On the standard of review – a new checklist. This is added to the ERISA Toolkit page.
The proper standard of review to be applied in judicial review of a plan administratorâ€™s decision varies depending on venue. Nor are the Courts all persuaded that the issues have been well decided. As noted by a panel of the First Circuit Court of Appeals in a recent opinion:
This survey of the circuits reflects the difficulty of the standard of review issue. It remains an issue of considerable importance, as the number of amicus curiae briefs filed in this case demonstrates. However, this courtâ€™s prior decision in Doyle cannot be overruled by a panel of the court. Thus, we are bound by our precedent, and must apply arbitrary and capricious review in situations where the conflict of interest is purely structural. Nevertheless, I think our standard of review in cases in which an insurer also makes benefits determinations is increasingly difficult to defend. Denmark v. Liberty Life Assur. Co. Of Boston â€” F.3d â€”-, 2007 WL 914673 (March 28, 2007)
N.B.Â Since the U.S. Supreme Court will address the issue in Glenn v. Metlife, 461 F.3d 660 (6th Cir.2006), cert. granted in MetLife v.. Glenn, No. 06-923, â€” S.Ct. â€”-, 2008 WL 161473 (Jan. 18, 2008),, all of what follows could change in whole or in part. For now, here is the checklist:
For the present, the standard of review issue can be evaluated as follows:
- Is the plan fully insured, e.g., a group disability plan offered through an insurance carrier? (If not, proceed to #6)
- If yes to #1, has the state where the policy is issued (N.B.) one of the states that have prohibited discretionary clauses in insurance policies?
- If yes to #1 and # 2, was the policy issued at such as time as to be subject to the prohibition?
- 4. If yes to # 1-# 3, inclusive, the standard of review should be de novo.
- If no to any one of # 1-# 3, then proceed to # 6.
- Determine if the plan contains an adequate discretionary clause.
- If no to #6, then the standard of review should be de novo.
- If yes to #6, then proceed to evaluation of conflict under appropriate authority in the applicable jurisdiction (usually situs of plan administration)
- Regardless of # 5 â€“ # 8 follow the developments in Met Life v. Glenn, which could change the effect of these conclusions. Until then, proceed to # 10 – # 11.
- Does the fact that the plan administrator both pays and adjudicates claims make a difference in the standard of review?
The outcome depends on the venue. The cases may be classified in two categories as follows:
10 a. The â€œRealistâ€ Approach: 3rd, 4th, 5th, 6th, 9th, 10th, & 11th Circuits
The Third, Fourth, Fifth, Ninth, Tenth, and Eleventh Circuits have agreed that a plan administrator that also pays plan benefits operates under a conflict of interest that must be taken into account on judicial review of a benefit determination. See, e.g., Post v. Hartford Ins. Co., 501 F.3d 154, 161-164 (3d Cir. 2007)1; Carolina Care Plan Inc. v. McKenzie, 467 F.3d 383, 386-387 (4th Cir. 2006), cert. dismissed, Nos. 06-1182 & 06-1436 (July 30, 2007); Vega v. National Life Ins. Servs., Inc., 188 F.3d 287, 295-296 (5th Cir. 1999) (en banc); Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965-966 (9th Cir. 2006) (en banc); Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 1003 (10th Cir. 2004), cert. denied, 544 U.S. 1026 (2005); Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1561, 1566-1567 (11th Cir. 1990), cert. denied, 498 U.S. 1040 (1991). (The Third Circuit has suggested, however, that there is no conflict of interest when an employer â€œboth funds and administers the plan, but pays benefits out of a fully funded and segregated ERISA trust fund rather than its operating budget.â€ Post, 501 F.3d at 164 n.6.)
10 b. The â€œLaw & Economicsâ€ Approach: 1st, 2d, 7th & 8th Circuits
The First and Seventh Circuits have come to the contrary conclusion, holding that the mere fact that a plan administrator also pays claims does not present a conflict of interest that must be taken into account on review of a discretionary benefit determination. See, e.g., Wright v. R.R. Donnelley & Sons Co. Group Benefits Plan, 402 F.3d 67, 74-75 (1st Cir. 2005); Perlman v. Swiss Bank Corp. Comprehensive Disability Prot. Plan, 195 F.3d 975, 981 (7th Cir. 1999). Those courts have reasoned that although there is a potential conflict of interest in such circumstances, there is no need to adjust the level of scrutiny because market forces will counterbalance that potential. See, e.g., Perlman, 195 F.3d at 981 (explaining that â€œthe award in any one case will have only a trivial effect on [the administratorâ€™s] operating results,â€ and plan administrators â€œwant to maintain a reputation for fair dealing withâ€ plan beneficiaries).
The Second Circuit appears to take the same view, holding that the mere fact of a plan administratorâ€™s dual roles does not â€œtrigger stricter reviewâ€ unless the plaintiff shows that â€œthe administrator was in fact influenced by the conflict of interest.â€ Pulvers v. First UNUM Life Ins. Co., 210 F.3d 89, 92 (2000) (quoting Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251, 1255-1256 (2d Cir. 1996)). The Eighth Circuitâ€™s approach is similar, requiring, as a condition for heightened review, â€œmaterial, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administratorâ€™s fiduciary duty to her.â€ Woo v. Deluxe Corp., 144 F.3d 1157, 1160-1161 & n.2 (1998).
11. What effect should a structural conflict of interest have on the standard of review?
Once again, the outcome depends upon venue. The courts of appeals also have divided on the closely related question of how a conflict of interest should be weighed on review of a plan administratorâ€™s discretionary benefit denial.
The courts have adopted essentially three approaches:
- abuse-of-discretion review on a â€œsliding scale,â€
- de novo review, and
11a. Abuse-of-Discretion Review On A â€œSliding Scaleâ€ – 3rd, 4th, 5th, 6th, & 9th Circuits
The first approach, followed by the great majority of courts of appeals and utilized in the decision below, applies abuse-of-discretion review on something of a â€œsliding scale,â€ whereby the plan administratorâ€™s decision is reviewed for reasonableness, and the particular degree of deference afforded depends on the seriousness of the conflict. The Third, Fourth, Fifth, Sixth, and Ninth Circuits utilize variations of this approach. See, e.g., Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 392 (3d Cir. 2000); Doe v. Group Hospitalization & Med. Servs., 3 F.3d 80, 87 (4th Cir. 1993); Vega, 188 F.3d at 297; Borda v. Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1065-1069 (6th Cir. 1998) (applying abuse-of-discretion review that is â€œshaped by the circumstances of the inherent conflict of interestâ€ but not calling it a â€œsliding scaleâ€ (internal quotation marks omitted)); Abatie, 458 F.3d at 967 (rejecting the â€œsliding scaleâ€ metaphor but adopting an approach that â€œis substantially similar toâ€ the sliding-scale approach). In addition, although they do not view an administratorâ€™s dual roles alone as a conflict of interest, in circumstances where they do identify a conflict of interest, the First, Seventh, and Eighth Circuits increase the degree of scrutiny of a benefit denial using essentially the slidingscale approach. See, e.g., Wright, 402 F.3d at 74-75; Mers v. Marriott Intâ€™l Group Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1020-1021 & n.1 (7th Cir.), cert. denied, 525 U.S. 947 (1998); Woo, 144 F.3d at 1162.
11b. De Novo Review â€“ 2d Circuit
The Second Circuit follows an entirely different approach. Although it does not engage in heightened scrutiny based on an administratorâ€™s dual roles alone, when a claimant provides evidence that a potential conflict of interest exists and â€œ â€˜the administrator was in fact influenced by the conflict of interest,â€™ â€ the court utilizes de novo review. Pulvers, 210 F.3d at 92 (quoting Sullivan, 82 F.3d at 1255-1256).
11c. â€œBurden-Shiftingâ€ â€“ 10th & 11th Circuits
Both the Tenth and Eleventh Circuits utilize burden-shifting approaches. In the face of a conflict of interest, the Tenth Circuit shifts the burden of proof to the plan administrator to establish â€œthe reasonableness of its decision pursuant to [the] courtâ€™s traditional arbitrary and capricious standard.â€ Fought, 379 F.3d at 1006. Under that approach, the â€œadministrator must demonstrate that its interpretation of the terms of the plan is reasonable and that its application of those terms to the claimant is supported by substantial evidence.â€ Ibid. Under the Eleventh Circuitâ€™s approach, a reviewing court first determines, de novo, whether or not the denial of benefits was â€œwrong.â€ Brown, 898 F.2d at 1566. If the benefit denial was correct, the administratorâ€™s decision is affirmed; if it was wrong, â€œthe burden shifts to the fiduciary to prove that its interpretation of plan provisions committed to its discretion was not tainted by self-interest.â€ Ibid. If the administrator meets that burden, abuse-of-discretion review applies. See HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993-995 (11th Cir. 2001). If the administrator does not meet that burden, the court reverses the administratorâ€™s decision, having already determined on de novo review that it was erroneous. Ibid.
11d. De Novo/Sliding Scale â€“ Eighth Circuit
The Eighth Circuit applies a de novo standard in â€œegregious circumstances,â€ but otherwise applies abuse-of-discretion review that is adjusted to account for the seriousness of the conflict. See Woo, 144 F.3d at 1161-1162.