Fifth Circuit Changes Law – District Courts Must Use De Novo Standard of Review | The Kennedy Forum

Fifth Circuit Changes Law – District Courts Must Use De Novo Standard of Review
October 18, 2018

By Jessica Grillo, J.D., Legal Advisor for The Kennedy Forum

In Ariana M. v. Humana Health Plan of Texas, Inc., Ariana M. sued Humana Health Plan of Texas, Inc. alleging that Humana had wrongfully denied benefits for 106 days of partial hospitalization to treat an eating disorder. Humana had paid for 49 days of partial hospitalization before determining that Ariana M. did not meet the criteria for continued coverage at that level. The U.S. District Court for the Southern District of Texas granted summary judgment for Humana, holding that it did not abuse its discretion in denying the benefits and Ariana M. appealed. On appeal, the Fifth Circuit acknowledged that its standard of review for ERISA cases, abuse of discretion, was at odds with that of most circuits and changed the law. The Fifth Circuit held that district courts are to review de novo a plan administrator’s decision to deny coverage under an ERISA plan. As such, the Fifth Circuit vacated the order granting summary judgment and remanded for the District Court to apply the de novo standard.

On remand, Ariana M. moved for summary judgment arguing that her partial hospitalization remained medically necessary after June 4, 2013, citing Dr. Rosko’s opinion that she was “at high risk of relapse and self-harm” if she left partial hospitalization. Ariana M. further argued that the Mihalik criteria employed by Humana to assess her case were inadequate and that Humana failed to provide them to her during the administrative process. In the alternative, Ariana M. argued that she met the Mihalik criteria between June 4 and September 18. Humana argued that Ariana M.’s claim for continued partial hospitalization received full and fair review and that the Mihalik criteria incorporated national standards of medical practice, as required under the plan. Humana further argued that Ariana M. was not a danger to herself or others, was medically stable, was on stable medication, was maintaining a healthy body weight, was confronting her problems and was not cutting herself or engaged in eating disorder behaviors that changed her weight. As such, Humana concluded that Ariana M. could be treated in intensive outpatient care near her home.

The Court reviewed the administrative record de novo to determine whether Humana wrongfully denied Ariana M. benefits for her partial hospitalization during the period of June 5 to September 18, after paying benefits from April 15 to June 4. In doing so, the Court found that the Mihalik criteria were consistent with Ariana M.’s plan and reflected national standards of care for mental health treatment, and that Ariana M.’s continued partial hospitalization was not medically necessary under the national standards. To view the full summary of the District Court’s decision, please visit

Key Takeaway from this Case

Sitting en banc, the Fifth Circuit overturned the panel decision and changed the standard of review of a plan administrator’s factual determinations from abuse of discretion to de novo. However, despite this change in law, the District Court for the Southern District of Texas still did not rule in favor of the Plaintiff. To view the full analysis by the Fifth Circuit, visit

The Kennedy Forum Legal Taskforce seeks to create positive case law in ERISA, Federal and State Parity and Disability cases, nationwide. The group is comprised of expert litigators in the field who share a common passion for equality and justice for those who have had their behavioral health insurance benefits wrongfully denied.

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