr. Lavender and

Dr. Philips was “arbitrary and capricious because it ignored pertinent medical records,” including

those of Plaintiff’s treating physicians.118

112 Id. at 4–5.

113 Id. at 5.

114 Id. at 6.

115 Id. at 7.

116 Id.

117 Id.

118 Id. at 8–9.

17

III. Standard of Review for ERISA Claims

ERISA “permits a person denied benefits under an employee benefit plan to challenge that

denial in federal court.”119 When reviewing a denial of benefits made by an ERISA plan

administrator, the Court applies a de novo standard of review “unless the benefit plan gives the

administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe

the terms of the plan.”120 In such cases, the reviewing court applies an abuse of discretion standard

to the plan administrator’s decision to deny benefits.121

In this case, the parties agree that the Plan “vests the plan administrator [Defendant] with

full discretionary authority to determine eligibility for benefits and to construe the terms of the

plan.”122 Therefore, as the Plan empowers Defendant with discretionary authority to determine

eligibility for benefits and to construe the plan’s terms, the Court applies an abuse of discretion

standard to review Defendant’s decision to deny Plaintiff’s claim for out-of-network benefits.

The Fifth Circuit has articulated a three-step process for review of a plan administrator’s

interpretation of its plan. First, the court “must determine the legally correct interpretation of the

plan” and whether the administrator gave the plan a legally correct reading.123 If the plan

administrator’s interpretation was legally correct, there is no abuse of discretion.124 If the plan

119 Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 105 (2008) (citing 29 U.S.C. § 1001 et seq.; § 1132(a)(1)(B)).

120 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

121 Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512 (5th Cir. 2010) (citing Bruch, 489 U.S. at 115).

122 Rec. Doc. 20 (internal quotation marks omitted).

123 Gosselink v. Am. Tel. & Tel., Inc., 272 F.3d 722, 726 (5th Cir. 2001); Holland v. Int'l Paper Co. Ret. Plan,

576 F.3d 240, 246, n.2 (5th Cir. 2009).

124 Gosselink, 272 F.3d at 726.

18

administrator’s interpretation was legally incorrect, then the court must ask whether the plan

administrator’s decision constituted an abuse of discretion.125 The Fifth Circuit has held that a

court may proceed directly to the second inquiry if the court can more readily determine that the

decision was not an abuse of discretion.126 Finally, under the third step, the Court must determine

whether the plan administrator’s denial of benefits was “supported by substantial evidence.”127

IV. Analysis

Plaintiff seeks reimbursement from Defendant for out-of-network treatment. Plaintiff

contends that Defendant misapplied the terms of the Plan to Plaintiff’s out-of-network claim.128

Plaintiff further argues that Defendant acted arbitrarily when refusing to fairly review Plaintiff’s

claim.129 Finally, Plaintiff argues that Defendant’s denial of benefits was procedurally flawed.130

Under the traditional ERISA analysis, the Court will first determine whether Defendant’s

interpretation of the Plan was legally correct.131 If the Court finds that Defendant’s interpretation

of the Plan was legally correct, the inquiry ends. If the Court finds that Defendant’s interpretation

125 Id. This test applies only in cases, such as the one here, where the administrator has the authority to

interpret the plan and participants' eligibility for benefits.

126 Holland, 576 F.3d at 246, n.2.

127 Connecticut Gen. Life Ins. Co. v. Humble Surgical Hosp., L.L.C., 878 F.3d 478, 483 (5th Cir. 2017).

128 Rec. Doc. 28 at 20; Rec. Doc. 39 at 3.

129 Rec. Doc. 28 at 21.

130 Id. at 25.

131 However, where, as here, “there have been no allegations that the construction of the plan was not uniform

or that there were unanticipated costs, the court may direct its inquiry to the second prong of the test and evaluate

whether the interpretation of the plan was fair and reasonable.” Sankey v. Metro. Life Ins. Co., No. 12-1135, 2013 WL

1868365, at *4 (E.D. La. May 2, 2013) (Barbier, J.).

19

was not legally correct, the Court will then determine whether Defendant’s denial of out-of-

network benefits to Plaintiff was an abuse of discretion and whether such denial was supported by

substantial evidence.

A. Whether Defendant’s Interpretation of the Plan was Legally Correct

First, the Court must determine if Defendant’s interpretation of the Plan is legally correct.

In determining whether Defendant’s interpretation of the Plan is legally correct, the Court must

consider: “(1) whether the administrator has given the Plan a uniform construction, (2) whether

the interpretation is consistent with a fair reading of the Plan, and (3) any unanticipated costs

resulting from different interpretations of the Plan.”132 “ERISA plans must be written to be

understood by the average plan participant, so plans are interpreted in their ordinary and popular

sense as would a person of average intelligence and experience.”133 “The most important factor to

consider is whether [Defendant’s] interpretation is consistent with a fair reading of the plan[].”134

The Court must consider whether the administrator’s decision at the time of denial of benefits was

unreasonable.135

The Plan at issue in this litigation, “generally pays Benefits only when services are obtained

from a Provider who is in the [Defendant] Network.”136 The Plan, however, provides for two

132 Shedrick v. Marriot Int'l, Inc., No. 11–0820, 2012 WL 601881, at *8 (E.D. La. Feb. 23, 2012).

133 Encompass Off. Sols., Inc. v. Louisiana Health Serv. & Indem. Co., 919 F.3d 266, 282 (5th Cir. 2019), cert.

denied sub nom. Louisiana Health Serv. & Indem. Co. v. Encompass Off. Sols., 140 S. Ct. 221 (2019) (internal

quotation marks omitted).

134 Id.

135 Hall v. Nw. Nat. Life Ins. Co., No. 93-2459, 1994 WL 532593, at *1 (E.D. La. Sept. 28, 1994) (Sear, C.J.).

136 AR 11.

20

exceptions to this general rule, providing coverage for out-of-network services if: (i) Defendant

determines that the out-of-network services are not available from an in-network provider within

a 75-mile radius of Plaintiff’s home and Defendant issues written approval to Plaintiff to obtain

the out-of-network services or (ii) Plaintiff has an Emergency Medical Service and is unable to

obtain the care from an in-network provider.137 The Plan provides that under the first exception,

Defendant will approve out-of-network treatment “only if [Defendant] determine[s] that the

services cannot be provided by a Network Provider within a seventy-five (75) mile radius of the

Member’s home.”138

The parties appear to agree on the general interpretation of the Plan as providing only in-

network coverage with the two exceptions listed above. However, the parties disagree as to which

party has the burden of showing whether or not Plaintiff could have received in-network care

within 75 miles of his home under the Plan’s first exception.

According to Plaintiff, under a plain reading of the Plan, it is Defendant’s duty, not

Plaintiff’s, to determine that treatment is not available from an in-network provider within a 75-

mile radius of Plaintiff’s home.139 Plaintiff urges the Court to read the Plan as mandating that

Defendant “make an inquiry and investigation” as to whether an in-network provider is available

within 75 miles of Plaintiff’s home.140 Since providers who denied him treatment would not submit

a claim or inquiry to Defendant, Plaintiff asserts that the burden to prove that no in-network

137 Id.

138 AR 60.

139 Rec. Doc. 39 at 3–4.

140 Id. at 4.

21

treatment was available cannot fall on Plaintiff.141 Plaintiff alleges that the record is “devoid of

any attempt” by Defendant to contact in-network providers to determine if they would treat

Plaintiff, a choice by Defendants that Plaintiff contends was “outside the continuum of

reasonableness” and was based on a legally incorrect reading of the Plan.142

By contrast, Defendant argues that its denial of benefits to Plaintiff was based on a legally

correct reading of the Plan.143 Defendant alleges that the Plan is clear, and provides for in-network

benefits if Defendant determines services are not available from an in-network provider within a

75-mile radius of the participant’s home and Defendant issues written approval to obtain the out-

of-network services.144 Defendant claims that Plaintiff failed to provide evidence proving that in-

network providers would not accept Plaintiff for treatment and therefore, the exception does not

apply and Plaintiff’s out-of-network treatment is not covered by the Plan.145

While Plaintiff argues that the 75-mile out-of-network exception places the burden on

Defendant to “make an inquiry and investigation into this issue” and contact in-network providers

to “determine whether those facilities could treat [Plaintiff],”146 the provision does not, by its plain

language, appear to require such steps by Defendant. The baseline coverage included in the Plan

is in-network treatment. The Plan provided a website through which Plaintiff could have

141 Id.

142 Id. at 4–5.

143 Rec. Doc. 36 at 15.

144 Id. at 16.

145 Rec. Doc. 36.

146 Rec. Doc. 39 at 4.

22

discovered participating doctors and instructs participants to call customer service with any Plan

questions.147 Only in exceptional circumstances are participants, including Plaintiff, covered for

out-of-network care, including if Defendant “determine[s] that services are not available” from an

in-network provider.

Given that out-of-network care is the exception, the plain reading of the Plan supports the

notion that some evidence would need to be provided by Plaintiff to Defendant to justify this out-

of-network care and to break from the Plan’s general rule that only in-network services are

covered. While Plaintiff alleges that he provided to Defendant the name of an in-network facility,

Longleaf Hospital, that refused to treat Plaintiff, there is nothing in the record showing that

Plaintiff provided this information to Defendant prior to beginning treatment at Pine Grove, at the

time of Defendant’s initial denial of coverage. Moreover, this one name is insufficient to prove

that Plaintiff could not have obtained treatment from any in-network provider.

Based on the above, Defendant’s denial of benefits to Plaintiff was based on a legally

correct reading of the Plan. Further, in the case of an ambiguous provision, because Defendant

retained “full discretionary authority to determine eligibility for Benefits and/or construe the terms

of” the Plan,148 Fifth Circuit precedent instructs that “by giving [Defendant] complete discretion

to interpret the plans, if there had been an ambiguity, [Defendant] was empowered to resolve it,

exercising interpretive discretion.”149 Given that Defendant’s denial of benefits was a legally

147 AR 113.

148 AR 83.

149 High v. E-Sys. Inc., 459 F.3d 573, 579 (5th Cir. 2006).

23

correct interpretation of the Plan, the Court finds in favor of Defendant.

B. Whether Defendant Abused its Discretion in Denying Plaintiff’s Benefits & Whether

Defendant’s Denial Was Based on Substantial Evidence

Although the Court need not proceed to steps two and three of a traditional ERISA analysis

after determining that Defendant utilized a correct interpretation of the Plan in denying Plaintiff’s

claim, the Court notes that steps two and three further support Defendant’s denial of coverage.

Under steps two and three of a traditional ERISA analysis, the Court must determine whether

Defendant abused its discretion in denying Plaintiff’s claim and whether substantial evidence

supports Defendant’s denial. The Court’s review of factual determinations under the abuse of

discretion standard is limited to the evidence contained in the administrative record.150 As a

claimant under §1132(a)(1)(B), Plaintiff bears “the initial burden of demonstrating . . . that [the]

denial of benefits under an ERISA plan [was] arbitrary and capricious.”151 “[T]he law requires

only that substantial evidence support a plan fiduciary’s decision . . . not that substantial evidence

(or, for that matter, even a preponderance) exists to support the employee’s claim of disability.”152

The Fifth Circuit instructs that “[i]f the plan fiduciary’s decision is supported by substantial

evidence and is not arbitrary or capricious, it must prevail.”153 The Fifth Circuit has held:

Substantial evidence is more than a mere scintilla, less than a preponderance, and

is such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion. . . . An arbitrary decision is one made without a rational connection

150 Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 333 n.5 (5th Cir. 2001) (noting, as an

exception to this general rule, that a district court may consider evidence outside the administrative record if it will

assist the court in understanding the medical terminology or practice related to the claim).

151 Anderson, 619 F.3d at 512–13.

152 Ellis v. Liberty Life Assur. Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004).

153 Id.

24

between the known facts and the decision or between the facts and the evidence….

Ultimately, [the Court’s review] of the administrator’s decision need not be

particularly complex or technical; it need only assure that the administrator’s

decision fall somewhere on a continuum of reasonableness–even if on the low

end.154

Moreover, “when a court reviews a plan administrator’s decision for abuse of discretion, it must

‘not disturb an administrator's decision if it is reasonable, even if the court would have reached a

different decision.’”155

The Court must additionally measure the conflict of interest that arises from the dual role

of an entity acting as an ERISA plan administrator and also as a payer of plan benefits, as a factor

in determining whether the plan administrator has abused its discretion in denying benefits.156

However, if a claimant presents no other evidence (other than the company’s dual role) as to the

degree that a conflict exists and affects the decision to deny benefits, the Court reviews the

administrator’s decision “with only a modicum less deference than [it] otherwise would.”157

Plaintiff has presented no evidence to establish a conflict of interest beyond Defendant’s dual role;

thus, the Court reviews Defendant’s determination with substantial deference.158

Defendant did not abuse its discretion in denying Plaintiff’s claim. The Plan specifically

154 Corry v. Liberty Life Assur. Co. of Bos., 499 F.3d 389, 398–99 (5th Cir. 2007) (citations and internal

quotations omitted).

155 McCorckle v. Metropolitan Life Ins. Co., 757 F.3d 452, 459 (5th Cir. 2014) (citing Donovan v. Eaton

Corp. Long Term Disability Plan, 462 F.3d 321, 326 (4th Cir.2006) (emphasis in original)).

156 Glenn, 554 U.S. at 108.

157 Corry, 499 F.3d at 398 (quoting Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 301 (5th Cir. 1999) (en

banc)).

158 See Anderson v. Cytec Indus., Inc., No. 07-5518, 2009 WL 911296, at *6 (E.D. La. Mar. 27, 2009)

(Feldman, J.), aff'd, 619 F.3d 505 (5th Cir. 2010); Holland, 576 F.3d at 249.

25

exempts any “[s]ervices, treatments, procedures, equipment, drugs, devices, items or supplies that

are not Medically Necessary,” whether in-network or out-of-network.159 The Plan defines

Medically Necessary as:

Healthcare services, treatment, procedures, equipment, drugs, devices, items or

supplies that a Provider, exercising prudent clinical judgment, would provide to a

patient for the purpose of preventing, evaluating, diagnosing or treating an illness,

injury, disease or its symptoms, and that are:

A. in accordance with nationally accepted standards of medical practice;

B. clinically appropriate, in terms of type, frequency, extent, level of care, site

and duration, and considered effective for the patient’s illness, injury or

disease; and

C. not primarily for the personal comfort or convenience of the patient or

Provider, and not more costly than alternative services, treatment,

procedures, equipment, drugs, devices, items or supplies or sequence

thereof and that are as likely to produce equivalent therapeutic or diagnostic

results as to the diagnosis or treatment of that patient’s illness, injury or

disease . . . .160

The administrative record supports Defendant’s denial, providing ample support for the

fact that Plaintiff’s in-patient treatment was not medically necessary. Defendant’s denial is

supported by the medical report of both Dr. Lavender and Dr. Phillips. On March 3, 2020, Dr.

Lavender performed an independent review of Plaintiff’s claim based on Plaintiff’s Pine Grove

records, and determined that Plaintiff only required outpatient care.161 Dr. Lavender found that

Plaintiff had “no delusions,” “[n]o aggressive or threatening behaviors,” and no suicidal

ideation.162 Dr. Lavender’s report states that Plaintiff is “functioning at his baseline” and Plaintiff’s

159 AR 63.

160 AR 25.

161 AR 1117–18.

162 Id.

26

care team “reports that [Plaintiff is] able to function day to day.”163 Dr. Lavender found that

Plaintiff did “not have a medical condition that requires [Pine Grove’s] level of care” nor

“require[d] residential care to keep safe.”164 Dr. Lavender found that Plaintiff was “not thinking

about harming anyone” and was “not at a high risk to be hospitalized.”165 In sum, Dr. Lavender

found that Plaintiff could “safely be treated in a less restrictive setting such as Outpatient” and

found that only outpatient care was medically necessary.166

Dr. Lavender’s findings were thereafter backed up by Dr. Phillips, who conducted a

separate review on August 5, 2020. After Plaintiff submitted his third appeal to New Directions

on June 20, 2020, Dr. Phillips completed an independent review and determined that Plaintiff did

not require in-patient treatment.167 Relying on Plaintiff’s medical records from Pine Grove, Dr.

Phillips found that Plaintiff, at the time of admission to Pine Grove, “had no active thoughts, intent

or plan of suicide/self harm” and “was not described as violent, homicidal, aggressive, psychotic,

threatening or manic.”168 Dr. Phillips found that “[t]reatment of an adequate intensity and

frequency could have been provided in a less restrictive level of care with a reasonable expectation

of clinical benefit and stabilization as the presenting symptoms were not suggestive of an imminent

163 AR 1118.

164 Id.

165 Id.

166 Id.

167 AR 1209, 1232.

168 AR 1232.

27

threat of harm to himself or others nor indicative of grave disability.”169 He further found that

“[f]rom a clinical perspective, adequate support, medication management, psychoeducation and

clinical observation could have been provided in a less restrictive setting to safely and appropriate

address [Plaintiff]’s mental health condition.”170 Therefore, Dr. Phillips found “intensive

outpatient” care to be medically necessary and Plaintiff’s third appeal was denied on the basis that

Plaintiff’s treatment at Pine Grove was not medically necessary.171

Plaintiff contends that Defendant, and the independent reviewers, acted arbitrarily by not

considering Plaintiff’s past medical records, including records from Plaintiff’s treatment with Dr.

Markopolous and Dr. Gervey, as well as Herrington and Whitley’s evaluation at Pine Grove.172

As an initial matter, although a plan administrator may not arbitrarily ignore a treating physician’s

opinion, “courts have no warrant to require administrators automatically to accord special weight

to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete

burden of explanation when they credit reliable evidence that conflicts with a treating physician’s

evaluation.”173 Additionally, Plaintiff’s complaint that “[n]either Dr. Lavender nor Dr. Phillips

ever met [Plaintiff], and it seems odd that after a single day reviewing a file, they could offer more

insight than those that treated [Plaintiff]” is misplaced.174 “[A]n independent physical examination

169 Id.

170 Id.

171 AR 1233, AR 1235.

172 See, e.g., Rec. Doc. 28 at 16.

173 Holland, 576 F.3d at 250.

174 Rec. Doc. 28 at 24.

28

is not a requirement. A review of the claimant’s medical records is sufficient to support the opinion

of a doctor appointed by the plan administrator.”175

Moreover, it is not clear that Dr. Lavender even had access to Plaintiff’s medical records

with Dr. Markopolous or Dr. Gervey at the time of his review. Plaintiff admits that reports from

these two doctors may not have been included in Plaintiff’s Pine Grove medical records which

were given to Dr. Lavender for his independent review.176 Dr. Markopolous’ letter outlining

Plaintiff’s medical history and treatment is dated June 12, 2020,177 whereas Dr. Lavender’s review

was completed three months prior on March 3, 2020.178 Further, Plaintiff provides no evidence

that Dr. Lavender was given Dr. Gervey’s report to review, and has equally failed to show that

such report, if provided, would have made a material difference in Dr. Lavender’s assessment. Dr.

Lavender was reviewing Plaintiff’s medical status in early 2019; Dr. Gervey’s report focuses on

testing of Plaintiff done in January 2017.

Plaintiff attached both reports to his third appeal, reviewed by Dr. Phillips, thereby seeming

to confirm that the reports were not previously available in Plaintiff’s medical records at the time

of Dr. Lavender’s review.179 While Plaintiff contends that Dr. Phillips disregarded the reports in

reviewing Defendant’s denial of Plaintiff’s claim, Plaintiff has failed to provide evidence that

175 Chapman v. Prudential Life Ins. Co. of Am., 267 F. Supp. 2d 569, 579 (E.D. La. 2003) (citing Gooden,

250 F.3d at 335) (Duval, J.).

176 Rec. Doc. 28 at 16.

177 AR 1213.

178 AR 1117.

179 AR 1209-1219.

29

supports his contention that Dr. Phillips did not consider such reports in completing his review.

And again, Dr. Phillips review was based on Plaintiff’s medical status in January 2019; Dr.

Gervey’s report focused on testing done in January 2017.

Plaintiff likewise provides no evidence in support of his argument that the report submitted

by Herrington and Whitley was not considered by Dr. Lavender or Dr. Phillips. Dr. Lavender and

Dr. Phillips reviewed Plaintiff’s Pine Grove medical records, which included Herrington and

Whitley’s report. While Herrington and Whitley’s report recommends that Plaintiff “receive

evidence-based treatment” to address his Stimulant Use Disorder and depression, such report never

endorses inpatient treatment as medically necessary.180 Therefore, Plaintiff has failed to show that

Dr. Lavender or Dr. Phillips did not utilize such report in arriving at their ultimate conclusions

concerning the medical necessity of Plaintiff’s treatment.

Accordingly, because Defendant’s decision to deny Plaintiff’s claim for out-of-network

treatment is supported by substantial evidence in the record, Defendant did not abuse its discretion.

C. Whether Defendant’s Denial of Benefits Was Procedurally Flawed

Plaintiff’s final argument in favor of relief is that Defendant’s denial of benefits was

procedurally flawed. Plaintiff takes issue with both the timing of the denial of coverage and the

notice of the denial of coverage provided by Defendant.

Plaintiff cites to 28 U.S.C. § 1133, which provides that for plans covered by ERISA:

[E]very employee benefit plan shall

(1) provide adequate notice in writing to any participant or beneficiary

whose claim for benefits under the plan has been denied, setting forth the

specific reasons for such denial, written in a manner calculated to be

180 AR 633.

30

understood by the participant, and

(2) afford a reasonable opportunity to any participant whose claim for

benefits has been denied for a full and fair review by the appropriate named

fiduciary of the decision denying the claim.”181

Plaintiff also cites to 29 C.F.R. § 2560.503-1(f)(2)(i), which provides, in pertinent part:

Urgent care claims. In the case of a claim involving urgent care, the plan

administrator shall notify the claimant of the plan's benefit determination (whether

adverse or not) as soon as possible, taking into account the medical exigencies, but

not later than 72 hours after receipt of the claim by the plan, unless the claimant

fails to provide sufficient information to determine whether, or to what extent,

benefits are covered or payable under the plan.

“Challenges to ERISA procedures are evaluated under the substantial compliance standard.”182

As an initial matter, the record does not support Plaintiff’s contention that 29 C.F.R.

§ 2560.503-1(f)(2)(i) applies to Plaintiff’s claim. In Plaintiff’s admission assessment at Pine

Grove, it was reported that Plaintiff “feels irritable, has impaired impulse control, especially with

decision making. Has trouble sleeping.”183 It further summarizes Plaintiff’s mood as including

anxiety, depression, grief or loss, panic attacks, worrying, mood swings, and guilt, and states:

He reports anxiety since 12. Depression since 15. He feels grief over losing his

grandpa 2 years ago. He has panic attacks but not as often as he used to. He worries

frequently about safety [sic] things he says. He feels guilt about taking his medicine

more than was prescribed and it making him have to come into treatment. He

notices mood swings.184

There is no indication in the report that immediate treatment was necessary or urgent. Even so,

181 Rossi v. Precision Drilling Oilfield Servs. Corp. Emp. Benefits Plan, 704 F.3d 362, 366 (5th Cir. 2013)

(citing 29 U.S.C. § 1133 (2006)) .

182 Cooper v. Hewlett-Packard Co., 592 F.3d 645, 652 (5th Cir. 2009).

183 AR 345.

184 AR 346.

31

Defendant’s initial denial of coverage to Plaintiff was immediate.185

Further, Defendant’s denial of Plaintiff’s first appeal also substantially complied with

ERISA procedures under 29 C.F.R. § 2560.503-1(i). Plaintiff contends that Defendant’s failure to

accept Plaintiff’s appeal in January 2019 greatly prejudiced Plaintiff because by the time the appeal

was decided in March, “he had received two months of inpatient care” and accrued large medical

bills.186 However, Plaintiff has failed to point to any evidence that Defendant acted improperly

during this two month period in which Defendant requested authorization from Plaintiff, an adult

at the time of treatment, prior to starting the appeal process.

The required authorization was submitted on March 7, 2019.187 Defendant’s review began

on March 13, 2019, and the appeal was denied on March 18, 2019.188 As stated above, the record

does not support a finding the Plaintiff’s treatment was urgent. Therefore, this decision was timely

under 29 C.F.R. § 2560.503-1(i).

Moreover, even if Plaintiff’s claims were considered urgent in March 2019, Defendant

substantially complied with 29 C.F.R. § 2560.503-1(i)(2)(i). Defendant rendered a decision five

days after receipt of Plaintiff’s appeal. The Court notes that two of the five days involved in

Defendant’s review were weekend days. Moreover, Plaintiff has not shown how these extra two

days of response time prejudiced Plaintiff. Plaintiff had already been in treatment since January

14, 2019 and incurred large costs prior to the uploading of the appeal on March 13, 2019.

185 AR 132.

186 Id.

187 AR 141.

188 AR 142.

32

Plaintiff also alleges that he was not provided proper notice by Defendant of the denial of

Plaintiff’s claim under 28 U.S.C. § 1133. The only evidence in the record regarding Defendant’s

initial denial of Plaintiff’s claim is a note in Defendant’s system that a provider “called to get

general benefits for substance abuse” and that an employee of Defendant “advised that member

has straight HMO and no oon benefits.”189 There does not appear to have been written notice

provided to Plaintiff that Plaintiff’s claims were being denied. However, Plaintiff was provided

with a reason for denial of Plaintiff’s claim and put on notice that Plaintiff’s claim was denied.190

Under the appropriate “substantial compliance” standard, Defendant’s lack of written notice is not

detrimental to Defendant’s denial of Plaintiff’s claim.

D. Fees, Costs and Interest

Pursuant to 29 U.S.C. § 1132(g), the Court, in its discretion, may allow a reasonable

attorney’s fees and costs award to either party. The Fifth Circuit has articulated five factors for

district courts to consider in determining whether to award attorney’s fees: “(1) the degree of the

opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award

of attorney’s fees; (3) whether an award of attorney’s fees against the opposing parties would deter

other persons acting under similar circumstances; (4) whether the parties requesting attorney’s fees

sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant

legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions.”191

189 AR 132.

190 Id.

191 Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980).

33

However, the Fifth Circuit also stated that “[n]o one of these factors is necessarily decisive, and

some may not be apropos in a given case, but together they are the nuclei of concerns that a court

should address.”192

Plaintiff’s brief includes a request for attorney’s fees.193 29 U.S.C. § 1132(g)(1) permits

the Court to award attorney’s fees and costs “to either party.”194 Although a litigant need not be

the “prevailing party” to obtain a fees and costs award, the United States Supreme Court explained

that “a fees claimant must show ‘some degree of success on the merits’ before a court may award

attorney’s fees under § 1132(g)(1).”195 Plaintiff has not satisfied that standard. Thus, Plaintiff is

not entitled to an award for attorney’s fees and costs.

V. Conclusion

Based on the foregoing, the Court affirms the denial of benefits and dismisses Plaintiff’s

claims with prejudice. The Court declines to award attorney’s fees or costs to either party.

Accordingly,

192 Id.

193 Rec. Doc. 28 at 26.

194 29 U.S.C. § 1132(g)(1).

195 Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 245 (2010).

34

IT IS HEREBY ORDERED that Defendant HMO Louisiana, Inc.’s decision denying

benefits to Plaintiff Andre Bergeron under the terms of the Plan is AFFIRMED. Plaintiff Andre

Bergeron’s claims against Defendant HMO Louisiana, Inc. are DISMISSED WITH

PREJUDICE.

NEW ORLEANS, LOUISIANA, this 29th day of July, 2021.

NANNETTE J pe BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

35