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NOT FOR PUBLICATION
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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`
`FILED
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`DEC 22 2020
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`
`
`
`No. 19-16374
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`D.C. No. 4:17-cv-02475-JSW
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`
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`MEMORANDUM*
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` Plaintiff-Appellant,
`
`I. M., on behalf of himself and all others
`similarly situated,
`
`
`
` v.
`
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`KAISER FOUNDATION HEALTH PLAN,
`INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Jeffrey S. White, District Judge, Presiding
`
`Argued and Submitted October 20, 2020
`San Francisco, California
`
`Before: THOMAS, Chief Judge, and KELLY** and MILLER, Circuit Judges.
`
`
`
`This putative class action case arises out of a health insurance dispute
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`between I.M. and Kaiser Foundation Health Plan, Inc. (“KFHP”). I.M. alleges that
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`KFHP breached its fiduciary duties owed under the Employee Retirement Income
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
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`except as provided by Ninth Circuit Rule 36-3.
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`** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
`
`
`U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
`
`
`
`
`
`
`
`

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`Security Act of 1974 (“ERISA”), 29 U.S.C. § 1104(a)(1), by excluding residential
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`treatment programs from its plan and by failing to provide adequate procedures
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`that would enable providers to refer eating disorder patients to residential treatment
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`programs. The district court granted summary judgment in favor of KFHP and
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`denied reconsideration. I ER 1–10. On appeal, I.M. contends that the district court
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`overlooked numerous factual disputes concerning whether KFHP breached its
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`fiduciary duties concerning medically necessary residential treatment. I.M. further
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`contends that there is no support in the record that I.M. turned down help in getting
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`residential treatment and instead opted for private-pay out-of-network residential
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`treatment. This latter proposition is plainly incorrect. We have jurisdiction under
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`28 U.S.C. § 1291 and we affirm.
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`STANDARD OF REVIEW
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`
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`Summary judgment is appropriate “if the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a
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`matter of law.” Fed. R. Civ. P. 56(a). We review the district court’s grant of
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`summary judgment de novo, construing the facts in the light most favorable to the
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`nonmoving party. Santopietro v. Howell, 857 F.3d 980, 987 (9th Cir. 2017).
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`However, “[r]ulings regarding evidence made in the context of summary judgment
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`are reviewed for an abuse of discretion.” Wong v. Regents of Univ. of Cal., 410
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`F.3d 1052, 1060 (9th Cir. 2005).
`
`
`
`2
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`
`
`

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`DISCUSSION
`
`
`
`Because the parties are familiar with the facts and procedural background,
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`we need not restate them here. “ERISA protects employee pensions and other
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`benefits by providing insurance . . . , specifying certain plan characteristics in
`
`detail . . . , and by setting forth certain general fiduciary duties applicable to the
`
`management of both pension and nonpension benefit plans.” Varity Corp. v.
`
`Howe, 516 U.S. 489, 496 (1996). One of ERISA’s basic purposes is to protect
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`participants and beneficiaries “by establishing standards of conduct, responsibility,
`
`and obligation for fiduciaries,” and “providing for appropriate remedies . . . and
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`ready access to the Federal courts.” Id. at 513 (quoting ERISA § 2(b), 29 U.S.C. §
`
`1001(b)). Under ERISA, a beneficiary may bring a civil action “(A) to enjoin any
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`act or practice which violates any provision of this subchapter or the terms of the
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`plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations
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`or (ii) to enforce any provisions of this subchapter or the terms of the plan.”
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`ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).
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`
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`I.M. asserts a breach of fiduciary duty under § 1132(a)(3), and therefore
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`must show “both (1) that there is a remediable wrong, i.e., that the plaintiff seeks
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`relief to redress a violation of ERISA or the terms of a plan; and (2) that the relief
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`sought is ‘appropriate equitable relief.’” Gabriel v. Alaska Elec. Pension Fund,
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`773 F.3d 945, 954 (9th Cir. 2014) (internal citations omitted). I.M. fails to
`
`
`
`3
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`
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`

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`establish the first element; thus, the district court properly granted summary
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`judgment in favor of KFHP.
`
`
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`I.M. contends that KFHP breached its fiduciary duty by improperly
`
`excluding residential treatment for eating disorders from its plan. However, I.M.’s
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`own course of treatment belies this argument. I.M. spent five days at the Center
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`for Discovery — a residential treatment facility — before checking himself out
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`against medical advice. Other than his own declaration, there is no indication that
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`this treatment was approved as a special, one-time circumstance. Rather, the
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`evidence and what actually occurred indicates that treatment at the Center for
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`Discovery was plainly covered in his plan. Undisputed evidence shows that KFHP
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`covered residential treatment, that it had contracts with residential treatment
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`centers to provide in-network options, and that it had a referral system to allow for
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`approval of out-of-network care when necessary. See, e.g., IV ER 422–23, 430–
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`31; see also II ER 61 (I.M.’s Kaiser plan). I.M. fails to rebut this evidence, relying
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`only on the speculation of one social worker at Herrick hospital who believed
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`Kaiser would not cover additional residential care. II ER 37. This is not enough to
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`defeat summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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`249–50 (1986) (“If the evidence is merely colorable, or is not significantly
`
`probative, summary judgment may be granted.”) (internal citations omitted). The
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`statement is not one of KFHP and plainly is not a denial of benefits.
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`
`
`4
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`
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`

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`Despite his plan’s coverage, I.M. repeatedly refused to take advantage of
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`KFHP’s residential treatment options, instead opting for a private, out-of-network
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`facility. Although I.M. argues that he never turned down in-network residential
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`treatment, the record proves that he repeatedly told his doctors that he planned to
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`pursue out-of-network residential options. See, e.g., III ER 316, 341, 352; IV ER
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`565, 583, 594, 607–08.
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`
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`Furthermore, I.M.’s reliance on Harlick v. Blue Shield of Cal., 686 F.3d 699
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`(9th Cir. 2012), is misplaced. Harlick addressed a denial of benefits claim, id. at
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`707, while, notably, I.M. abandoned his denial of benefits claim after it was
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`dismissed for failure to exhaust administrative remedies. The plan at issue in
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`Harlick also expressly excluded residential treatment programs. Id. at 709.
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`Although I.M.’s plan has some limiting language, it did not expressly exclude all
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`residential treatment for the treatment of eating disorders and it is undisputed that
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`I.M.’s residential treatment was covered. Thus, I.M.’s argument that his plan
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`excluded residential treatment fails.
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`
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`I.M. also argues that KFHP breached its fiduciary duty by failing to provide
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`procedures that would enable providers to refer patients with eating disorders to
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`residential treatment. As evidence of this, I.M. points to his providers’ confusion
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`about when and how to make such referrals.
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`
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`
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`Simply put, there is no evidence that KFHP’s procedures (or lack thereof)
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`5
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`

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`inhibited I.M. from obtaining residential treatment. Indeed, Dr. Rau, I.M.’s
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`therapist, testified that she would refer patients for residential treatment through
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`KFHP’s system and had developed a process for doing so. IV ER 523; SER 150–
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`51, 157–58. Instead, it was I.M. who either refused to consider residential
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`treatment or would only consider out-of-network programs when the option was
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`raised. III ER 316, 341, 352; IV ER 565, 583, 594, 607. Once I.M. decided on
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`residential treatment, he and his mother solicited Dr. Rau’s opinion on various out-
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`of-network options and updated Dr. Rau about his progress. IV ER 555–57, 569,
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`574–75, 579–80, 583, 587, 590–91, 594, 607–08. Just because Dr. Rau did not
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`directly refer patients to residential programs does not make her ignorant of the
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`referral process nor does it create a factual dispute. Likewise, that Dr. Rau did not
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`know of other in-network residential facilities other than the Center for Discovery
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`does not create a genuine issue of material fact. See Anderson, 477 U.S. at 249–
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`50. Dr. Rau knew how to refer patients with eating disorders, but it was I.M.’s
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`own statements that stopped her from going through that process. Ultimately, the
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`record belies any argument that KFHP erected barriers to residential treatment and,
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`in fact, KFHP left treatment decisions in the exclusive control of I.M.’s providers.
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`
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`I.M.’s argument concerning his doctor’s confusion about an alleged “fail
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`first” policy also fails to establish a breach of fiduciary duty. The confusion arose
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`out of a communication between Dr. Hazlett, I.M.’s psychiatrist, and Dr. Wang, a
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`
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`6
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`

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`doctor at a psychiatry call center. IV ER 474; SER 200. Dr. Wang informed Dr.
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`Hazlett that in order for I.M. to be hospitalized, he must first fail an eating disorder
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`intensive outpatient program evaluation. Not only was this communication about
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`hospitalization — as opposed to residential treatment — but there is no evidence
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`that such a policy was ever applied to I.M. Mere confusion about how to obtain
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`hospitalization in one instance is not adequate grounds for finding a breach of
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`fiduciary duty under ERISA concerning residential treatment.
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`Finally, it is important to note that administrators like KFHP cannot be held
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`vicariously liable for its providers’ medical judgments. See Watanabe v. Cal.
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`Physicians’ Serv., 169 Cal. App. 4th 56, 68 (Cal. Ct. App. 2008) (“[H]ealth care
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`services plans ‘are not health care providers under any provision of law’ ([Cal. Civ.
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`Code § 3428(c)]) and therefore cannot be liable for medical malpractice.”).
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`Although this issue does not apply to I.M.’s allegations regarding KFHP’s policies
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`and procedures, I.M. appears to try and graft his dissatisfaction with his doctors’
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`course of treatment onto KFHP. His doctors are not KFHP employees, but instead
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`are employed by an affiliated company, the Permanente Medical Group.
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`Therefore, I.M. may not attribute the alleged deficiencies of his doctors to KFHP.
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`
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`Accordingly, the district court did not err in granting summary judgment in
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`favor of KFHP.
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`AFFIRMED.
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`7
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`

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