Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`May 15, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`No. 21-4088
`
`D. K.; K. K.
`
` Plaintiffs - Appellees,
`
`v.
`
`UNITED BEHAVIORAL HEALTH;
`ALCATEL - LUCENT MEDICAL
`EXPENSE PLAN FOR ACTIVE
`MANAGEMENT EMPLOYEES,
`
` Defendants - Appellants.
`
`--------------------------------
`
`SECRETARY OF LABOR,
`
` Amicus Curiae.
`
`_________________________________
`
`Appeal from the United States District Court
`for the District of Utah
`(D.C. No. 2:17-CV-01328-DAK)
`_________________________________
`
`Amy Shafer Berman (April N. Ross and Amy M. Pauli, with her on the briefs), Crowell
`& Moring, LLP, Washington, D.C., for Defendant – Appellant.
`
`Brian S. King, Brian S. King, P.C., Salt Lake City, Utah, for Plaintiff – Appellee.
`
`Susanna Benson (Rachel Uemoto with her on the brief), U.S. Department of Labor,
`Washington, D.C., for Amicus Curiae Acting Secretary of Labor Julie Su.1
`
`
`1 Pursuant to FRAP 43(c)(2), Acting Secretary Julie Su is automatically
`substituted for former Secretary of Labor Seema Nanda.
`
`
`
`
`

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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 2
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`_________________________________
`
`Before CARSON, Circuit Judge, LUCERO, Senior Circuit Judge, and ROSSMAN,
`Circuit Judge.
`
`_________________________________
`
`LUCERO, Senior Circuit Judge.
`_________________________________
`
`This case considers the procedural requirements for medical claims in
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`insurance plans subject to the Employee Retirement Income Security Act (“ERISA”).
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`Middle schooler A.K.2 struggled with suicidal ideation for many years and attempted
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`suicide numerous times, resulting in frequent emergency room visits and in-patient
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`hospitalizations. A.K.’s physicians strongly recommended she enroll in a residential
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`treatment facility to build the skills necessary to stabilize. Despite these
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`recommendations and extensive evidence in the medical record, United Behavioral
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`Health (“United”) denied coverage for A.K.’s stay at a residential treatment facility
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`beyond an initial three month period. Her parents appealed United’s denial numerous
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`times, requesting further clarification, and providing extensive medical evidence, yet
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`United only replied with conclusory statements that did not address the evidence
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`provided. As a result, A.K.’s parents brought this lawsuit contending United violated
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`its fiduciary duties by failing to provide a “full and fair review” of their claim for
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`2 Along with her parents, A.K. was an original plaintiff in the underlying
`decision. In the pendency of this appeal, A.K. passed away and accordingly has been
`removed from the caption. A.K.’s parents remain appellees against their insurer for
`claims denied and expenses incurred.
`
`
`
`2
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`

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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 3
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`medical benefits. Both sides moved for summary judgment, and the district court
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`ruled against United.
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`We consider whether United arbitrarily and capriciously denied A.K. medical
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`benefits and whether the district court abused its discretion in awarding A.K. benefits
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`rather than remanding to United for further review. We ultimately conclude that
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`United did act arbitrarily and capriciously in not adequately engaging with the
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`opinions of A.K.’s physicians and in not providing its reasoning for denials to A.K.’s
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`parents. We also conclude the district court did not abuse its discretion by awarding
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`A.K. benefits outright. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM
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`the district court’s grant of summary judgment and award of benefits.
`
`I
`
`A
`
`A.K.’s struggles with anxiety began as a young child. By age seven, she began
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`seeing a counselor for emotional outbursts, and by sixth grade her symptoms
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`included signs of depression and anxiety. She began cutting herself with razor
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`blades, requiring stitches. In the seventh grade she attempted suicide. After her
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`suicide attempt, and over the next several years, A.K. was admitted to numerous
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`inpatient hospitalization units, partial hospitalization programs, and short-term
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`residential treatment centers.3 Despite the best efforts of her parents and treatment
`
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`3 Inpatient care refers to 24-hour care in a hospital setting. Day, or partial
`hospitalization, programs involve day-long treatments in which patients return to
`their home at night. Residential treatment programs allow the patient to live on-site
`and get day programming outside a hospital setting.
`3
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`

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`team, the admissions developed into a repeated cycle in which A.K. would be
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`admitted to an intensive hospitalization unit after self-harming, transferred to a less
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`intensive day program because United denied coverage, and attempt suicide soon
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`after.
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`In March 2012, A.K. was sent to the emergency room following another
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`suicide attempt and was admitted to the Seay Behavioral Center (“Seay”) inpatient
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`unit for treatment for mental health disorders. After one week, she transitioned to
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`Seay’s day program and was discharged ten days later. One week after discharge,
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`A.K. ran away from home, and told police she intended to kill herself. She was then
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`readmitted to Seay’s inpatient unit, where she was diagnosed with “major depressive
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`disorder.”
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`In April, after two weeks at Seay, A.K was transferred to Cedar Crest
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`Residential Treatment Center (“Cedar Crest”). After five weeks at Cedar Crest, she
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`was discharged to a day program at Children’s Medical Center. At that point, A.K.
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`seemed to be stabilizing and her parents reenrolled her in school to begin the eighth
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`grade. However, A.K. soon began cutting herself again—on several occasions so
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`badly that she needed to go to the emergency room. As a result, she was reenrolled
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`in the day program at Children’s Medical Center, but ran away from home and
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`attempted to strangle herself one week later. She was thereafter admitted to the
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`inpatient program at the Center.
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`One week later, in October, United reconsidered if A.K.’s stay at Children’s
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`Medical was medically necessary. Due to A.K.’s multiple treatment episodes and
`4
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 5
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`remissions, her treatment team at Children’s Medical felt she was “at risk of self
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`harm if not in an [inpatient] or [residential treatment center] setting.” United denied
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`coverage. United’s denial letter stated that A.K. “could be treated by providers in a
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`partial hospitalization program setting” because she denied having suicidal thoughts
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`or intentions. A.K. was thus switched from the Children’s Medical inpatient program
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`to its day program. Three days later, she attempted to strangle herself and was
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`readmitted to the inpatient unit.
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`After a few days at Children’s Medical, A.K. was transferred to Meridell
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`Achievement Center (“Meridell”), a residential treatment center. United initially
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`denied coverage of A.K.’s stay at Meridell but overturned the denial after A.K.’s
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`parents appealed. After two months, A.K. was discharged from Meridell to the day
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`program at Excel Center (“Excel”), and began to cut herself again. Nonetheless,
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`A.K. was discharged from Excel after five weeks, and returned to middle school.
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`Two months later, A.K. cut her wrists again. At that point, she was admitted to
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`inpatient care at University Behavioral Center (“University”) for major depressive
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`disorder and suicidal ideation.
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`A.K. spent ten days in treatment at University before being discharged in April
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`2013. Two days after discharge, she began cutting herself again. Following
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`emergency room care, she was admitted to Glen Oaks Hospital (“Glen Oaks”) for
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`inpatient treatment. She was discharged a week later. Two weeks later, she cut
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`herself again, went to the ER, and was readmitted to University’s inpatient unit.
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`
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`5
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 6
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`After a week at University, A.K. was discharged to Meridell for residential
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`treatment. According to A.K.’s parents, Meridell staff indicated A.K. needed eight to
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`eighteen months of residential treatment to address the underlying mental health
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`disorders leading to her suicidal behavior. In response, A.K.’s parents began
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`researching long-term care facilities and United’s coverage options. In the midst of
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`their search and during A.K.’s tenth week at Meridell, United denied continued
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`coverage on grounds that A.K. “has been successful in working toward her recovery”
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`and “no longer appears to be a threat to herself or others.” A.K.’s parents appealed,
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`but United upheld the denial. A.K. was then discharged from Meridell to the day
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`program at Excel. Three days later, returning to form, she cut herself in the arm and
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`groin, nearly severing her femoral artery. A.K. was readmitted to the Children’s
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`Medical inpatient program, whose physicians noted she “need[ed] long term
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`placement.”
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`A.K. spent over a week in inpatient treatment at Children’s Medical before
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`being discharged to Meridell for residential treatment in August 2013. The treatment
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`team at Children’s Medical also recommended A.K. attend a residential treatment
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`program for ten to eighteen months. They reported A.K. required concentrated time
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`to develop the emotional regulation, positive coping, and relationship skills, among
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`others, needed to return home safely. A.K. improved at Meridell while her parents
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`researched and applied to waitlists for long-term care facilities. However, United
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`cited A.K.’s improvement to again deny further coverage at Meridell, noting that she
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`“move[d] in her recovery by improving her coping skills and working with her
`6
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 7
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`treatment team. [So] [i]t appears [A.K.] is ready to transfer to a longer term
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`residential [facility.]”
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`In summary, between her first emergency room visit in March 2012 and her
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`discharge from Meridell in November 2013, A.K. had no less than ten psychiatric
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`emergency room visits. She also spent over 55 total days in inpatient care, over 55
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`total days in partial hospitalization day programs, and over 235 total days in
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`residential treatment centers. Because she was moved to lower-level care upon
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`stabilization or slight improvement, she lacked the stability necessary to develop the
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`skills to succeed outside of a 24-hour care setting. These hospitalizations and
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`treatments disrupted her sixth- and seventh-grade years, further harming her ability to
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`thrive as an ordinary middle school child.
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`It is uncontested that for 20 months A.K. moved between emergency rooms,
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`inpatient facilities, and day programs. During the same period, United repeatedly
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`scaled down A.K.’s treatment.
`
`B
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`A.K. is a beneficiary of her father’s medical plan, administered by United.
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`The plan covers medically necessary treatment that conforms to plan requirements.
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`A particular service is medically necessary if “medically appropriate for the
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`diagnosis or treatment of an Illness, Pregnancy or accidental injury.” The plan
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`established guidelines to evaluate the medical appropriateness of particular areas of
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`treatment based on the following general standards:
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`
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 8
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`(i) It is accepted by the health care profession in the U.S. as the most
`appropriate level of care. . .
`(ii) It is the safest and most effective level of care for the condition
`being treated.
`(iii) It is appropriate and required for the diagnosis or treatment of the
`accidental injury, Illness or Pregnancy.
`(iv) There is not a less intensive or more appropriate place of service,
`diagnostic or treatment alternative that could have been used in lieu of
`the place of service or supply given.
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`The plan specifically developed guidelines to evaluate coverage of treatment for
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`Major Depressive Disorder and Dysthymic Disorder. To be covered, treatment must
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`be “consistent with generally accepted standards of clinical practice,” “backed by
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`credible research,” “consistent with [United]’s clinical best practice guidelines,” and
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`“clinically appropriate for the member’s behavioral health condition based on
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`generally accepted standards of clinical practice and benchmarks.” That is, the
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`service must meet certain quality standards and appropriately address the diagnosis.
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`A reviewer considers if the intensity of care is appropriate and if the member’s
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`treatment could occur safely at a lower level of care. For mental health care, for
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`example, the reviewer may consider if a patient can achieve their goals in day
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`programming rather than inpatient care. To that end, “[t]here is a reasonable
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`expectation that services will improve the member’s presenting problems within a
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`reasonable period of time.” For this consideration, reviewers look at the member’s
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`ongoing needs. They are guided to “weigh[] the effectiveness of treatment against
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`evidence that the member’s signs and symptoms will deteriorate if treatment in the
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`current level of care ends” and consider improvement “within the broader framework
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`
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`8
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 9
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`of the member’s recovery and resiliency goals.” Discharge from care may be
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`appropriate if “[t]he goals for the current episode have been accomplished.”
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`A.K.’s plan included coverage for Residential Treatment Centers, facilities
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`with 24-hour care and behavioral health treatment for patients who do not need the
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`intensity of inpatient care. These facilities act as “an extension of or an alternative to
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`acute Hospital care,” and “provide[] services which are less intensive than acute In-
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`Patient care, but satisf[y] the requirement for a protected and structured environment
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`in cases where Outpatient treatment is not appropriate.” However, the plan
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`discontinues coverage for Residential Treatment Centers and recommends discharge4
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`if treatment becomes “custodial,” defined as “services that don’t seek to cure, are
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`provided when the member’s condition is unchanging, are not required to maintain
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`stabilization, or don’t have to be delivered by trained clinical personnel.” Reviewers
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`evaluating A.K. for discontinued coverage were required to specifically address her
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`ongoing needs and levels of functioning.
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`A.K.’s plan sets out specific requirements for denial procedures. Denials must
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`include “[t]he specific reason or reasons for the denial” and “[s]pecific reference[s]
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`to pertinent Plan provisions on which the denial was based.” Denials based on
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`medical necessity must include “an explanation of the scientific or clinical judgment
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`for the determination, applying the terms of the Plan to the Participant’s
`
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`4 For discharge, indications that care is custodial includes: 1) The member’s
`signs and symptoms have been stabilized, resolved, or a baseline level of functioning
`has been achieved; 2) The member’s condition is not improving; or 3) The intensity
`of active treatment in Inpatient is no longer required.
`9
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 10
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`circumstances or a statement that such explanation will be provided upon request.”
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`Claimants may appeal denials. In responding to such appeals, the “decision on
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`review” must also provide “[t]he specific [] reasons for the adverse benefit
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`determination,” and “specific reference to pertinent Plan provisions on which the
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`adverse benefit determination is based.” For medical necessity determinations, the
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`“decision on review” must also provide “either an explanation of the scientific or
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`clinical judgment for the determination, applying the terms of the Plan to the
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`Participant’s circumstances or a statement that such explanation will be provided
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`upon request.” Finally, the plan allows claimants to request a third-party review of
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`appeals.
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`C
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`In November 2013, A.K.’s parents recognized that her cyclical treatment
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`course had not provided her with stability necessary for sustained improvement,
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`particularly because United repeatedly recommended discharge immediately upon
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`stabilization in 24-hour care. Having been advised of A.K.’s need for a long-term
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`residential facility, A.K.’s parents applied for a “case exception” with United and
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`requested coverage for twelve months of treatment. They provided extensive
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`evidence in support of their assertion that A.K. required a long-term residential
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`facility, including letters from A.K.’s treating physicians. In one letter, Ms. Weaster,
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`a program therapist at Meridell, recommended “ongoing specialized residential
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`treatment . . . upon discharge from Meridell in order to keep [A.K.] safe and give her
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`the best possible chance for full recovery from her complex clinical issues.” Ms.
`10
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 11
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`Weaster stated that despite A.K.’s improvement during residential treatment, “she
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`continues to exhibit emotional reactivity that places her at ongoing risk of relapse
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`when discharged to home. She is precariously balanced and quickly regresses to self-
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`injury and suicidal thoughts and/or behaviors when not in a monitored 24-hour a day
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`therapeutic setting.”
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`In another letter, Dr. Diederich, an attending physician at Children’s Medical
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`wrote that “[o]ver the course of working with [A.K.] through multiple inpatient
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`admissions with her as well as seeing the results of the more typical intermediate-
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`duration residential placements, she has struggled to make the needed progress to be
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`successful in the home.” He considered A.K. part of “a small subset of children that
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`cannot make the needed changes unless they are in a single, consistent program that
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`will keep them until they can develop the needed skills to be safe.” He noted that
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`while A.K. may be processing and progressing, “her speed of [] processing is much
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`slower than her peer group,” which “will make many of the processes seem slower
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`and ineffective, when really she needs a greater length of time to allow these skills to
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`be developed.” He recommended A.K. be placed in long-term residential treatment.
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`Finally, Dr. Riedel, the medical director of Meridell, provided his medical
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`opinion of A.K. based on her numerous admissions. He wrote that A.K. seemed to
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`respond “well to the external structure provided by the residential treatment center
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`setting,” but tended to “decompensate[] upon discharge[] due to her not having been
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`able to internalize and consolidate gains.” He advised that A.K. “needs a long-term
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`11
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 12
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`residential treatment center placement to accomplish the goals necessary for her to
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`succeed and have a chan[c]e at sustaining a healthy life.”
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`In sum, multiple treatment professionals reported that A.K. would need long-
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`term residential treatment to address her underlying mental health disorders. These
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`professionals uniformly noted that A.K. needed to develop various skills to address
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`her disorders and only long-term residential treatment would position her to do so.
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`Short-term and day treatment were simply inadequate for A.K.
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`United’s third-party reviewer, IPRO, handled A.K.’s case exception request.
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`IPRO considered if two months of residential treatment would be appropriate given
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`that A.K. recently spent over two months in residential treatment at Meridell. They
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`determined A.K.’s suicide attempts days after her discharge from Meridell indicated
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`that “another two month stay . . . is not enough treatment as it is too risky to
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`discharge her out of a 24-hour residential treatment.” IPRO noted A.K. needed
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`specialized treatment to improve coping skills and emotional regulation needed to
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`exist outside a 24-hour setting and avoid self-harm. Nonetheless, IPRO approved
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`residential treatment for three months rather than the requested twelve, but indicated
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`an additional assessment would occur after three months to determine continued
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`coverage. In coming to their conclusion, IPRO specifically noted the concerns of the
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`treating professionals outlined in their letters and discussed A.K.’s extensive medical
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`history. In November 2013, based on the IPRO approval, A.K.’s parents enrolled her
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`in Discovery Girls Ranch (“Discovery”), a residential facility.
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`12
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`In February 2014, as A.K.’s initial three-month stay at Discovery was coming
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`to an end, A.K.’s parents requested coverage for additional time at Discovery. This
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`began a series of denials, appeals for reconsideration, and requests for more
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`information. United’s first reviewer stated A.K. “appears to require Mental Health
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`Residential Treatment Center long term Level of Care.” However, the reviewer
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`mistakenly believed A.K.’s plan categorically excluded out-of-network residential
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`treatment. Though this was a misreading of A.K.’s plan, the reviewer denied
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`coverage on those grounds.
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`A.K.’s parents appealed, pointing out the exclusion did not apply to their plan
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`and thus the reviewer’s denial was erroneous. Nevertheless, the second reviewer
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`repeated the error. That reviewer noted that “[b]ased upon current medical records,
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`[A.K.] appears to require Mental Health Residential long term level of care.” The
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`reviewer again mistakenly denied care, believing that A.K.’s plan excluded coverage
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`for out-of-network residential treatment.
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`The parents appealed again, repeating that their plan did not categorically
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`exclude coverage, as the reviewers had believed. This request provided United with
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`a description of A.K.’s medical records, including an additional letter from
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`Discovery’s Dr. Lowe, who stated that early discharge was highly risky because A.K.
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`“has not learned to regulate her mood outside a structured therapeutic facility and
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`would return to old patterns of self-harm as evidenced by her recent poor
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`relationship[] choices, increased anxiety, emotional reactivity, refusal to use healthy
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`13
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 14
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`coping skills, resulting in increased depression, suicidal thoughts and cutting
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`herself.”
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`United recognized its error in categorically denying coverage and re-started
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`the appeals process. In December 2014, ten months after initially requesting to
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`extend residential treatment at Discovery, A.K.’s parents received United’s first
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`denial review that directly considered medical necessity, not the mistaken exclusion.
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`This third denial letter stated that “medical necessity was not met,” citing A.K.’s lack
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`of injurious behavior while at Discovery and her stable diagnosis.
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`A.K.’s parents appealed for a third time, pointing out the inconsistent denial
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`rationales and requesting justification for the medical necessity denial. They
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`included an additional letter from Dr. Riedel of Meridell in their appeal, which stated
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`that as of July 2013, “[A.K.] is on a slow but steady course” and “[i]t will be critical
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`and crucial that medical stability be reached and she be allowed to continue the work
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`that she is doing and to continue to consolidate gains.” He went on to say that
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`“discharge at this time would certainly jeopardize [A.K.’s] prognosis,” “[g]iven [her]
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`extensive history since childhood, [including] the multiple acute psychiatric
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`hospitalizations that have been very disruptive to [her] and her family and have
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`[fostered] more negative cognitive sets of being a failure and damaged.”
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`The third appeal specifically requested: 1) further clarification as to the weight
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`given to the medical opinions of A.K.’s various treatment professionals, 2)
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`clarification on how medical necessity could not be found, given the clinical record
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`provided, and 3) evidence of the clinical references relied on for the opinion. The
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 15
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`fourth reviewer found that continued treatment was not medically necessary because
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`A.K.’s goals of admission had been met, “which were to consolidate [A.K.]’s gains
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`so that she could control her[] self injurious behavior.” That reviewer did not include
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`information about the weight given to medical opinions, did not discuss the clinical
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`record, and provided no direct clinical references.
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`A.K.’s parents requested an external review—their fourth appeal. They stated
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`United had not shown “positive proof that a fair review was ever conducted” and
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`requested a “full, fair, and thorough independent third party review.” The third-party
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`reviewer noted the various medical evidence provided and the prior denial letters.
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`That reviewer found A.K. had made some improvement and was able to focus on
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`schoolwork. The reviewer remarked that “there is not evidence during [A.K.’s time
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`at Discovery] that remainder in a residential setting was the safest and most effective
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`level of care” and posited that A.K.’s behavior could be managed in day programs.
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`The reviewer concluded it was not medically necessary for A.K. to remain in
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`residential treatment.
`
`D
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`After the fifth denial, A.K.’s parents filed this lawsuit which asserted United
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`breached its fiduciary duty to provide a full and fair review of claim denials.
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`Specifically, they claimed United improperly categorized their claim as not medically
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`necessary, that United’s denial letters disregarded and did not engage with the
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`opinions of A.K.’s treating physicians, and that United failed to apply the terms of
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 16
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`the plan to specific portions of A.K.’s medical records. In the district court, both
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`parties moved for summary judgement.
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`The district court found United acted arbitrarily and capriciously for four
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`independent reasons: 1) United abused its discretion in classifying A.K.’s care as
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`custodial; 2) United did not fairly engage with the medical opinions of A.K.’s
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`treating professionals; 3) United’s denials did not contain reasoned analysis or
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`specific citations to the medical record; and 4) United demonstrated a shifting and
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`inconsistent rationale for denying benefits.5 The district court ordered United to pay
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`for A.K.’s treatment at Discovery, rather than remanding for internal review. United
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`now appeals that ruling to us.
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`II
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`We review the district court’s grant of summary judgement de novo, applying
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`the same standard as the district court. Eugene S. v. Horizon Blue Cross Blue Shield
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`of N.J., 663 F.3d 1124, 1130 (10th Cir. 2011).
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`Because United had “discretionary authority to determine eligibility for
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`benefits or to construe the terms of the plan,” we review the denial of benefits under
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`an arbitrary and capricious standard. See Firestone Tire & Rubber Co. v. Bruch, 489
`
`U.S. 101, 115 (1989). This deference arises out of ERISA’s roots in trust law and
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`imposition of fiduciary responsibility on administrators. Id. at 110. Under arbitrary
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`and capricious review, the actions of ERISA administrators are upheld if reasonable
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`
`5 We uphold the second and third of these independent grounds and decline to
`consider the other independent reasons for the district court’s decision.
`16
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 17
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`and supported by substantial evidence. Adamson v. Unum Life Ins. Co. of Am., 455
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`F.3d 1209, 1212 (10th Cir. 2006).
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`We review a district court’s choice of remedy for abuse of discretion. Dowie
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`v. Indep. Drivers Ass’n Pension Plan, 934 F.2d 1168, 1170 (10th Cir. 1991). Under
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`the abuse of discretion standard, we defer to the district court’s judgment if it is
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`rationally “sustainable on the law and facts.” Shook v. Bd. of Cnty. Comm’rs, 543
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`F.3d 597, 603 (10th Cir. 2008).
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`III
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`United challenges the district court’s conclusion that it violated multiple
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`ERISA requirements.6 ERISA sets minimum standards for employer-sponsored
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`health plans, which may be administered by a separate entity. 29 U.S.C. § 1001.
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`Administrators, like United, are analogous to trustees of common-law trusts and their
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`benefit determinations constitute fiduciary acts. Metro. Life Ins. v. Glenn, 554 U.S.
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`
`6 We address United’s motion to file a corrected appendix, partially under seal.
`Under the Tenth Circuit Rules of Appellate Procedure, appellants must provide an
`appendix “sufficient for considering and deciding the issues on appeal.” 10th Cir. R.
`30.1(B)(1). United’s initial appendix did not include certain documents required
`under our Local Rules, as United concedes. However, once notified, United
`immediately moved to file and produced a substantive supplemental appendix which
`meets our requirements. We may certify a supplemental record when material is
`lacking due to “error or accident.” Fed. R. App. P. 10(e)(2)(c). We do not decline an
`appeal if an insufficient appendix is mere “noncompliance with some useful but
`nonessential procedural admonition,” but rather concern ourselves when such
`insufficiencies raise “an effective barrier to informed, substantive appellate review.”
`McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th Cir. 1992). A.K.’s parents have
`not demonstrated how United’s quickly remedied error could foreclose our effective
`review. Thus, United’s motion is GRANTED and we decline the assertion that we
`should dismiss this appeal based on an insufficient appendix.
`17
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 18
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`105, 111 (2008). That is, in determining benefit eligibility, “the administrator owes a
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`special duty of loyalty to the plan beneficiaries.” Id.
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`ERISA requires administrators to follow specific procedures for benefit
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`denials. Administrators must “provide adequate notice in writing . . . setting forth the
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`specific reasons for such denial” and “afford a reasonable opportunity . . . for a full
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`and fair review by the appropriate named fiduciary of the decision denying the
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`claim.” 29 U.S.C. § 1133 (emphasis added). Claimants’ full and fair review of a
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`denial must include: “knowing what evidence the decision-maker relied upon, having
`
`an opportunity to address the accuracy and reliability of the evidence, and having the
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`decision-maker consider the evidence presented by both parties prior to reaching and
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`rendering his decision.” Sage v. Automation, Inc. Pensions Plan & Trust, 845 F.2d
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`885, 893-94 (10th Cir. 1988).
`
`Arbitrary and capricious review of the reasonableness of a benefits decision
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`considers if it (1) “was the result of a reasoned and principled process, (2) is
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`consistent with any prior interpretations by the plan administrator, (3) is reasonable
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`in light of any external standards, and (4) is consistent with the purposes of the plan.”
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`Flinders v. Workforce Stabilization Plan of Phillips Petrol. Co., 491 F.3d 1180, 1193
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`(10th Cir. 2007) (internal citations omitted). The “consistent with the purposes of the
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`plan” requirement means a plan administrator acts arbitrarily and capriciously if the
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`administrator “fail[s] to consistently apply the terms of an ERISA plan” or provides
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`“an interpretation inconsistent with the plan’s unambiguous language.” Tracy O. v.
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`Anthem Blue Cross Life & Health Ins., 807 F. App’x 845, 854 (10th Cir. 2020).
`
`
`
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`Appellate Case: 21-4088 Document: 010110859668 Date Filed: 05/15/2023 Page: 19
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`A
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`United alleges it did not arbitrarily and capriciously fail to engage with the
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`opinions of A.K.’s treating physicians. First, United claims it was not required to
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`engage with treating physician opinions. Second, United claims the district co