RIPPLE, 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.
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 from a variety of maladies
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.
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 disbursement 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.
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 in question would be considered custodial in nature."
In October 2009, Ms. Becker appealed Humana's determination that it should not
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 and another resource, Dr. Wood concluded that "the services rendered to [Ms. Jeranek from] 10/20/06[
In April 2010, Ms. Becker submitted additional documentation 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."
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."
Humana denied the request for reconsideration.
In August 2010, Ms. Becker requested a second reconsideration 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.
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.
Ms. Becker timely appealed.
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 determine eligibility for and entitlement to Plan benefits,
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).
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.
It also states:
The Plan further states:
Further, the Plan states:
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 nursing services. The Plan defines "skilled nursing services" as:
Ms. Becker submits that Ms. Jeranek received skilled nursing services while at Nu-Roc. The Plan disputes this characterization and points to the independent physician 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, intermittent blood draws, minor skin care, and intermittent [physical therapy]."
Dr. Regan, who conducted the last medical review, noted that Ms. Jeranek's primary
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 services. 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 the physicians with whom it consulted. The single exception 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 maintenance of her skin integrity, her cardiac function, her diabetic control (which included medications, diet and activities), her
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 services." 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 Description suggests otherwise.
Even if we assume that Ms. Becker's medical expert employed the phrase "the care of skilled nursing personnel" to mean the provision of "skilled nursing services," 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 competing medical opinions so long as it is rationally supported 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 supervision of professionally trained and licensed nursing personnel," services that "require[d] specialized (professional) training," "observation and assessment" of a patient's medical needs 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."
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.
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 sufficiently 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 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 a nature to be the equivalent of the receipt of skilled nursing services. Ms. Becker does not invite our attention 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."
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 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 administrator 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 disambiguate ambiguous language is ...
Even accepting, for the sake of argument, that the Plan document contemplates an average number of doctor'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."
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."
Notably, a separate item on the list of circumstances that require inpatient treatment — the one immediately 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 personnel."
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."
Here, the language of the Plan itself provides some support for both interpretations. Supporting Ms. Becker's 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."
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.
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 interpretative 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 court." Id. (internal quotation marks omitted). Here, as before, Ms. Becker has not met her burden of demonstrating that there was no "rational support in the record" 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[]....").
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.
AFFIRMED.
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 Explanation of Benefits form that it mailed to Nu-Roc. This issue, too, was not raised before the district court and therefore is forfeited. 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" 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 documents relating to its initial approval of coverage for Ms. Jeranek's Phase One care at Nu-Roc. This, too, is an argument that went unraised before the district court and therefore 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 interpretation 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.
Id. at 7188-89 (emphasis in original) (endnotes omitted) (internal quotation marks omitted).
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.