Krauss v. Oxford Health Plans, Inc., No. 06-0343 (2d Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on February 26, 2008.
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06-0343-cv Krauss v. Oxford Health Plans, Inc. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 5 (Argued: February 7, 2007 Decided: February 26, 2008 Errata Filed: March 25, 2008) 6 Docket No. 06-0343-cv 7 ------------------------------------- 8 Daniel J. Krauss and Geri S. Krauss, 9 Plaintiffs-Appellants, 10 - v - 11 12 Oxford Health Plans, Inc., Oxford Health Plans (NY), Inc. and Oxford Health Insurance, Inc., 13 Defendants-Appellees. 14 ------------------------------------- 15 16 Before: 17 WALKER and SACK, Circuit Judges, and DANIELS, District Judge.* Plaintiffs, participants in one of defendants' health 18 insurance plans, allege various violations of the Employee 19 Retirement Income Security Act, 29 U.S.C. § 1001 et seq., and the 20 Women's Health and Cancer Rights Act, 29 U.S.C. § 1185(a). 21 United States District Court for the Southern District of New 22 York (Colleen McMahon, Judge) granted summary judgment to the 23 defendants. * The We, like the district court, conclude, inter alia, The Honorable George B. Daniels, of the United States District Court for the Southern District of New York, sitting by designation. 1 that the defendants did not violate either statute or the terms 2 of the insurance plan in declining to reimburse the plaintiffs 3 (a) for more than $30,000 of Mrs. Krauss's $40,000 doctor's bill 4 for bilateral breast reconstruction surgery where the maximum 5 reimbursement for a single such surgery would have been $20,000, 6 or (b) for private-duty nursing. 7 Affirmed. 8 9 GERI S. KRAUSS, Esq., New York, NY, Pro Se, for Plaintiffs-Appellees.** 10 11 12 13 14 PETER P. McNAMARA, Rivkin Radler LLP (Cheryl F. Korman, of counsel), Uniondale, NY, for DefendantsAppellants. SACK, Circuit Judge: 15 The plaintiffs, Geri S. Krauss and Daniel J. Krauss, 16 wife and husband, are members of an employer-provided health care 17 plan that is governed by the provisions of the Employee 18 Retirement Income Security Act, 29 U.S.C. § 1001 et seq. 19 ("ERISA"). 20 Health Plans (NY), Inc., and Oxford Health Insurance, Inc. 21 (collectively, "Oxford"), administer claims for benefits under 22 the plan. 23 The defendants, Oxford Health Plans, Inc., Oxford In April 2003, Geri Krauss was diagnosed with breast 24 cancer. Shortly thereafter, she underwent a double mastectomy 25 and bilateral breast reconstruction surgery. 26 procedures were performed in a single operative session by two ** The surgical Mrs. Krauss, a member of the bar, is also acting as counsel for her husband Daniel and not pro se in that regard. 2 1 different, unaffiliated doctors, neither of whom was a member of 2 the plan's provider network. 3 Krauss received care from private-duty nurses. 4 for both the surgery and post-operative care themselves and 5 sought reimbursement for those expenses from Oxford. 6 refused payment for one-fourth of the cost of the breast 7 reconstruction surgery and all expenses incurred for private-duty 8 nursing. 9 Following the operation, Mrs. The Krausses paid Oxford After exhausting available administrative appeals, the 10 Krausses filed this lawsuit in the United States District Court 11 for the Southern District of New York. 12 denial of full reimbursement for the bilateral surgery and 13 private-duty nursing care violated the Women's Health and Cancer 14 Rights Act, 29 U.S.C. § 1185b ("WHCRA"), as well as various ERISA 15 provisions. 16 failing to make certain required disclosures and failing to 17 respond to various grievances in the manner and time periods set 18 forth by their plan. 19 They allege that Oxford's They further allege that Oxford violated ERISA by Following cross-motions for summary judgment, the 20 district court (Colleen McMahon, Judge) ruled in favor of Oxford 21 on all claims. 22 2d 416 (S.D.N.Y. 2005). 23 effects on the Krausses of the bureaucratic misadventures to 24 which they were subjected by Oxford, we must, and do, nonetheless 25 affirm. 26 Krauss v. Oxford Health Plans, Inc., 418 F. Supp. Although we are not unsympathetic to the BACKGROUND 3 1 In April 2003, Mrs. Krauss was diagnosed with breast 2 cancer. Her doctors, who were not members of Oxford's provider 3 network, recommended that she undergo a double mastectomy and 4 bilateral breast reconstruction,1 to be performed in a single 5 surgical session. 6 approved in advance) the breast-reconstruction portion of the 7 surgery,2 stating that "[p]ayment for approved services [would] 8 be consistent with the terms, conditions, and limitations of 9 [Mrs. Krauss's] Certificate of Coverage, the provider's contract, On May 5, 2003, Oxford "pre-certified" (i.e., 10 as well as with Oxford's administrative and payment policies." 11 Letter from Patricia Robik to Geri Krauss dated May 5, 2003. 12 May 13, 2003, Mrs. Krauss underwent bilateral mastectomy and 13 reconstruction surgery. 14 suggestion and the plaintiffs' request, private-duty nurses 15 oversaw Mrs. Krauss's recovery.3 On Following the surgery, upon the doctors' 1 According to Oxford's Rule 56.1 statement in the district court, "Oxford's written policy for Bilateral Surgery . . . states that 'Bilateral Surgery is defined by the Centers for Medicare and Medicaid Services . . . as procedures performed on both sides of the body during the same operative session or on the same day.'" Statement of Material Facts on Behalf of Defendants' Motion for Summary Judgment dated April 15, 2005, at 9, ¶ 46. The plaintiffs do not dispute this definition. 2 There is no dispute with respect to Oxford's reimbursement to the Krausses for doctors' charges for the double mastectomy. 3 Mrs. Krauss experienced two post-operative complications, one of which required emergency surgery nine days after the initial May 13, 2003 operation. The Krausses experienced some difficulty receiving payments for the emergency surgery, as well as for some other care that occurred thereafter. Reimbursement for care related to these services, however, was eventually provided, see Krauss, 418 F. Supp. 2d at 423, and therefore is (continued...) 4 1 Plaintiffs' Health Care Plan 2 The Krausses were at all relevant times participants in 3 an ERISA-covered employee health insurance plan called the 4 "Freedom Plan--Very High UCR" (the "Plan"). 5 established and sponsored by Mr. Krauss's employer, and claims 6 for benefits under the Plan were administered by Oxford. 7 Plan's terms are set forth in three documents -- the Summary of 8 Benefits, the Certificate of Coverage (for payment of physicians 9 and other providers who were part of the Oxford network), and the 10 Supplemental Certificate of Coverage ("Supplemental Certificate") 11 (for out-of-network care). 12 concerns the use of out-of-network providers including the 13 surgeons who operated on Mrs. Krauss, it is the document of 14 primary relevance for purposes of this appeal. 15 utilizing an out-of-network provider must herself pay a higher 16 portion of her medical expenses from her own pocket than must a 17 member receiving care from in-network providers. 18 The Plan was The Because the Supplemental Certificate A Plan member Oxford limits its plans' costs for medical services by, 19 inter alia, (1) restricting the services that the insurance plan 20 covers; (2) imposing deductibles and coinsurance payments; and 21 (3) paying medical expenses in accordance with a schedule of 22 "usual, customary, and reasonable" ("UCR") fees for various 23 medical services, Suppl. Certificate, Sec. I. ("How the Freedom 24 Plan® Works"), subsec. 7. Charges in excess of the UCR rate or 3 (...continued) not at issue on this appeal. 5 1 excluded from coverage by a plan, as well as the deductibles and 2 coinsurance charges, are paid by the insured. 3 The Plan expressly excludes "[p]rivate or special duty 4 nursing" from Plan coverage. 5 Limitations"), ¶ 28. 6 limit on coinsurance and deductible charges at the time of Mrs. 7 Krauss's surgery, so these charges did not reduce the amount of 8 payments they received. 9 schedule, however. 10 Id. at Sec. IV ("Exclusions and The Krausses had reached the Plan's annual They remained subject to the Plan's UCR The Supplemental Certificate makes several references 11 to the UCR schedule. 12 Obligations," for example, states: 13 14 15 16 17 18 19 20 21 The subsection entitled "Your Financial A UCR schedule is a compilation of maximum allowable charges for various medical services. They vary according to the type of provider and geographic location. Fee schedules are calculated using data compiled by the Health Insurance Association of America (HIAA)[4] and other recognized sources. What We [sic] Cover/reimburse is based on the UCR. 22 Id. at Sec. I, subsec. 7. Section XII, "Definitions," provides 23 further that the UCR charge is "[t]he amount charged or the 24 amount We [sic] determine to be the reasonable charge, whichever 25 is less, for a particular Covered Service in the geographical 26 area it is performed." Id. at Sec. XII. 27 According to the Supplemental Certificate, after Plan 28 members receive care from an out-of-network provider, they must 29 pay for services themselves and file a claim for reimbursement 4 The HIAA now does business under the name Ingenix. 6 1 with Oxford. 2 paid within sixty days of their receipt. 3 Claims for services covered by the Plan are to be Plan members who wish to challenge the amount of their 4 reimbursement may seek review through Oxford's grievance 5 procedure. 6 first addressed by Oxford's "Issues Resolution Department" -- the 7 "First-Level Appeal." 8 to Oxford's "Grievance Review Board" -- the "Second-Level 9 Appeal," and then to a committee appointed by the Board of Under that procedure, members' written grievances are Members who remain dissatisfied may appeal 10 Directors. See Certificate of Coverage, Sec. VI.A; Letter from 11 Celeste Vangilder to Geri Krauss dated Dec. 1, 2003, at 2. 12 Plaintiffs' Claims History 13 Dr. Mark Sultan charged the Krausses $40,000 for Mrs. 14 Krauss's breast reconstruction procedure and $200 for a pre- 15 operation consultation. 16 of $8,300 for her post-operative care. 17 The private-duty nurses charged a total The Krausses timely filed for reimbursement for both 18 sets of services from Oxford. In response, on June 13, 2003, 19 they received a check from Oxford in the amount of $30,200 -- 20 $30,000 for the double-breast reconstruction and the $200 21 consultation fee. 22 ("EOB") did not explain why the procedure was not fully 23 reimbursed. 24 was $30,200 and that "[t]his claim reflects industry standards 25 for payment of services which include two surgical procedures." The accompanying Explanation of Benefits It stated only that the maximum allowable benefit 7 1 EOB dated June 13, 2003, at 1. 2 absence of reimbursement for the private-duty nursing. 3 Oxford did not explain the On November 10, 2003, the Krausses filed a grievance 4 with Oxford for the $10,000 of Dr. Sultan's fee and for the 5 $8,300 cost for private-duty nursing that had not been 6 reimbursed. 7 Krausses' grievance as to the bilateral reconstruction surgery 8 fee, "as the cpt code 19364-50x1[5] was paid at the usual and 9 customary rate, because we have participating providers By letter dated December 1, 2003, Oxford denied the 10 performing the procedure effectively, and there is no medical 11 reason as to why to grant [sic] an exception outside the 12 UCR . . . ." 13 Dec. 1, 2003, at 1. 14 Letter from Celeste Vangilder to Geri Krauss dated By letter dated December 3, 2003, Oxford notified the 15 Krausses that it had referred the claim for the private-duty 16 nursing care to its claims department. 17 thereafter denied the Krausses' claim for private-duty nursing 18 charges on the ground that private-duty nursing is not covered by 19 the Plan, but the Krausses submit that they never received a 20 report of Oxford's benefits determination in this regard. 5 Oxford contends that it CPT is the commonly used abbreviation for "Current Procedural Terminology," a "system of terminology [that] is the most widely accepted medical nomenclature used to report medical procedures and services under public and private health insurance programs." American Medical Ass'n, CPT Process -- How a Code Becomes a Code, http://www.ama-assn.org/ama/pub/ category/3882.html (updated Oct. 30, 2007; last visited Feb. 25, 2008). CPT code 19364 is the code for "breast reconstruction with free flap." See Letter from Celeste Vangilder to Geri Krauss dated Dec. 1, 2003, at 1. 8 1 On December 9, 2003, the Krausses, in two letters, 2 requested additional information in aid of filing their "Second- 3 Level" appeal regarding the unpaid portion of Dr. Sultan's 4 operating fee. 5 denial letters dated December 11, 2003, January 21, 2004, and 6 January 22, 2004. 7 network providers could have performed the surgery and that 8 "there is no medical reason . . . to grant an exception outside 9 the UCR, Letter from Celeste Vangilder to Geri Krauss dated Dec. Oxford responded with three additional cursory These letters stated, respectively, that in- 10 11, 2003, at 1; that "[n]o additional payment will be 11 forthcoming" because Oxford had determined the claim was paid 12 "correctly at the [UCR]," Letter from Lorraine Paquette to Geri 13 Krauss dated Jan. 21, 2004, at 1; and that, once again, "no 14 additional payment [will] be forthcoming," this time because 15 Oxford's "Medical Management Department confirmed that 16 participating providers were available to treat your condition," 17 Letter from Clarissa Rodriguez to Geri Krauss dated Jan. 22, 18 2004, at 1. 19 the details of the CPT code used, how the UCR was calculated, or 20 on which Plan terms Oxford relied in denying their claim. 21 Oxford did not respond to the Krausses' request for On January 26, 2004, the Krausses filed a Second-Level 22 appeal with Oxford's Grievance Review Board, asserting, among 23 other things, that Oxford had not complied with ERISA disclosure 24 requirements. 25 19, 2004, Oxford acknowledged its receipt of the Krausses' 26 December letters and enclosed various Oxford documents that Some three weeks later, by letter dated February 9 1 previously had not been disclosed to them, including its 2 Bilateral Surgery Policy. 3 identify bilateral procedures with the "modifier -50" attached to 4 the standard billing code for the procedure at issue and 5 indicates that procedures so identified would "be reimbursed at 6 one and a half times the rate of the single procedure." 7 "Bilateral Surgery Policy," effective July 14, 2003, at 1. 8 documents also disclosed that Oxford had sent Dr. Sultan, but not 9 the Krausses, an EOB related to his operating fee for the This policy requires providers to Oxford The 10 bilateral breast reconstruction surgery that explained that the 11 "full [UCR] allowance is provided for the primary procedure and 12 50% of the UCR amount is allowed for the subsequent procedure." 13 Explanation of Benefits, June 13, 2003, at 1. 14 One week later, on February 26, 2004, the Krausses 15 responded by letter contending that the Bilateral Surgery Policy 16 was not set forth in their Plan's terms, had not been disclosed 17 in Oxford's previous denial letters, violated state and federal 18 laws requiring full compensation for post-mastectomy breast 19 reconstruction, and had not been applied in other bilateral 20 surgeries Mrs. Krauss had undergone. 21 By letter dated March 11, 2004, Oxford denied the 22 Krausses' Second-Level appeal. Oxford asserted, for the first 23 time, that the appropriate UCR under the Plan is "the level that 24 90% of all doctors (not 100% of all doctors) in the location 25 would accept as full payment for the service," Letter from Karen 26 Cofield to Geri Krauss dated Mar. 11, 2004, at 1, and that the 10 1 UCR for CPT code 19364-50 was $20,000, id. at 2. 2 reimbursement the Krausses received for the reconstruction 3 surgery represented 150% of the UCR for a single reconstruction. 4 The denial letter further stated that Oxford's Bilateral Surgery 5 Policy was "consistent with well-established industry standards 6 and in accordance with New York state insurance regulations," and 7 was "not conceal[ed] . . . , but rather, [had been] 8 publicize[d] . . . in its payment policies and on its 9 explanations of benefits." Id. at 1-2. The $30,000 Oxford further stated 10 that its disclosures "far exceed[ed]" what ERISA requires, id. at 11 2, and that references in earlier letters to the availability of 12 in-network providers referred to its understanding that the 13 Krausses were requesting an "in-network exception," i.e., an 14 exception to regular UCR rates that applies only if, unlike the 15 procedure undergone by Mrs. Krauss, no in-network provider is 16 available to perform it, id. at 3. 17 The ERISA Action 18 The Krausses responded to the denial of their 19 administrative appeals by instituting this action. 20 complaint asserts claims for: (1) recovery of unpaid benefits 21 under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), on the 22 grounds that Oxford's denial of benefits violated the WHCRA and 23 the terms of the Plan; (2) breach of fiduciary duty in violation 24 of ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), on the grounds that 25 Oxford failed to provide benefits owed to the Krausses and 26 improperly handled their claims for reimbursement and their 11 Their 1 appeals; (3) statutory damages under ERISA §§ 502(a)(3)(B)(1), 2 (c)(1), 29 U.S.C. §§ 1132(a)(3)(B)(1), (c)(1), in light of 3 Oxford's alleged failure to make timely disclosures and to 4 provide accurate reasons for the denials of their claims; (4) a 5 declaratory judgment barring the application of Oxford's 6 Bilateral Surgery Policy to post-mastectomy breast reconstruction 7 surgeries; and (5) costs and attorney's fees. 8 9 The parties filed cross-motions for summary judgment. The district court granted Oxford's motion in all respects and 10 denied the plaintiffs'. 11 Policy did not violate either the WHCRA or the terms of the Plan, 12 Krauss, 418 F. Supp. 2d at 416, 425-32, and that the Krausses 13 could not recover the costs of the private-duty nurses because 14 private-duty nursing is expressly excluded from Plan coverage, 15 id. at 432-33. 16 claim, the court determined that insofar as it was a demand for 17 unpaid benefits, it was nothing more than a re-assertion of their 18 claims for statutory damages. 19 further concluded that ERISA's statutory disclosure requirements 20 did not apply because Oxford was a claims administrator with 21 respect to the Krausses' claims, not a plan administrator. 22 at 434. 23 As for the Krausses' breach of fiduciary duty Id. at 433. The district court Id. It also denied the request for an award of legal fees. This appeal followed. DISCUSSION 24 25 26 It concluded that the Bilateral Surgery I. Standard of Review of the District Court's Determination 12 1 "We review de novo a district court's ruling on 2 cross-motions for summary judgment, in each case construing the 3 evidence in the light most favorable to the non-moving party." 4 White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 5 163, 167 (2d Cir. 2007). 6 II. 7 ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), Claims for Unpaid Benefits 8 permits a participant or beneficiary of an ERISA-covered benefits 9 plan to bring a civil action "to recover benefits due to him 10 under the terms of his plan," id. 11 the unpaid portion of Dr. Sultan's breast reconstruction surgery 12 fee and the costs of private-duty nursing care, benefits they say 13 were owed to them either under the WHCRA or the terms of the 14 Plan. 15 The Krausses seek recovery of As a threshold matter, the Krausses argue that the 16 district court erred in reviewing Oxford's benefits determination 17 and their arguments with respect thereto under the arbitrary and 18 capricious standard. 19 was not discretionary, they say, the court's review should have 20 been de novo. 21 Oxford's application of its Bilateral Surgery Policy to Mrs. 22 Krauss's breast reconstruction surgery and its refusal to 23 reimburse them for the costs of post-operative private-duty 24 nursing care violate the terms of the WHCRA; (2) that even if the 25 Bilateral Surgery Policy complies with the WHCRA, its application 26 to the Krausses violates the terms of the Plan: it is not a UCR Because Oxford's UCR benefit determination On the merits, the Krausses contend (1) that 13 1 determination; was not properly disclosed; and was based upon an 2 underlying HIAA-based UCR figure derived from a sample size too 3 small to be meaningful; and (3) that the refusal to reimburse the 4 costs incurred for private-duty nursing was contrary to the 5 Plan's terms because the service was medically necessary and 6 within the Plan's description of what it covers under the WHCRA. 7 A. 8 9 Standard of Review of Oxford's Actions "[A] denial of benefits challenged under [ERISA § 502(a)(1)(B)] is to be reviewed under a de novo standard unless 10 the benefit plan gives the administrator or fiduciary 11 discretionary authority to determine eligibility for benefits or 12 to construe the terms of the plan." Firestone Tire & Rubber Co. 13 v. Bruch, 489 U.S. 101, 115 (1989). If the insurer establishes 14 that it has such discretion, the benefits decision is reviewed 15 under the arbitrary and capricious standard. 16 Health Plan, 287 F.3d 96, 104 (2d Cir. 2002). 17 construed in favor of the plan beneficiary. 18 19 20 21 22 23 24 25 26 27 Fay v. Oxford Ambiguities are Id. A reservation of discretion need not actually use the words "discretion" or "deference" to be effective, but it must be clear. Examples of such clear language include authorization to "resolve all disputes and ambiguities," or make benefits determinations "in our judgment." In general, language that establishes an objective standard does not reserve discretion, while language that establishes a subjective standard does. 28 Nichols v. Prudential Ins. Co. of America, 406 F.3d 98, 108 (2d 29 Cir. 2005) (quoting Kinstler v. First Reliance Standard Life Ins. 30 Co., 181 F.3d 243, 251 (2d Cir. 1999)). 14 1 We agree with the district court that the Plan 2 conferred discretionary authority on Oxford to make benefits 3 determinations. 4 Certificate governing care provided by out-of-network providers 5 are relevant. 6 Provisions" and states that Oxford "may adopt reasonable 7 policies, procedures, rules, and interpretations to promote the 8 orderly and efficient administration of this Certificate . . . ." 9 Suppl. Certificate, Sec. XI ("General Provisions"), ¶ 10. Two clauses within the Plan's Supplemental The first appears under the heading "General The 10 second is within the definition of UCR charges itself. 11 that the UCR charge is either "[t]he amount charged or the amount 12 We [sic] determine to be the reasonable charge, whichever is 13 less . . . ." 14 It states Id. Sec. XII ("Definitions"). Despite a lack of clarity in our precedents as to what 15 language conveys sufficient discretion to an administrator to 16 require courts' "arbitrary and capricious" rather than de novo 17 review of its actions, we conclude that the quoted language of 18 the Oxford Plan does so.6 19 policies, procedures, rules and interpretations to promote" the 20 administration of a Certificate of Coverage has been cited as an 21 example of the requisite discretionary authority by the Fourth 22 Circuit, see Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 6 The ability to "adopt reasonable "[A]ppellate judges are divided on the issue of what language suffices to convey to plan administrators the discretionary authority that warrants the more deferential arbitrary and capricious standard of review." Kinstler, 181 F.3d at 251. As a result, circuits have offered different conclusions regarding the discretionary authority conveyed by the same or similar statutory language. Id. (citing examples). 15 1 523 (4th Cir. 2000) (citing Bernstein v. CapitalCare, Inc., 70 2 F.3d 783, 788 (4th Cir. 1995)). 3 authority to "resolve all disputes and ambiguities relating to 4 the interpretation" of a benefits plan, language that we have 5 previously characterized as sufficient to trigger arbitrary and 6 capricious, rather than de novo, review. 7 Nat'l Indus. Group Pension Plan, 76 F.3d 462, 466 (2d Cir. 1996). It also seems to us akin to Ganton Techs., Inc. v. 8 Moreover, Oxford's UCR definition, which provides that 9 the UCR charge is the lesser of the amount charged or the amount 10 Oxford "determine[s] to be the reasonable charge," confers upon 11 Oxford discretionary authority regarding one of the Plan terms 12 here at issue: UCR charges. 13 the bestowal of discretion by use of the verb "determine" provide 14 little guidance. 15 the benefit plan there considered "invoke[d] discretion by 16 defining 'Medically Necessary' as those services which, 'as 17 determined by [the] . . . Medical Director,' meet four listed 18 requirements" (emphasis in original) (second alteration in 19 original) (quoting benefits plan)), with Nichols, 406 F.3d at 20 108-09 (finding, without citation to Fay, that plan language to 21 the effect that a disability "exists when [the insurer] 22 determines that" each of several specified conditions was met did 23 not confer discretionary authority because the language required 24 that the insurer's decisionmaking power be constrained by 25 "objective standards"). 26 terms of a benefits plan grant the defendant the right to To be sure, our opinions regarding Compare Fay, 287 F.3d at 104 (concluding that But we think that where, as here, the 16 1 "determine" what constitutes a "reasonable charge," and the only 2 source that might bear on what is reasonable is "data compiled by 3 [HIAA] and other recognized [but unspecified] sources," Suppl. 4 Certificate, Sec. I, subsec. 7 ("Your Financial Obligations"), 5 the Plan confers discretion to determine which sources to rely 6 upon in determining the UCR charge in any given circumstance. 7 Oxford exercised that discretion in applying the 8 Bilateral Surgery Policy to the Krausses' claim for benefits 9 related to Dr. Sultan's fee. Accordingly, we will decide whether 10 doing so was arbitrary or capricious, that is, if it was "without 11 reason, unsupported by substantial evidence or erroneous as a 12 matter of law."7 13 and citations omitted); see also Miller v. United Welfare Fund, 14 72 F.3d 1066, 1072 (2d Cir. 1995) ("Substantial evidence . . . is 15 such evidence that a reasonable mind might accept as adequate to 16 support the conclusion reached by the decisionmaker and requires 7 Fay, 287 F.3d at 104 (internal quotation marks The Krausses' additional arguments for de novo review are without merit. To contend that Oxford's application of the Bilateral Surgery Policy was not a discretionary decision because it simply "mechanically applied a formula," Appellants' Br. at 53, ignores the fact that the decision to enact the Bilateral Surgery Policy was itself a discretionary decision in the first instance. And the fact that the New York State Insurance Department at one time concluded that the use of discretionary clauses "encourage misrepresentation or are unjust, unfair, inequitable, misleading, deceptive, or contrary to law or to the public policy" of New York, see Circular Letter No. 8 (2006), Mar. 27, 2006, available at http://www.ins.state. ny.us/cl06_08.htm (last visited Jan. 4, 2008), is irrelevant -that conclusion was later withdrawn, id., and the proposed regulations would not apply retroactively to the Krausses' claims, see Circular Letter No. 14 (2006), June 29, 2006, available at http://www.ins.state.ny.us/cl06_14.htm (last visited Feb. 25, 2008). 17 1 more than a scintilla but less than a preponderance." (internal 2 quotation marks and citations omitted)). 3 Separately, the Krausses' challenge under the WHCRA, 4 see section II.B., below, raises questions of law which we review 5 de novo. 6 arbitrary and capricious if it is legally erroneous). 7 See Miller, 72 F.3d at 1072 (benefits determination is With respect to the Krausses' claim for reimbursement 8 for private-duty nursing care, however, we assume, viewing the 9 facts in the light most favorable to them as we must, that Oxford 10 failed to inform them regarding the benefits determination made 11 with respect to the nurses. 12 since-revised regulations, that failure to respond to a plan 13 participant's claim within the time-frame established by the 14 Department of Labor's regulations rendered the claim "deemed 15 denied" and the participant's subsequent ERISA challenge to the 16 benefits determination subject to de novo review. 17 406 F.3d at 105, 109 (relying on 29 C.F.R. § 2560.503-1(h)(4) 18 (1999)). 19 denied" provision with one that, upon a defendant's failure to 20 follow regulatory time frames, deems a plaintiff's administrative 21 remedies exhausted, see 29 C.F.R. § 2560.503-1(l), and neither we 22 nor any other circuit has, to our knowledge, addressed whether de 23 novo review similarly applies under the revised regulations, we 24 join our sister circuits in delaying resolution of the question 25 for another day. 26 229, 236 (1st Cir. 2006); Gatti v. Reliance Std. Life Ins. Co., We previously concluded, based on See Nichols, Although amended regulations have replaced the "deemed See Bard v. Boston Shipping Ass'n, 471 F.3d 18 1 415 F.3d 978, 982 n.1 (9th Cir. 2005); Finley v. Hewlett-Packard 2 Co. Employee Benefits Org. Income Protection Plan, 379 F.3d 1168, 3 1175 n.6 (10th Cir. 2004). 4 assuming a de novo standard of review applies, we would deny the 5 Krausses' claim for compensation for the private-duty nursing 6 care under ERISA section 502(a)(1)(B). 7 B. The WHCRA 8 9 For the reasons stated below, even 1. Dr. Sultan's Fees. The Krausses contend that under the WHCRA, the Plan was obligated to provide full reimbursement 10 to them for Dr. Sultan's fee for Mrs. Krauss's bilateral 11 reconstructive surgery. 12 reimbursement of the costs associated with the private-duty 13 nursing care provided to her because it was pursuant to a medical 14 decision made by her physician regarding the "manner" in which 15 her breast reconstruction surgery would be carried out. 16 They also argue that the WHCRA requires The WHCRA provides, in relevant part, that a group 17 health plan that provides insurance coverage for mastectomies 18 must also provide coverage for a subsequent breast reconstruction 19 surgery: 20 21 22 23 24 25 26 (a) In general. A group health plan . . . shall provide, in a case of a participant or beneficiary who is receiving benefits in connection with a mastectomy and who elects breast reconstruction in connection with such mastectomy, coverage for -- 27 28 29 30 31 32 (1) all stages of reconstruction of the breast on which the mastectomy has been performed . . . in a manner determined in consultation with the attending physician and the patient. Such coverage may be subject to annual 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 deductibles and coinsurance provisions as may be deemed appropriate and as are consistent with those established for other benefits under the plan or coverage. . . . . . . . (d) Rule of construction. Nothing in this section shall be construed to prevent a group health plan or a health insurance issuer offering group health insurance coverage from negotiating the level and type of reimbursement with a provider for care provided in accordance with this section. 29 U.S.C. § 1185b (emphasis added). As to their claim for reimbursement of Dr. Sultan's 16 fee, the gist of the Krausses' arguments is that the statutory 17 language providing that insurers may limit their coverage by 18 requiring "annual deductibles and coinsurance" precludes insurers 19 from applying any other "cost-sharing" mechanisms that would 20 render plan participants responsible for a portion of the 21 procedure's costs. 22 legislation provides explicitly for the use of other "cost- 23 sharing" mechanisms in addition to deductibles and coinsurance, 24 they insist, the statutory maxim expressio unius est exclusio 25 alterious ("to express one thing is to exclude another") applies: 26 Congress, by omitting the term "cost-sharing" from the WHCRA, 27 must have intended to preclude insurers from imposing cost- 28 sharing mechanisms, such as the UCR-limited reimbursement at 29 issue here, to post-mastectomy breast reconstruction surgeries. 30 31 Because the statutory language of similar We agree with Oxford, however, that the WHCRA requires only that insurers "cover[]" such surgeries in a manner 20 1 "consistent" with the policies "established for other benefits 2 under the plan." 3 expressing one item of a commonly associated group or series 4 excludes another left unmentioned is only a guide, whose 5 fallibility can be shown by contrary indications that adopting a 6 particular rule or statute was probably not meant to signal any 7 exclusion of its common relatives." 8 U.S. 55, 65 (2002). 9 of two or more terms or things that should be understood to go 29 U.S.C. § 1185b(a). "[T]he canon that United States v. Vonn, 535 10 hand in hand . . . ." 11 "The canon depends on identifying a series 73, 81 (2002). 12 Chevron U.S.A. Inc. v. Echazabal, 536 U.S. Here, the Krausses cite the Newborns' and Mothers' 13 Health Protection Act and the Mental Health Parity Act, Pub. L. 14 No. 104-204, §§ 601-606, 701-703, 110 Stat. 2874, 2935-50 (1996) 15 (codified at 29 U.S.C. §§ 1185-1185a), in support of their 16 contention that Congress intended under the WHCRA to preclude 17 insurers from imposing cost-sharing mechanisms apart from 18 deductibles and coinsurance. 19 of Construction" subsections that specifically refer to "cost- 20 sharing," whereas the WHCRA refers only to "annual deductibles 21 and coinsurance provisions," without reference to other cost- 22 sharing devices. 23 These two provisions contain "Rule The Newborns' and Mothers' Health Protection Act 24 provides that "deductibles, coinsurance, or other cost-sharing" 25 mechanisms are permissible so long as the mechanism imposed is 26 not "greater than such coinsurance or cost-sharing" required for 21 1 the portion of a newborn's or mother's hospital stay following 2 birth that would have been covered regardless of the Act's 3 provisions. 4 shall be construed as preventing a group health plan or issuer 5 from imposing deductibles, coinsurance, or other cost-sharing in 6 relation to benefits . . . except that such coinsurance or other 7 cost-sharing . . . may not be greater than such coinsurance or 8 cost-sharing for any preceding portion of [the hospital] stay."). 9 The Mental Health Parity Act, in turn, references "cost sharing, 10 limits on numbers of visits or days of coverage, and requirements 11 relating to medical necessity" as examples of "the terms and 12 conditions . . . relating to the amount, duration, or scope of 13 mental health benefits," which the Act, Congress said, should not 14 be construed as "affecting." 15 section shall be construed . . . as affecting the terms and 16 conditions (including cost-sharing, limits on numbers of visits 17 or days of coverage, and requirements relating to medical 18 necessity) relating to the amount, duration, or scope of mental 19 health benefits under the plan or coverage . . . ."). 20 the WHCRA refers to "annual deductibles and coinsurance 21 provisions" that "may" be imposed so long as they are "consistent 22 with those established for other benefits under the plan or 23 coverage." 24 Act should not be interpreted to preclude health plans from 25 negotiating with providers regarding the "level and type of 29 U.S.C. § 1185(c)(3) ("Nothing in this section Id. § 1185b(a). Id. § 1185a(b)(2) ("Nothing in this Similarly, The WHCRA further provides that the 22 1 reimbursement . . . for care provided in accordance with [the 2 WHCRA]." 3 Id. § 1185b(d). These provisions are plainly not an "associated group 4 or series" that would be "understood to go hand in hand," such 5 that "it is fair to suppose that Congress considered the unnamed 6 possibility [of other cost-sharing mechanisms] and meant to say 7 no to it." 8 (2003) (internal quotation marks and citations omitted); see also 9 id. (stating that the series must warrant "the inference that Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 10 items not mentioned were excluded by deliberate choice, not 11 inadvertence"). 12 no more than use similar language to express essentially the same 13 idea: that the three statutory provisions -- which create a 14 substantive floor for three different types of coverage -- should 15 not be construed to create specific rules regarding the means by 16 which the statutorily mandated categories of services are 17 provided or to permit insurers to impose upon plan beneficiaries 18 additional cost-sharing responsibilities beyond what their plan 19 already requires for similar benefits. 20 Each of the subsections the Krausses cite does The legislative history of the WHCRA supports our 21 understanding that Congress's reference to "annual deductibles 22 and coinsurance" was intended to be illustrative, rather than 23 exclusionary. 24 not mention the words "cost-sharing," "deductible," or 25 "coinsurance." 26 enacted the legislation to ensure that women who underwent The relevant pages of the Congressional Record do See 144 Cong. Rec. S.4644-50 (1998). 23 Congress 1 mastectomies would not be denied coverage for reconstructive 2 surgery on the ground that it was cosmetic. 3 Id. at S.4644, 4650. The Krausses point to the stated Congressional goal of 4 making women "complete" and "whole" following their mastectomies, 5 see id. at S.4649, and argue that this statutory purpose supports 6 interpreting the statutory provision for deductibles and 7 coinsurance to preclude other cost-sharing devices. 8 think that this legislative goal forecloses cost-sharing 9 consistent with other terms of a plan. We do not Congress was plainly 10 focused on the question of coverage vel non; it was not concerned 11 with the precise details of the coverage to be provided. 12 district court noted, Congress surely did not contemplate that 13 "restor[ing] a woman's wholeness," id., required insurers to 14 cover 100 percent of the amount billed by the surgeon -- whatever 15 that might be -- less only any applicable deductions and 16 coinsurance provisions, regardless of the other terms and 17 conditions of a plan. 18 district court succinctly captured the fundamental illogic of the 19 Krausses' argument: 20 affirmatively indicates that the insurer must offer better 21 coverage for breast reconstruction than it offers for the 22 mastectomies that necessitate them . . . . [I]t defies logic to 23 assume that Congress would have imposed such a requirement sub 24 silentio, or by negative inference." 25 26 Krauss, 418 F. Supp. 2d at 427. As the The "Nothing in the legislative history Id. at 426. In sum, the WHCRA includes an express statement of permission as to deductibles and coinsurance and is silent as to 24 1 other cost-sharing possibilities; each of the three similar 2 statutory provisions includes analogous language to ensure that 3 insurers apply the same devices to control costs of mandated 4 benefits that they employ for benefits unrelated to the statutory 5 provisions, but only sometimes uses the inclusive term "cost- 6 sharing"; and the legislative history of the WHCRA is silent 7 regarding the entire concept of insurer-instituted cost control 8 mechanisms. 9 Congress, in failing to provide explicit permission for insurers Under these circumstances, we cannot conclude that 10 to use other "cost-sharing" devices besides deductibles and 11 coinsurance when providing "coverage" for breast reconstruction 12 surgery, intended to limit permissible cost-sharing mechanisms to 13 the two specifically mentioned. 14 limits and, specifically, the Bilateral Surgery Policy, to Mrs. 15 Krauss's surgery therefore did not violate the WHCRA. 16 2. Oxford's application of UCR Private-Duty Nursing. Parallel reasoning applies 17 to the Krausses' claim under the WHCRA for reimbursement for 18 private-duty nursing care. 19 support a reading that requires an insurer to pay for private- 20 duty nurses where such services are not otherwise covered and 21 where post-operative care in a different form could have 22 satisfied the patient's medical needs as identified by her 23 doctor. 24 reconstruction of the breast on which the mastectomy has been 25 performed . . . in a manner determined in consultation with the 26 attending physician and the patient," 29 U.S.C. § 1285b(a)(1), We see nothing in the statute to That the WHCRA requires coverage for "all stages of 25 1 does not, we think, categorically override every plan's specific 2 exclusion of private-duty nursing care in these circumstances. 3 See Suppl. Certificate, Sec. IV ("Exclusions and Limitations"), 4 ¶ 28. 5 WHCRA's focus upon ensuring that breast reconstruction surgeries 6 are covered co-extensively with other surgeries under a 7 beneficiary's plan. 8 C. 9 We cannot reconcile such an interpretation with the The Plan's Terms The Krausses next argue that application of the 10 Bilateral Surgery Policy to their claim for reimbursement for the 11 reconstruction surgery and the denial of any reimbursement for 12 the private-duty nursing care violated the terms of the Plan. 13 They contend that the Bilateral Surgery Policy is not a UCR 14 determination, was not properly disclosed, and was derived from 15 an underlying HIAA-based UCR figure that was unreliable. 16 further assert that the private-duty nursing care was a service 17 "related" to the reconstruction surgery that came within Oxford's 18 pre-certification of the procedure. 19 Oxford's decision to apply the Bilateral Surgery Policy is 20 supported by substantial evidence, and that even under de novo 21 review, the explicit exclusion of private-duty nursing care by 22 the Plan governs the Krausses' claims. 23 1. They We conclude, however, that Bilateral Surgery Policy. We find the Krausses' 24 assertion that the Bilateral Surgery Policy violates the Plan's 25 terms to be meritless, largely because it fails to give effect to 26 the breadth of Oxford's UCR definition and description contained 26 1 in the Supplemental Certificate. 2 Supplemental Certificate states that UCR fee schedules are 3 calculated by "using data compiled by the [HIAA] and other 4 recognized sources," Suppl. Certificate, Sec. I, subsec. 7 5 (emphasis added). 6 discretion to employ an amount it deems "reasonable . . . for a 7 particular Covered Service in the geographical area it is 8 performed." 9 Plan's terms forbids Oxford from adopting a UCR based not only on 10 In Section I, paragraph 7, the Its "definition" of "UCR" accords Oxford the Id., Sec. XII ("Definitions"). Nothing in the HIAA data, but on some other "recognized" source.8 11 The Bilateral Surgery Policy, while arguably less than 12 generous, comports with, and is based upon, Medicare's policy. 13 See Medicare Part B Reference Manual § 22.1(e)(1), at 22-8 14 (2006), available at http://www.highmarkmedicareservices.com 15 /partb/refman/pdf/chapter22.pdf (last visited Feb. 25, 2008) 16 ("Payment for claims reporting bilateral procedures will be based 17 on 150% of the fee schedule amount."); Certification of David H. 18 Finley, M.D., ¶ 18 ("Oxford's Bilateral Surgery policy is based 19 upon healthcare industry standards, customs, and practices, 20 including the policies established by Medicare."). 21 reimbursement rate of 150% of UCR was based, therefore, on both 22 HIAA data and a "recognized source" (Medicare). 23 Bilateral Surgery Policy describes HIAA data as "the UCR," does 24 not, we think, preclude Oxford from treating the Bilateral 8 The That the The Krausses do not challenge Oxford's decision to rely on HIAA data as a general matter. We therefore assume for purposes of this opinion that such reliance was proper. 27 1 Surgery Policy as having determined the Krausses' UCR in this 2 instance. 3 from greater precision and less self-referential language in 4 Oxford's references to what constitutes "the UCR," see, e.g., 5 Letter from Karen Cofield, Grievance Associate, Oxford Health 6 Plans, to Geri Krauss dated Mar. 11, 2004, at 1 (referring to 7 amount paid under Bilateral Surgery Policy as "the UCR" and to 8 the HIAA-derived payment level and application of the Bilateral 9 Surgery Policy thereto as "150% of the UCR"). Of course, Oxford and its members would likely benefit But because the 10 terms of the Supplemental Certificate indicate that Oxford did 11 not intend the UCR charge necessarily to be equivalent to the 12 HIAA amount, and because we, like the district court, are 13 unprepared to conclude that Medicare's policy is arbitrary and 14 capricious, Krauss, 418 F. Supp. 2d at 428, we cannot conclude 15 that Oxford's decision to apply the Bilateral Surgery Policy to 16 determine the "reasonable" charge for Mrs. Krauss's surgery was 17 an arbitrary or capricious application of the Plan. 18 There is also an insufficient basis for questioning 19 Oxford's determination of what specific reimbursement rate 20 applied to the Krausses' claim under the Bilateral Surgery 21 Policy. 22 of $20,000 for a single breast reconstruction was based on only 23 ten comparable procedures, the Krausses do not challenge that the 24 ten-procedure sample used to arrive at the $20,000 rate was based 25 upon doctors' charges in Manhattan for the specific type of 26 breast reconstruction surgery Mrs. Krauss underwent or that Although the underlying HIAA-derived reimbursement rate 28 1 Oxford derived the $20,000 amount from HIAA data, "Surgical 2 Prevailing Healthcare Charges System, 11/10/01-11/09/02," a 3 standard industry source. 4 7.13(a) (defining "reasonable and customary" charges for small 5 business health plans as "a standard based on the Prevailing 6 Healthcare Charges System profile for New Jersey or other state 7 when services or supplies are provided in such state, 8 incorporated herein by reference published and available 9 from . . . Ingenix, Inc. . . ."). See, e.g., N.J. Admin. Code § 11:21- Moreover, that Dr. Sultan 10 received varying reimbursement amounts from Oxford for the same 11 procedure performed on other patients during the period Mrs. 12 Krauss underwent her reconstruction surgery does not demonstrate 13 arbitrariness by Oxford in determining its reimbursement rate. 14 The Plan entitled the Krausses to reimbursement at the equivalent 15 of "90th percentile HIAA data." 16 Geri Krauss dated Mar. 11, 2004, at 3. 17 reveal what percentile applied to the benefit plans of Dr. 18 Sultan's other patients. 19 2. Letter from Karen Cofield to Private-Duty Nursing. The record does not Oxford's decision not to 20 reimburse the Krausses for the costs of private-duty nursing care 21 following the reconstruction surgery also did not violate the 22 Plan. 23 for compensation, we agree with the district court that the 24 Plan's explicit and unambiguous exclusion of "[p]rivate or 25 special duty nursing" from coverage, Suppl. Certificate, Sec. IV 26 ("Exclusions and Limitations"), ¶ 28, controls. Reviewing de novo the Krausses' claim under the contract 29 The fact that 1 Oxford pre-certified Mrs. Krauss's surgery knowing that it would 2 require post-operative care, or that it characterized the WHCRA 3 as requiring it to "cover reconstructive surgery or related 4 services following a mastectomy," does not obligate Oxford, 5 contractually or otherwise, to pay for post-operative care or 6 services "related" to Mrs. Krauss's operation by any and all 7 means -- certainly not by a method of care expressly excluded 8 from coverage under the Plan.9 9 We do not mean to imply that Mrs. Krauss should not 10 have opted for the type of post-operative care that she and her 11 doctor thought would be the most effective. 12 to the Krausses' arguments that post-operative care was required, 13 and that Dr. Sultan recommended that the care be provided in the 14 form of private-duty nursing. 15 contention that private-duty nurses may have been more cost 16 effective than similar care to which she would have been entitled 17 had she been treated in the hospital's intensive care unit 18 instead. 9 We are sympathetic We also find some merit in their But we think the Krausses' health care plan was amply Juliano v. Health Maintenance Organization of New Jersey, Inc., 221 F.3d 279 (2d Cir. 2000) and Miller v. United Welfare Fund, 72 F.3d 1066 (2d Cir. 1995), upon which the Krausses rely, are not to the contrary. Neither case concerned benefit plans which excluded private-duty nursing from coverage. Juliano, 221 F.3d at 283 ("USH did not claim that private duty nursing was not a covered benefit."); Miller, 72 F.3d at 1070 (insurer denied benefits for private-duty nursing on grounds that it was not medically necessary). The Krausses here do not deny that Mrs. Krauss's post-operative medical needs could have been met had she stayed in an ICU. See Appellants' Br. at 51 ("[E]xclusion is not justified merely because Dr. Sultan required [post-operative] monitoring be done by specially trained private nurses rather than in the ICU, especially since he believed that to be the less expensive alternative." (emphasis omitted)). 30 1 clear that the nursing care she chose was not covered. The 2 Krausses are, in these circumstances, bound by the terms of their 3 contract. 4 reimburse the Krausses for costs associated with the private-duty 5 nursing care she received. On these facts, Oxford was under no obligation to 6 III. Claims for Breach of Fiduciary Duty 7 The Krausses also bring a claim for breach of fiduciary 8 duty pursuant to ERISA § 502(a)(3), which authorizes a civil 9 action 10 11 12 13 14 15 16 17 by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan. 18 29 U.S.C. § 1132(a)(3). 19 Oxford breached that duty by failing to disclose certain 20 information, by making false and affirmative misrepresentations 21 regarding the true reason for denying their claims for 22 reimbursement, and by failing to act on the Krausses' claims and 23 appeals in a timely manner. 24 Specifically, the Krausses assert that We have held that when an ERISA fiduciary deals 25 unfairly with a plan's beneficiaries, a claim for breach of 26 fiduciary duty may lie under ERISA § 502(a)(3), 29 U.S.C. 27 § 1132(a)(3). 28 (2d Cir. 2006); Devlin v. Empire Blue Cross & Blue Shield, 274 29 F.3d 76, 88-89 (2d Cir. 2001), cert. denied, 537 U.S. 1170 See Frommert v. Conkright, 433 F.3d 254, 269-72 31 1 (2003). 2 entitled to relief. 3 Here, however, we conclude that the Krausses are not First, the Krausses cannot recover money damages 4 through their claim for breach of fiduciary duty. 5 state a claim under ERISA section 502(a)(3), "the type of relief 6 a plaintiff requests must . . . be 'equitable.'" 7 Kaufman, 457 F.3d 250, 264 (2d Cir. 2006). 8 damages are therefore not cognizable under section 502(a)(3). 9 Id. at 263-64; see also Gerosa v. Savasta & Co., 329 F.3d 317, 10 In order to Coan v. Claims for money 321 (2d Cir.), cert. denied, 540 U.S. 967 (2003). 11 Second, in arguing that Oxford mishandled their claim 12 through nondisclosure, misleading statements, and untimely 13 responses, the Krausses are in essence claiming that Oxford 14 denied them the full and fair review to which they were entitled 15 under ERISA § 503(2), 29 U.S.C. § 1133(2).10 16 review concerns a beneficiary's procedural rights, for which the 17 typical remedy is remand for further administrative review. 18 Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d 154, 159 (4th 19 Cir. 1993); VanderKlok v. Provident Life & Accident Ins. Co., 956 20 F.2d 610, 616-17 (6th Cir. 1992); Wolfe v. J.C. Penney Co., 710 21 F.2d 388, 393- 94 (7th Cir. 1983). 22 relevant information has been finally disclosed, we are confident 23 that administrative remand would be futile. 10 A full and fair See Here, however, now that the See Miller, 72 F.3d Section 503(2) provides that "every employee benefit plan shall . . . 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." 29 U.S.C. § 1133(2). 32 1 at 1071 (ERISA remand not required where it would be a "useless 2 formality" (internal quotation marks and citations omitted)). 3 Oxford's benefits determination, even if not properly explained 4 at the time of denial and during administrative review, was, as a 5 substantive matter, an appropriate implementation of the 6 Bilateral Surgery Policy under the Plan. 7 that the Krausses are not entitled to relief for breach of 8 fiduciary duty. 9 IV. 10 We therefore conclude Remaining Claims The Krausses make several other claims. 11 each to be without merit. 12 A. We find them 13 Statutory Damages We agree with the district court, Krauss, 418 F. Supp. 14 2d at 434, that since Oxford is not "the person specifically so 15 designated by the terms of the instrument under which the plan is 16 operated," 29 U.S.C. § 1002(16)(A)(i), it is not a plan 17 "administrator" within the meaning of ERISA § 502(c)(1), 29 18 U.S.C. § 1132(c)(1). 19 statutory damages under that provision of ERISA for Oxford's 20 nondisclosure of certain information. 21 F.2d 1004, 1010 n.5 (2d Cir. 1993); Davis v. Liberty Mut. Ins. 22 Co., 871 F.2d 1134, 1138 (D.C. Cir. 1989). 23 B. 24 25 The Krausses therefore cannot recover See Lee v. Burkhart, 991 Declaratory Relief For substantially the same reasons that we reject the Krausses' claims for unpaid benefits and damages relating to 33 1 Oxford's Bilateral Surgery Policy, their claim for declaratory 2 relief also fails. 3 C. Attorney's Fees 4 The district court's denial of attorney's fees and 5 costs was within its sound discretion. 29 U.S.C. § 1132(g)(1); 6 Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 7 871 (2d Cir. 1987). 8 D. Documents Outside the Record 9 We disagree with the Krausses' position as to Oxford's 10 submission on summary judgment of certain documents that were not 11 in the administrative record. 12 district court's decision to admit evidence outside the 13 administrative record is discretionary, "but which discretion 14 ought not to be exercised in the absence of good cause." 15 v. Health Maint. Org. of New Jersey, Inc., 221 F.3d 279, 289 (2d 16 Cir. 2000) (internal quotation marks and citation omitted). 17 Krausses, although failing to invoke this standard of review, 18 argue that the district court acted in a manner "patently 19 improper" because it admitted materials outside the 20 administrative record, relied upon them, and then criticized the 21 Krausses for failing to present contrary evidence. 22 Br. at 63. 23 challenged Oxford's submissions before the district court; 24 identified the contents of the erroneously admitted evidence or 25 whether or why there was not good cause for its admission; or We have repeatedly said that a Juliano The Appellants' But the Krausses have not told us whether they 34 1 detailed precisely how, beyond conclusory statements regarding 2 the inability to obtain discovery that they offer no proof of 3 ever having requested, they suffered prejudice as a result of the 4 error. 5 sufficiently set forth to preserve appellate review of the 6 matter. 7 2001) ("It is a settled appellate rule that issues adverted to in 8 a perfunctory manner, unaccompanied by some effort at developed 9 argumentation, are deemed waived." (citation and internal We need not decide whether the Krausses' arguments were See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 10 quotation marks omitted)). 11 Krausses have failed to demonstrate that the district court 12 lacked good cause for its decision to consider the challenged 13 documents. CONCLUSION 14 15 16 Under these circumstances, the For the foregoing reasons, the judgment of the district court is affirmed. 35
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