NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONTINENTAL MEDICAL TRANSPORT No. 21-35481 LLC, DBA Jet Rescue, D.C. No. 2:20-cv-00115-JCC Plaintiff-Appellant,

v. MEMORANDUM*

HEALTH CARE SERVICE

CORPORATION, DBA Blue Cross Blue Shield of Illinois; BOEING COMPANY

CONSOLIDATED HEALTH AND

WELFARE BENEFIT PLAN,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted March 9, 2022 Portland, Oregon

Before: GRABER and BEA, Circuit Judges, and REISS,** District Judge. Dissent by Judge BEA.

Plaintiff-Appellant Continental Medical Transport LLC, d/b/a Jet Rescue

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. (“Jet Rescue”) appeals the district court’s grant of summary judgment in favor of

Defendants-Appellees The Boeing Company Consolidated Health and Welfare

Benefit Plan (the “Plan”) and Health Care Service Corporation, d/b/a Blue Cross

Blue Shield of Illinois (“Blue Cross”) in this action brought under the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B).

Reviewing de novo the district court’s “choice and application of the

standard of review to decisions by fiduciaries in ERISA cases[]” and its grant of

summary judgment, Nolan v. Heald Coll., 551 F.3d 1148, 1153 (9th Cir. 2009)

(quoting Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962 (9th Cir. 2006)

(en banc)), we affirm.

1. The district court correctly applied an abuse of discretion standard. “When

a plan unambiguously gives the plan administrator discretion to determine

eligibility or construe the plan’s terms, a deferential abuse of discretion standard is

applicable.” Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d

1016, 1023-24 (9th Cir. 2008) (citing Abatie, 458 F.3d at 963). The Plan grants

“full discretionary authority to interpret the Plan” and “determine all questions”

regarding eligibility for benefits to the Plan administrator which was comprised of

a committee (the “Committee”). Although Jet Rescue now argues that the

Committee did not properly delegate its discretion to Blue Cross, thereby

mandating de novo review, in its Complaint, Jet Rescue alleged that Blue Cross

2 exercised fiduciary discretion in its administration of the Plan. On summary

judgment, Jet Rescue argued for the first time that a de novo standard applied. In

response, Blue Cross produced the Committee’s written majority vote to approve

Blue Cross as Plan administrator which was subsequently ratified by Plan

documents reflecting an unequivocal delegation of discretion to Blue Cross.

2. Under either an abuse of discretion or de novo standard, the district

court’s conclusion that D.O.’s air transport from Lima to Miami was not medically

necessary under the Plan was overwhelmingly supported by the record. To qualify

for air transportation, the Plan requires that (1) “[g]round ambulance transportation

is not available[,]” (2) “[y]our condition is unstable and requires medical

supervision and rapid transport[,]” and (3) there is a “medical emergency” and “the

first hospital does not have the required services or facilities to treat your condition

and you need to be transported to another hospital[.]” A “medical emergency” is

defined as

a recent and severe condition, sickness, or injury, including (but not limited to) severe pain, which would lead a prudent layperson . . . possessing an average knowledge of medicine and health, to believe that failure to get immediate medical care could result in[:] [1] Placing your health in serious jeopardy, [2] Serious impairment to one or more bodily functions, [or] [3] Serious dysfunction to one or more body parts or to one or more organs[.] Prior to the Lima to Miami flight, D.O.’s prognosis was “guarded, but in

clinical improvement” at Clinica Delgado, “one of the newest and most advanced

3 hospital facilities in South America.” Clinica Delgado’s discharge notes indicate

that D.O. was “better in terms of organic dysfunctions such as respiratory and

renal” and he was being weaned from mechanical ventilation and only remained

intubated for “airway protection in transportation as he could deteriorate due to his

delicate state.”

Blue Cross advised in advance that the Lima to Miami flight would not be

covered by the Plan because it was not medically necessary. Jet Rescue transported

D.O. anyway after obtaining a sizable deposit from D.O.’s ex-wife. Jackson

Memorial’s intake forms state that D.O.’s ex-wife “decided to move his care to the

U.S. because she could not speak Spanish and did not understand the plan of care.”

After the transport, D.O.’s condition deteriorated. He became septic, experienced

multiorgan failure, and died five days later.

Jackson Memorial’s plan of care was similar to Clinica Delgado’s. The only

treatments Clinica Delgado identified that it could not provide to D.O., an ECMO

machine and a liver transplant, were ones for which D.O. was not a candidate and

which, in any event, were not provided by Jackson Memorial. Although D.O. may

have received additional care and treatment at Jackson Memorial, there is no

evidence that this care and treatment was unavailable at Clinica Delgado. Against

this backdrop, both the district court and Blue Cross properly determined that the

Lima to Miami flight was not medically necessary because there was no “medical

4 emergency” and Clinica Delgado had “the required services or facilities to treat

[D.O.’s] condition.”

3. Contrary to Jet Rescue’s contention, the independent review

organization’s (“IRO”) denial of benefits also does not require de novo review.

ERISA plans are required to provide “full and fair” appeal processes, 29 C.F.R.

§ 2560.503-1(h)(1), including the right to have an adverse benefit determination

involving medical judgment reviewed by an IRO. 42 U.S.C. § 300gg-19(b); 45

C.F.R. § 147.136(d). An IRO’s reversal of an adverse benefit determination is

binding upon a plan, 45 C.F.R. § 147.136(d)(2)(iv), but an affirmance is not, and a

plan may “voluntarily make[] payment on the claim or otherwise provide[] benefits

at any time, including after a final external review decision[.]” 45 C.F.R.

§ 147.136(d)(2)(iii)(B)(7)(v). Accordingly, the IRO’s non-binding affirmance of

Blue Cross’s denial of benefits did not negate Blue Cross’s discretion.

AFFIRMED.

5

FILED

Continental Medical Transport LLC v. Health Care Service Corporation (21-

JUN 7 2022

35481) MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BEA, Senior Circuit Judge, dissenting:

1. The majority holds that Appellee Health Care Service Corporation, d/b/a

Blue Cross Blue Shield of Illinois (“Blue Cross”) was properly delegated fiduciary

responsibility under the terms of The Boeing Company Master Welfare Plan

(“Master Welfare Plan”), and that therefore, the district court properly applied an

abuse of discretion standard to Blue Cross’s denial of benefits to Appellant

Continental Medical Transport LLC, d/b/a Jet Rescue (“Jet Rescue”).1 Not so.

The Boeing Company Consolidated Health and Welfare Benefit Plan (the

“Plan”) is governed by the Master Welfare Plan. Section 4.1 of the Master

Welfare Plan details how the “Plan Administrator” will administer the Plan.2

Concerning the delegation of authority, the Master Welfare Plan reads as follows:

4.3 Delegation of Authority

1 To the extent the majority implies that Jet Rescue is bound by a factual “judicial admission” it made in its Complaint, such an implication is in error. See Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988); see also American Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1064 (9th Cir. 2012). 2 As defined in the Master Welfare Plan:

“Plan Administrator” means the Employee Benefit Plans Committee established by The Boeing Company Board of Directors, except as otherwise specified in the Governing Documents with respect to any Component Benefit Program. The administrative duties and responsibilities set forth in Section 4.1 may be delegated by the Plan Administrator in whatever manner and extent it chooses to such person or persons as it selects.

Any allocation or delegation of fiduciary responsibilities will be in writing, approved by majority vote. An allocation or delegation may be changed or ended by majority vote. Any allocation or delegation may include the power to subdelegate without further recourse to the Plan Administrator.

Thus, the Master Welfare Plan contemplates two types of delegation. The

delegation of “administrative duties and responsibilities” can be delegated “in

whatever manner and extent” the Plan Administrator (or the “Committee”) so

chooses. However, “[a]ny allocation or delegation of fiduciary responsibilities will

be in writing, approved by majority vote.”

The majority concludes that Blue Cross satisfied the Master Welfare Plan’s

fiduciary delegation provision through two disjointed occurrences. First, on

December 18, 2009, the Committee held a meeting, as reflected in the following

meeting minutes (the “Minutes”):

Pam French called the meeting to order.

(1) Health Plan Vendor. Ms. French provided an introduction for the group on the change in the health plan vendor. Mr. White presented the recommendation to the Committee to change health plan vendors no earlier than January 1, 2011, and as soon as administratively practicable thereafter, to Blue Cross Blue Shield of Illinois from Regence Blue Shield. The Committee discussed that communications to employees needed to be clear and concise. There was a motion to accept the recommendation and to authorize Alan May and Pam French to implement the change. The motion passed. (2) Adjournment. Ms. French moved to adjourn the meeting; Mr. May seconded the motion and the meeting was adjourned.

Second, on April 22, 2013, The Boeing Company entered into a signed

Administrative Services Agreement (the “ASA”) with Blue Cross, which states

that the “Effective Date of this Agreement is January 1, 2011.”

To be sure, the ASA explicitly purports to delegate “discretionary authority”

[i.e., fiduciary responsibility] to Blue Cross. However, the ASA was not signed by

both parties until April 23, 2013, and the ASA was signed by only a single

representative from Boeing.3 Moreover, the Minutes do not discuss the existence

of the ASA or of any document presented or discussed at the meeting which

explicitly proposed to delegate fiduciary responsibility to Blue Cross.4 Instead, the

Minutes attest only to a vote to change the Plan’s “vendor” to Blue Cross from

Regence Blue Shield.5 The “vendor” referenced in the Minutes could just as easily

refer to a vendor of the non-fiduciary services contemplated in Section 4.3 of the

Master Welfare Plan as it could to a vendor of the fiduciary services contemplated

in Section 4.3 of the Master Welfare Plan. And as “the default is that the

3 Additionally, it is unclear whether the signatory on behalf of Boeing was even a member of the Plan Committee, further undercutting any connection between this document and the December 18, 2009 meeting. 4 Additionally, at oral argument, counsel for Blue Cross confirmed that there was no evidence in the record establishing that anything in writing proposing to delegate fiduciary responsibility to Blue Cross was considered at the meeting. 5 Contrary to the majority’s description, the Minutes did not “approve Blue Cross as Plan administrator.” administrator has no discretion,” the burden is on the party seeking an abuse of

discretion standard of review to establish that it has been properly delegated

fiduciary responsibility. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th

Cir. 1999). Therefore, I cannot agree that Blue Cross was properly delegated

fiduciary responsibility under the terms of the Master Welfare Plan on the strength

of only nondescript meeting minutes from December 18, 2009, coupled with an

agreement signed April 23, 2013, nearly three and a half years after said meeting,

where the meeting minutes make no reference to any such agreement being

presented or discussed.

2. As I do not believe Blue Cross was properly delegated fiduciary authority

under the terms of the Master Welfare Plan, I am of the view that de novo review

should apply to this case. “If de novo review applies, no further preliminary

analytical steps are required. The court simply proceeds to evaluate whether the

plan administrator correctly or incorrectly denied benefits, without reference to

whether the administrator operated under a conflict of interest.” Abatie v. Alta

Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006).

The majority claims that Blue Cross’s denial of benefits to Jet Rescue can be

affirmed under a de novo standard of review, because, in its view, that “D.O.’s air

transport from Lima to Miami was not medically necessary under the Plan was

overwhelmingly supported by the record.” However, Federal Rule of Civil Procedure 56, which defines the conditions under which summary judgment is to

be granted, does not provide for judgment whenever a conclusion is

“overwhelmingly supported.” Instead, it provides for judgment only when “the

movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). And for

the following reasons, there are genuine disputes as to material facts surrounding

whether D.O.’s air transport from Lima to Miami was medically necessary under

the terms of the Plan.

The majority claims that D.O. received a similar plan of care in Lima as he

did in Miami, such that Jet Rescue failed to raise a genuine dispute of material fact

concerning whether Lima had “the required services or facilities [needed] to treat”

D.O.’s condition. However, on July 16, 2016, Peruvian Doctor Marco Camere of

Clinica Delgado completed a “Physician/Qualified Medical Personnel Statement –

Medical Necessity and Reasonableness for Air Medical Transport” form, wherein

he checked boxes corresponding to the following entries:

- The Patient’s condition is too critical to allow for longer transportation time by ground - Patient requires a higher level of care - The Patient’s condition is too unstable for a ground unit and requires critical care abilities of the air ambulance transport team - Patient requires immediate and rapid transport due to the nature and or severity of the illness / injury: symptomatic hypotension; multi- organ failure; cardiac arrythmia [these bolded entries were manually entered into the form] And after the fact, on January 12, 2017, Dr. Camere provided a letter on behalf of

Jet Rescue, which stated in relevant part as follows:

Due to the patient’s chronic pathologic history (Please refer to Diagnostic) and limits presented in our country, I am recommended [sic] and requested that the patient be transferred via emergency air ambulance. The patient was found in a very high urgency to receive intensive care so he could have a better prognosis to his treatment.

Jackson Memorial Hospital has 1500 beds where they are capable of giving the patient the intensive and specialized care required and resources that our facility cannot count on in our country of Peru like a [ECMO] Machine and ability to perform a Liver Transplant. Jackson Memorial is the closest most appropriate facility that is capable of meeting the needs of the patient critical condition that is unable to be done in Peru.

What’s more, the record indicates that at Jackson Memorial, D.O. received

“continuous renal replacement therapy,” which was a treatment he was not

receiving at Clinica Delgado. Furthermore, while the records from Clinica

Delgado do not indicate the precise level of physician attention D.O. was

receiving, while at Jackson Memorial, D.O. received direct critical care from

multiple medical doctors on at least five separate occasions: (40 minutes of critical

care time on 7/22/2016); (40 minutes of critical care time on 7/23/2016); (35

minutes of critical care time on 7/24/2016); (40 minutes of critical care time on

7/26/2016); (40 minutes of critical care time on 7/27/2016). That D.O. received a

higher degree of physician attention at Jackson Memorial is consistent with Dr. Camere’s statement that D.O. “was found in a very high urgency to receive

intensive care so he could have a better prognosis to his treatment.”

Altogether, Dr. Camere’s statements, along with the documented medical

care received by D.O. at Jackson Memorial, create a genuine dispute of material

fact as to whether or not D.O.’s transport to Jackson Memorial was medically

necessary. Accordingly, I would reverse the district court’s grant of summary

judgment in favor of Blue Cross.