Scott GROUDINE, M.D., Plaintiff-Appellant, v. ALBANY MEDICAL CENTER GROUP HEALTH INSURANCE PLAN, Defendant-Appellee, 615 F. App'x 51

SUMMARY ORDER Plaintiff Scott Groudine, M.D. (“Plaintiff’) appeals from the judgment of the United States District Court for the Northern District of New York (Mordue, /.), granting

summary judgment in favor of defendant-appellee Albany Medical Center Group Health Insurance Plan (the “Plan”). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. 1. We review the district court’s grant of

summary judgment de novo and apply the same legal standard as the district court. Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir.2009). A challenge to the denial of benefits by an employee benefit plan governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132, is reviewed under an arbitrary and capricious standard if the benefit plan gives the plan administrator discretion to determine benefits eligibility or to construe the terms of the plan; otherwise, the denial is reviewed de novo. Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir.1995).

The district court held that the denial of benefits for the treatment of Plaintiffs daughter, L. Groudine, at Laurel Hill Inn Residential Treatment Program (“Laurel Hill”) was appropriate under either standard. It therefore did not determine whether the Plan delegated discretionary authority to determine benefits eligibility to administrative subcontractor ValueOptions, Inc. (“ValueOptions”). We agree. 2. Residential care is clearly excluded from coverage under the

Summary Plan Description; partial hospitalization is covered, subject to conditions. Plaintiff has failed to raise any material issue of fact as to whether L. Groudine received partial hospitalization treatment while she was admitted to Laurel Hill; all of the evidence the parties have put before the Court supports solely the conclusion that she did not. The program itself is termed the “Residential Treatment Program,” J.A. 680, and Laurel Hill’s first billing statement billed its services as “residential treatment,” J.A. 118.

Plaintiff has come forward with no evidence that supports his contention that residential treatment is merely a subset of partial hospitalization, as opposed to something different in kind. The parties variously cite the

Summary Plan Description, Regan Declaration, ValueOptions Provider Handbook, Laurel Hill Inn Residential Treatment Program description, and Medicare regulations; all require the conclusion that these are different types of treatment, and that L. Groudine received residential care at Laurel Hill. Plaintiff has provided no evidence to the contrary. Accordingly, the district court was correct to grant

summary judgment on Plaintiffs claim to recover the amount of benefits denied for L. Groudine’s treatment at Laurel Hill. 3. Plaintiff has raised no dispute of material fact as to whether he was entitled to additional reimbursement for L. Groud-ine’s partial hospitalization treatment at Oliver Pyatt Center. The Plan has submitted evidence establishing that the amount Plaintiff was reimbursed exceeded the maximum possible reimbursement under the “usual, customary and reasonable” (“UCR”) formula that Plaintiff contends the Plan should have used to determine his benefits.

Plaintiff contends that the improper billing code was used to determine this UCR reimbursement rate. However, he made no attempt to submit countervailing evidence of a proper code or rate. Plaintiff argues that the Plan’s evidence as to the UCR rate should be disregarded because the Plan first submitted the evidence in its reply and opposition to Plaintiffs cross-motion below. However, we agree that the complaint did not give notice that Plaintiff believed the UCR rate should have been used to determine benefits; he first raised this argument in his cross-motion and opposition to the Plan’s motion for

summary judgment. Moreover, Plaintiff had the opportunity to request permission to submit a reply in support of his cross-motion, see N.D.N.Y. Local Rule 7.1(c); he has offered no reason for his failure to do so, or for his failure to submit evidence of the UCR rate in such a reply or in his cross-motion and opposition. For the foregoing reasons, and finding no merit in Plaintiffs other arguments, we hereby AFFIRM the judgment of the district court. . The district court also denied Plaintiff's cross-motion for

summary judgment and Plaintiff’s motion to strike certain evidence submitted by the Plan. Plaintiff does not challenge these rulings. Nor does Plaintiff challenge the district court’s grant of

summary judgment on his cause of action for equitable relief. . Our consideration of the Regan Declaration and ValueOptions Provider Handbook does not mean that we have determined ValueOp-tions’ determination to be deserving of deference. See Appellant's Reply Br. at 8. Plaintiff himself cites to the descriptions set forth in the ValueOptions Provider Handbook as evidence of the meaning of the two types of treatment, Appellant’s Opening Br. at 19; Appellant’s Reply Br. at 9, so we consider them along with the other evidence in the record.