DISCUSSION

Because the parties are familiar with the facts and procedural background,

we need not restate them here. “ERISA protects employee pensions and other

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

participants and beneficiaries “by establishing standards of conduct, responsibility,

and obligation for fiduciaries,” and “providing for appropriate remedies . . . and

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

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.”

ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).

I.M. asserts a breach of fiduciary duty under § 1132(a)(3), and therefore

must show “both (1) that there is a remediable wrong, i.e., that the plaintiff seeks

relief to redress a violation of ERISA or the terms of a plan; and (2) that the relief

sought is ‘appropriate equitable relief.’” Gabriel v. Alaska Elec. Pension Fund,

773 F.3d 945, 954 (9th Cir. 2014) (internal citations omitted). I.M. fails to

3 establish the first element; thus, the district court properly granted summary

judgment in favor of KFHP.

I.M. contends that KFHP breached its fiduciary duty by improperly

excluding residential treatment for eating disorders from its plan. However, I.M.’s

own course of treatment belies this argument. I.M. spent five days at the Center

for Discovery — a residential treatment facility — before checking himself out

against medical advice. Other than his own declaration, there is no indication that

this treatment was approved as a special, one-time circumstance. Rather, the

evidence and what actually occurred indicates that treatment at the Center for

Discovery was plainly covered in his plan. Undisputed evidence shows that KFHP

covered residential treatment, that it had contracts with residential treatment

centers to provide in-network options, and that it had a referral system to allow for

approval of out-of-network care when necessary. See, e.g., IV ER 422–23, 430–

31; see also II ER 61 (I.M.’s Kaiser plan). I.M. fails to rebut this evidence, relying

only on the speculation of one social worker at Herrick hospital who believed

Kaiser would not cover additional residential care. II ER 37. This is not enough to

defeat summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249–50 (1986) (“If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.”) (internal citations omitted). The

statement is not one of KFHP and plainly is not a denial of benefits.

4 Despite his plan’s coverage, I.M. repeatedly refused to take advantage of

KFHP’s residential treatment options, instead opting for a private, out-of-network

facility. Although I.M. argues that he never turned down in-network residential

treatment, the record proves that he repeatedly told his doctors that he planned to

pursue out-of-network residential options. See, e.g., III ER 316, 341, 352; IV ER

565, 583, 594, 607–08.

Furthermore, I.M.’s reliance on Harlick v. Blue Shield of Cal., 686 F.3d 699

(9th Cir. 2012), is misplaced. Harlick addressed a denial of benefits claim, id. at

707, while, notably, I.M. abandoned his denial of benefits claim after it was

dismissed for failure to exhaust administrative remedies. The plan at issue in

Harlick also expressly excluded residential treatment programs. Id. at 709.

Although I.M.’s plan has some limiting language, it did not expressly exclude all

residential treatment for the treatment of eating disorders and it is undisputed that

I.M.’s residential treatment was covered. Thus, I.M.’s argument that his plan

excluded residential treatment fails.

I.M. also argues that KFHP breached its fiduciary duty by failing to provide

procedures that would enable providers to refer patients with eating disorders to

residential treatment. As evidence of this, I.M. points to his providers’ confusion

about when and how to make such referrals.

Simply put, there is no evidence that KFHP’s procedures (or lack thereof)

5 inhibited I.M. from obtaining residential treatment. Indeed, Dr. Rau, I.M.’s

therapist, testified that she would refer patients for residential treatment through

KFHP’s system and had developed a process for doing so. IV ER 523; SER 150–

51, 157–58. Instead, it was I.M. who either refused to consider residential

treatment or would only consider out-of-network programs when the option was

raised. III ER 316, 341, 352; IV ER 565, 583, 594, 607. Once I.M. decided on

residential treatment, he and his mother solicited Dr. Rau’s opinion on various out-

of-network options and updated Dr. Rau about his progress. IV ER 555–57, 569,

574–75, 579–80, 583, 587, 590–91, 594, 607–08. Just because Dr. Rau did not

directly refer patients to residential programs does not make her ignorant of the

referral process nor does it create a factual dispute. Likewise, that Dr. Rau did not

know of other in-network residential facilities other than the Center for Discovery

does not create a genuine issue of material fact. See Anderson, 477 U.S. at 249–

50. Dr. Rau knew how to refer patients with eating disorders, but it was I.M.’s

own statements that stopped her from going through that process. Ultimately, the

record belies any argument that KFHP erected barriers to residential treatment and,

in fact, KFHP left treatment decisions in the exclusive control of I.M.’s providers.

I.M.’s argument concerning his doctor’s confusion about an alleged “fail

first” policy also fails to establish a breach of fiduciary duty. The confusion arose

out of a communication between Dr. Hazlett, I.M.’s psychiatrist, and Dr. Wang, a

6 doctor at a psychiatry call center. IV ER 474; SER 200. Dr. Wang informed Dr.

Hazlett that in order for I.M. to be hospitalized, he must first fail an eating disorder

intensive outpatient program evaluation. Not only was this communication about

hospitalization — as opposed to residential treatment — but there is no evidence

that such a policy was ever applied to I.M. Mere confusion about how to obtain

hospitalization in one instance is not adequate grounds for finding a breach of

fiduciary duty under ERISA concerning residential treatment.

Finally, it is important to note that administrators like KFHP cannot be held

vicariously liable for its providers’ medical judgments. See Watanabe v. Cal.

Physicians’ Serv., 169 Cal. App. 4th 56, 68 (Cal. Ct. App. 2008) (“[H]ealth care

services plans ‘are not health care providers under any provision of law’ ([Cal. Civ.

Code § 3428(c)]) and therefore cannot be liable for medical malpractice.”).

Although this issue does not apply to I.M.’s allegations regarding KFHP’s policies

and procedures, I.M. appears to try and graft his dissatisfaction with his doctors’

course of treatment onto KFHP. His doctors are not KFHP employees, but instead

are employed by an affiliated company, the Permanente Medical Group.

Therefore, I.M. may not attribute the alleged deficiencies of his doctors to KFHP.

Accordingly, the district court did not err in granting summary judgment in

favor of KFHP.

AFFIRMED.

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