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Ariana M. v. Humana Health Plan of Texas, Inc.

United States Court of Appeals, Fifth Circuit

March 1, 2018

ARIANA M., Plaintiff - Appellant

         Appeal from the United States District Court for the Southern District of Texas


          GREGG COSTA, Circuit Judge, joined by STEWART, Chief Judge, DENNIS, PRADO, SOUTHWICK, HAYNES, GRAVES, and HIGGINSON, Circuit Judges:

         When an ERISA plan lawfully delegates discretionary authority to the plan administrator, a court reviewing the denial of a claim is limited to assessing whether the administrator abused that discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). For plans that do not have valid delegation clauses, the Supreme Court has held that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard." Id. For a quarter century, we have interpreted that holding to apply only to a denial of benefits based on an interpretation of plan language. The result is a bifurcated standard of review for challenges in our circuit to the denial of ERISA benefits. Courts reviewing challenges to the legal interpretation of a plan do not, as Firestone says, give any deference to the administrator's view of plan language. But challenges to an administrator's factual determination that a beneficiary is not eligible are reviewed under the same abuse-of-discretion standard that applies when plans have delegated discretion. Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir. 1991). When Pierre was decided, it created a circuit split with one other court of appeals that had read Firestone to set a default de novo standard for both legal and factual determinations. Reinking v. Phila. Am. Life Ins. Co., 910 F.2d 1210, 1213-14 (4th Cir. 1990), overruled on other grounds by Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017 (4th Cir. 1993). In the time since, seven other courts of appeals have chimed in. Every one has taken the view that the standard of review does not depend on whether the denial is deemed to be based on legal or factual grounds.

         We thus have long stood alone in limiting Firestone's de novo review to denials based on interpretations of plan terms. Our outlier view did not affect a great number of ERISA cases, however, because delegation clauses that remove a case from the default standard of Firestone are so prevalent. But the importance of this issue may be growing. As part of a trend in a number of states, [1] Texas recently enacted a law banning insurers' use of delegation clauses. Tex. Ins. Code § 1701.062(a). Assuming that the antidelegation statute is not preempted by federal law-something we do not decide today as that defense has not been asserted-a lot more ERISA cases will be subject to Firestone's default standard of review. So we granted en banc review of this case to reconsider Pierre and determine the default standard of review that applies when a beneficiary challenges a plan denial based on a factual determination of ineligibility.


         Ariana M. is a dependent covered by an Eyesys Vision Inc. group health plan. Humana Health Plan of Texas, Inc. insures and makes benefits determinations for that plan. So when Ariana was admitted to Avalon Hills, a facility that treats eating disorders, Humana determined whether and for how long to cover her partial hospitalization. According to the plan's terms, partial hospitalization includes comprehensive treatment for a minimum of five hours per day, five days a week. This treatment is more intensive than any form of outpatient care.

         When she was admitted, Ariana had over 100 self-inflicted cuts on her body, while her escalating eating disorder interfered with her ability to lead a normal life. This was no isolated occurrence. By that time, Ariana had a six-year history of eating disorders, though she claimed that her body-image dissatisfaction dated back to early childhood.

         A beneficiary is only eligible for partial hospitalization for mental health services if the treatment is "medically necessary." Medically necessary services are those "that a health care practitioner exercising prudent clinical judgment would provide to his or her patient for the purpose of preventing, evaluating, diagnosing or treating an illness or bodily injury, or its symptoms."

         Ariana's treatment lasted from April to September 2013. Though Humana, at various points, denied certification for continued treatment- reversing course only on appeal by Avalon Hills-it did eventually authorize forty-nine days of partial hospitalization. But Humana declined to allow partial hospitalization beyond June 5th, claiming it was no longer medically necessary.

         In reaching this conclusion, Humana had two doctors evaluate Ariana's records. Dr. Manjeshwar Prabhu-a contract physician with Humana's behavioral-health vendor-conducted the initial review, finding that Ariana no longer qualified for treatment under the Mihalik criteria. Mihalik provides a set of privately licensed guidelines used to evaluate the need for certain medical services. In Prabhu's view, Ariana posed no imminent danger to herself or others and showed no medical instability or functional impairments, so a lower level of care, such as an intensive outpatient treatment, was appropriate. Though Avalon Hills-whose physicians participated in a peer-to-peer review of Ariana's case with Prabhu-acknowledged she was neither suicidal nor psychotic, it informed Prabhu that Ariana was not progressing in her treatment. In the view of a therapist at the facility, Ariana appeared to be at her "baseline behaviors."

         Avalon Hills appealed the denial. That prompted Humana to seek an additional review from Dr. Neil Hartman, a psychiatrist with Advanced Medical Reviews. He evaluated Ariana's medical records-including Prabhu's determination-and consulted her treating physicians. Hartman concluded that Ariana's partial hospitalization was no longer necessary because she was "medically stable, " "not aggressive, " and "not a danger to [herself or others]."

         Ariana then filed this lawsuit. The plan has a clause granting to Humana "full and exclusive discretionary authority to: [i]nterpret plan provisions; [m]ake decisions regarding eligibility for coverage and benefits; and [r]esolve factual questions relating to coverage and benefits." Early in the lawsuit, Ariana argued that the clause was unenforceable because Texas prohibits discretionary clauses. Tex. Ins. Code § 1701.062(a). In response, Humana agreed to not rely on the delegation clause (and thus did not raise a preemption defense to the Texas statute) and said it would defend its denial under the default "de novo" standard. Despite using the "de novo" label, Humana made clear that it was invoking the "abuse of discretion" standard Pierre applies to factual determinations even when a plan does not grant the administrator discretion. Ariana argued that the Texas law did not just invalidate delegation clauses but also overrode Pierre's deferential standard of review.

         The district court disagreed that Texas law could dictate the ERISA standard of review. The court thus applied Pierre and assessed whether Humana's decision fell "somewhere on a continuum of reasonableness-even if on the low end." Ariana M. v. Humana Health Plan of Tex., Inc., 163 F.Supp.3d 432, 439 (S.D. Tex. 2016) (quoting Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009)). It held that Humana did not abuse its discretion in finding Ariana's continued partial hospitalization medically unnecessary- Prabhu and Hartman both conducted peer-to-peer reviews with her treating physicians, reviewed her medical files, provided reports citing the Mihalik criteria, and explained why she did not qualify for continued partial hospitalization under the plan. Id. at 442. As a result, the district court granted Humana's motion for summary judgment and denied Ariana's. Id. at 443.

         A panel of this court affirmed. Ariana M. v. Humana Health Plan of Tex., Inc., 854 F.3d 753, 762 (5th Cir. 2017). The panel rejected Ariana's contention that the Texas statute mandated a specific standard of review, finding instead that the "plain text of the statute provides only that a discretionary clause cannot be written into an insurance policy." Id. at 757. Therefore, Texas's antidelegation law did not alter "normal Pierre deference." Id. The panel also recognized that Pierre deference, under this court's long-held view, dictated abuse of discretion as the appropriate standard to review an administrator's factual determinations, irrespective of whether the ERISA plan contains a discretionary clause. Id. at 756-57 (citing Pierre, 932 F.2d at 1562 and Dutka ex rel. Estate of T.M. v. AIG Life Ins. Co., 573 F.3d 210, 212 (5th Cir. 2009)).

         But the entire panel joined a concurring opinion questioning Pierre's continuing vitality given that every other circuit to consider the standard of review issue has decided otherwise. Id. at 762 (Costa, J., specially concurring). A number of amici, including the Department of Labor and the Texas Department of Insurance, supported Ariana's request for full court reconsideration of Pierre. We granted the petition.


         We first consider Ariana's argument that the Texas statute dictates the standard of review for ERISA cases. That is not our reading of the antidelegation law. It provides that an "insurer may not use a document described by Section 1701.002"-which includes health insurance policies-"in this state if the document contains a discretionary clause." Tex. Ins. Code § 1701.062(a). In turn, the law defines discretionary clauses to encompass any provision that "purports or acts to bind the claimant to, or grant deference in subsequent proceedings to, adverse eligibility or claim decisions or policy interpretations by the insurer" or "specifies . . . a standard of review in any appeal process that gives deference to the original claim decision or provides standards of interpretation or review that are inconsistent with the laws of this state, including the common law." Tex. Ins. Code § 1701.062(b)(1), (2)(D).

         The Texas insurance code provision thus only renders discretionary clauses unenforceable; it does not attempt to prescribe the standard of review for federal courts deciding ERISA cases. As to whether federal law preempts this state action making discretionary clauses unenforceable, we do not consider that defense because Humana did not assert it.[2]


         With the delegation clause out of the picture and federal ERISA law providing the standard of review, this case presents us with an opportunity to reconsider Pierre. It held that "for factual determinations under ERISA plans, the abuse of discretion standard of review is the appropriate standard; that is, federal courts owe due deference to an administrator's factual conclusions that reflect a reasonable and impartial judgment." 932 F.2d at 1562. No other circuit agrees that Firestone's default de novo standard is limited to the construing of plan terms. See Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1285 (11th Cir. 2003); Riedl v. Gen. Am. Life Ins. Co., 248 F.3d 753, 756 (8th Cir. 2001); Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 250- 51 (2d Cir. 1999); Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1070 (9th Cir. 1999); Rowan v. Unum Life Ins. Co. of Am., 119 F.3d 433, 435-36 (6th Cir. 1997); Ramsey v. Hercules Inc., 77 F.3d 199, 203-05 (7th Cir. 1996); Luby v. Teamsters Health, Welfare, & Pension Trust Funds, 944 F.2d 1176, 1183-84 (3d Cir. 1991); Reinking, 910 F.2d at 1213-14 (all applying de novo review when the plan does not grant discretion).[3]

         All but one of those courts of appeals had the opportunity to consider Pierre, and all that did so rejected its reasoning. They cited a number of reasons for not following our view. At the most basic level, they disagreed with Pierre's reading of Firestone. That Supreme Court decision addressed a dispute about plan interpretation rather than one involving a factual determination that a beneficiary was not entitled to benefits. But every other circuit has read its holding as applying to both situations. That is because Firestone holds that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." 489 U.S. at 115. The first part of this pronouncement-"a denial of benefits"-does not distinguish denials that rest on contractual interpretation from those based on a factual assessment of eligibility; any denial is "to be reviewed under a de novo standard." Id. The end of the sentence does make that distinction in excepting from de novo review denials when plans delegate "discretionary authority to determine eligibility for benefits."[4] Id. Why would a discretionary clause be needed for that type of decision to escape de novo review if eligibility determinations were not subject to that standard of review as a default matter? See Petrilli v. Drechsel, 910 F.2d 1441, 1446 (7th Cir. 1990). And while eligibility determinations may of course turn on plan interpretations, in differentiating between the two types of denials Firestone seemed to view eligibility determinations as encompassing more than just "constru[ing] the terms of the plan." 489 U.S. at 115; see Luby, 944 F.2d at 1183 (explaining that Firestone "strongly suggests that the Court intended de novo review to be mandatory where administrators were not granted discretion, regardless of whether the denials under review were based on plan interpretations" because otherwise "the Court could simply have omitted the words 'to determine eligibility for benefits'" (quoting Petrilli, 910 F.2d at 1446)); see also Rowan, 119 F.3d at 436 (noting that benefits eligibility determinations require administrators to "determine both the facts underlying claims and whether those facts entitle claimants to benefits under the terms of the plan").

         As support for cabining de novo review only to plan interpretation, our court cited a reference early in Firestone to "actions challenging denials of benefits based on plan [term] interpretations." Pierre, 932 F.3d at 1556 (quoting Firestone, 489 U.S. at 108). Immediately following this language, however, the Court said it "express[ed] no view as to the appropriate standard of review for actions under other remedial provisions of ERISA." Firestone, 489 U.S. at 108. This suggests Firestone was articulating a general default standard of review for Section 1132(a)(1)(B) actions-the provision that allows judicial review of benefit denials-rather than making the fine distinction Pierre saw between the review of factual determinations and legal interpretations. See Luby, 944 F.2d at 1183.

         In addition to parsing the language used in Firestone, courts rejecting Pierre have noted the Supreme Court's observation that reading ERISA to provide a default standard of deference would undermine congressional intent as it "would afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted." Firestone, 489 U.S. at 113-14. That concern, especially as it is imbued with concerns about the conflicts that administrators sometimes have, would not seem to be greater for legal interpretation than for factual ones. Rowan, 119 F.3d at 436; Ramsey, 77 F.3d at 204.

         Other courts have also questioned the support Pierre found in trust law for its factual/legal dichotomy. Pierre reasoned that an administrator's factual determinations are inherently discretionary, in contrast to legal interpretations. It thus concluded that the Restatement (Second) of Trusts supports giving deference to an ERISA plan administrator's resolution of factual disputes even when the plan does not grant discretion. See Pierre, 932 F.2d at 1558 (citing Restatement (Second) of Trusts §§ 186(b), 187).[5] In a thorough examination of trust law, the Seventh Circuit disagreed with Pierre's assessment. It recognized that Firestone likely flipped the presumption of trust law, which traditionally assumes deference unless the trust says otherwise.[6] Ramsey, 77 F.3d at 203-05. But it found no trust law principles that distinguish between factual and legal determinations, as Pierre does. Id. It concluded that the critical trust law distinction for the scope of judicial review is between powers a trust document makes discretionary and those it makes mandatory. Id. at 203; see also Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 386 (2002) (noting that nothing in ERISA "requires that these kinds of decisions be so 'discretionary' in the first place" and "whether they are is simply a matter of plan design or the drafting of an HMO contract"). To illustrate why factual determinations do not always fall on the discretionary side of that divide, Ramsey points out that equity courts have long applied nondeferential review to a "host of factually specific decisions including reviews of accounts and investment decisions." 77 F.3d at 203; see also Rowan, 119 F.3d at 436 (noting that the Restatement Pierre cited does not distinguish between factual and legal determinations nor have "courts reviewing the actions of trustees").

         Pierre's analogy to the deference that reviewing courts afford agency decisions and a district court's factfinding has also been criticized. One reason courts have found the comparison inapt is that agencies and trial judges are required to apply a developed set of constitutional and statutory procedural protections. Ramsey, 77 F.3d at 205. They are also impartial whereas a plan administrator often has an incentive to reach decisions "advantageous to its own interests." Rowan, 119 F.3d at 436 (quoting Perez v. Aetna Life Ins. Co., 96 F.3d 813, 824 (6th Cir. 1996)); see also Ramsey, 77 F.3d at 205 (noting that for both factual and legal determinations made by agencies, the Administrative Procedure Act requires de novo review when procedural safeguards are lacking); cf. Langbein, Trust Law as Regulatory Law, at 1326 (explaining that ERISA law differs from trust law in the "crucial respect" that "[t]rust law presupposes that the trustee who administers a trust will be disinterested, in the sense of having no personal stake in the trust assets"). Indeed, an entire body of case law has arisen to address this concern about conflicts in ERISA law, as a conflict can influence the degree of deference afforded a plan even when it is granted discretionary authority. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008) (requiring that district courts "take account" of conflicts in evaluating benefits denials, giving them more weight when "circumstances suggest a higher likelihood that [the conflict] affected the benefits decision").

         The passage of time has cast doubt on another reason Pierre cited for giving deference: its prediction that de novo review of factual determinations would result in a vast number of trials that would burden courts and reduce the funds available to pay legitimate claims. 932 F.2d at 1559. But we no longer have to guess about the impact of de novo review as eight circuits have surpassed, or are nearing, two decades of experience under that regime. There is no indication that ERISA trials have depleted plan funds or overrun courts in those circuits, which are still able to grant summary judgment when the record warrants it. See, e.g., Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th Cir. 1998) (affirming the district court's grant of summary judgment after the district court conducted full de novo review of the administrator's disability benefits denial).

         And the interest in efficiency is not exclusively on the side of Pierre's bifurcated system of review. Abuse-of-discretion cases frequently result in litigation about the existence and extent of a conflict of interest, [7] which is one of the rare areas in which a plaintiff can often expand the administrative record with discovery. See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 263 (5th Cir. 2011) (explaining that our restrictive position on adding to the administrative record in ERISA cases does not prohibit a discovery request for information regarding the existence and extent of a conflict). Conditioning deference on whether a decision is characterized as legal or factual makes ERISA another victim of the "delusive simplicity of the distinction between questions of law and questions of fact [that] has been found a will-of-the-wisp by travelers approaching it from several directions." Nathan Isaacs, The Law and the Facts, 22 Colum. L. Rev. 1, 1 (1922); see also Walker, 180 F.3d at 1070 (recognizing that "[a]s a practical matter, factual findings and plan interpretations are often intertwined" and predicting that if review were bifurcated at the district court, there would be an "unnecessary cascade of litigation over whether an administrator's action was a plan interpretation or a factual determination").

         There is thus no evidence that joining the eight other circuits that have long applied de novo review to factual determinations will create an overwhelming burden on district courts even if that concern can override the "ready access to the Federal courts" that ERISA provides. 29 U.S.C. § 1001(b); see Firestone, 489 U.S. at 115 (concluding that "the threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard that we have already explained"). Moreover, as will be discussed, we maintain our precedent that largely limits judicial review to the record before the administrator, which mitigates concerns about the time and expense of litigation under a de novo standard.

         In the years since all these circuits have disagreed with Pierre, the Supreme Court has decided more ERISA cases. Although none has directly confronted our issue (and thus they have not served as a basis to reconsider Pierre absent en banc review), two indicate that there is no fact/law distinction for applying the default de novo standard. Glenn addresses how to assess conflicts of interest for plans that give administrators discretion. See 554 U.S. at 111-18. Humana and the dissent emphasize its comment about not wanting to "overturn Firestone by adopting a rule that in practice could bring about near universal review by judges de novo-i.e., without deference-of the lion's share of ERISA plan claims denials." Id. at 116. But that statement discussed the prospect of de novo review for plans that validly confer discretion on administrators. Id. at 115. That is not at issue here. Relevant to our question about the default standard of review is Glenn's list of background ERISA principles in the beginning of the opinion. Number "2" reaffirms Firestone's reading of trust law and the default standard of review: "Principles of trust law require courts to review a denial of plan benefits 'under a de novo standard' unless the plan provides to the contrary." Id. at 111 (quoting Firestone, 489 U.S. at 115). As in Firestone, the language broadly speaks of "a denial of plan benefits" without differentiating based on the nature of the denial. Id.

         The preemption decision in Rush Prudential HMO, Inc. v. Moran also supports the broader interpretation of Firestone's de novo review. 536 U.S. 355 (2002). Rush held that an Illinois law requiring independent medical review of certain benefit denials was not preempted. Id. at 384-87. That state law required independent evaluations for, among other things, the medical necessity determinations also made in this case. Id. at 383. The court rejected a preemption defense because ERISA does not provide a statutory standard of review. It then explained-in the context of assessing a statute that applies to factbound medical necessity determinations-that when Firestone filled in that statutory gap it "held that a general or default rule of de novo review could be replaced by deferential review if the ERISA plan itself provided that the plan's benefit determinations were matters of high or unfettered discretion." Id. at 385-86 (citing Firestone, 489 U.S. at 115). Again, the reference is to "benefit determinations" with no distinction for legal or factual rulings. And the Court went on to say that nothing in ERISA "requires that these kinds of decisions be so 'discretionary' in the first place" and "whether they are is simply a matter of plan design or the drafting of an HMO contract." Id. at 386. Rush thus recognizes and analyzes the Firestone dichotomy only on discretionary/nondiscretionary grounds, not factual/legal ones. It also is yet another Supreme Court rejection of the notion that ERISA administrators are inherently entitled to discretion (even if that is what trust law provides).

         Considering these cases and without having to endorse all the critiques other circuits have made of Pierre, on balance we conclude that they warrant changing course and adopting the majority approach-an approach the federal and Texas governments also support. We are also influenced by ERISA's strong interest in uniformity. See Gobeille v. Liberty Mut. Ins. Co., 136 S.Ct. 936, 943-44 (2016). Being on the lonely side of the lopsided split means that ERISA denials involving nondiscretionary plans are reviewed with more deference in Texas, Louisiana, and Mississippi than they are in the rest of the country. It even means that employees working for the same company with the same health or retirement plan may suffer different fates in court depending on the circuit where they reside.[8] Although sometimes there is virtue in being a lonely voice in the wilderness, in this instance we conclude that one really is the loneliest number. See Three Dog Night, One, on Three Dog Night (Dunhill 1969). We overrule Pierre and now hold that Firestone's default de novo standard applies when the denial is based on a factual determination.


         Changing the standard of review does not require us to alter our precedent concerning the scope of the record in ERISA cases. Although other circuits are unanimous on what the default standard of review is, they take a variety of positions on whether de novo review allows a party to expand the record beyond what was before the plan administrator. Some do not limit reviewing courts to that record. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir. 2006) (holding that limiting the judicial record to that before the plan administrator is not appropriate in de novo cases); Luby, 944 F.2d at 1184 (finding that limiting a district court to the record before a plan administrator "makes little sense" because it is contrary to the ordinary concept of de novo review). Others take a more restrictive view. See Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993) (admonishing district courts to avoid admitting additional evidence "absent good cause to do so"); Quesinberry, 987 F.2d at 1025-27 (permitting district courts to admit additional evidence only in "necessary" and "[e]xceptional circumstances").

         Our leading case in this area is Vega v. National Life Insurance Services, Inc., 188 F.3d 287 (5th Cir. 1999) (en banc), overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Under Vega, a plan administrator must identify evidence in the administrative record, giving claimants a chance to contest whether that record is complete. Id. at 299. Once the record is finalized, a district court must remain within its bounds in conducting a review of the administrator's findings, even in the face of disputed facts. Id. Vega permits departure from this rule only in very limited circumstances. One exception allows a district court to admit evidence to explain how the administrator has interpreted the plan's terms in previous instances. Id. (citing Wildbur v. ARCO Chem. Co., 974 F.2d 631, 639 n.15 (5th Cir. 1992)). Another allows a district court to admit evidence, including expert opinions, to assist in the understanding of medical terminology related to a benefits claim. Id. Those situations are not actually expanding the evidence on which the merits are evaluated but providing context to help the court evaluate the administrative record.

         Although some of Vega's reasoning for limiting the district court record to what was before the administrator depended on the abuse-of-discretion context, other interests it recognized support the same rule for de novo review. Among those is the interest in encouraging parties to resolve their dispute at the administrative stage. Id. at 300. A different standard of review also does not undermine Vega's observation that there is not a "particularly high bar to a party's seeking to introduce evidence into the administrative record." Id. And generally limiting the evidence to what was in front of the plan administrator when a dispute ends up in court allows for speedier resolution. Id.

         In short, overruling Pierre while adhering to Vega in the context of de novo review serves the twin ERISA goals of allowing for efficient yet meaningful judicial review. See 29 U.S.C. § 1001(b) (stating that ERISA is intended to provide "ready access to the Federal courts"); Firestone, 489 U.S. at 113-14 (explaining that a deferential default standard "would afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted"). Vega will continue to provide the guiding principles on the scope of the record for future cases that apply de novo review to fact-based benefit denials.


         This brings us back to Ariana's claim. Following Pierre, the district court concluded only that "Humana did not abuse its discretion in finding that Ariana M.'s continued treatment at Avalon Hills was not medically necessary after June 4, 2013." Ariana M., 163 F.Supp.3d at 442. That determination is now subject to de novo review. A different standard of review will sometimes lead to a different outcome, but there will also be many cases in which the result would be the same with deference or without it. We give no opinion on which is the case here, but leave application of the de novo standard to the able district court in the first instance.[9]

* * *

         The judgment of the district court is VACATED and REMANDED for further proceedings consistent with this opinion.

          E. GRADY JOLLY, Circuit Judge, dissenting, joined by JONES, SMITH, CLEMENT, and ELROD, Circuit Judges. OWEN, ...

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