Chava WHITE, Individually and as Next Friend of Evan White, Plaintiff-Appellant, v. ST. LUKE'S EPISCOPAL HEALTH SYSTEM, Defendant-Appellee, 317 F. App'x 390

PER CURIAM: Chava White, a participant in St. Luke’s Episcopal Health System’s (St.Luke’

s) medical plan, was denied coverage for neu-rofeedback therapy based on the policy’s “nonmedical services” exclusion. Because we conclude that all neurofeedback is a nonmedical service under the terms of the plan, we affirm the district court’s grant of

summary judgment in favor of St. Luke’s. I Chava White is an employee of St. Luke’s and a participant in its Medical, Dental & Life Plan (Plan). White’s son, who is also a Plan beneficiary, is afflicted by a congenital condition known as Familial Dysautonomia (FD). FD is a progressive genetic disorder that causes dysfunction of the autonomic and sensory nervous systems. White’s son suffers from FD-related constipation and as a result experiences life-threatening swings in blood pressure.

Accordingly, his primary-care physician prescribed EEG néurofeedback therapy as medically necessary to help manage the constipation problem and thus reduce the incidence of life-threatening autonomic crises. White applied for coverage of the neuro-feedback under the Plan. The

Summary Plan Description defines “Covered Expenses” to include charges that are medically necessary for treatment of injury or sickness. It also contains a number of exclusions, including one for “nonmedical counseling or ancillary services, including i... neurofeedback.” Based on this exclusion, St. Luke’s denied White’s application. After exhausting her administrative remedies, White initiated suit. The district court, concluding that neurofeedback was not covered under the Plan, granted

summary judgment to St. Luke’s. White now appeals. II We “review[]

summary judgments de novo in ERISA cases, applying the same standards as a district court.” An administrator’s denial of benefits under an ERISA plan is “reviewed under a de novo standard unless the benefit plan gives the administrator ... discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Because St. Luke’s is vested with such discretionary authority, its decision to deny benefits is reviewed only for abusé of discretion. However, St.

Luke’s acts as both insurer and administrator of the Plan and thus operates under a “conflict of interest” that should “be weighed as a factor” in determining whether an abuse of discretion occurred. Reviewing an administrator’s decision for abuse of discretion may involve a two-step analysis. “First, a court must determine the legally correct

interpretation of the plan. If the administrator did not give the plan the legally correct

interpretation, the court must then determine whether the administrator’s decision was an abuse of discretion.” If the administrator’s in-terjoretation of the plan is legally correct, no abuse of discretion could have occurred, and our inquiry ends. In determining whether an administrator’s

interpretation of a plan is legally correct, we consider three factors: “(1) whether the administrator has given the plan a uniform construction, (2) whether the

interpretation is consistent with a fair reading of the plan, and (3) any unanticipated costs resulting from different

interpretations of the plan.” Of these, the most important factor to consider is whether the administrator’s

interpretation of the plan is consistent with a fair reading of the plan. “If [the] court concludes that the administrator’s

interpretation is incorrect, the court must then determine whether the administrator abused his discretion.” “Three factors are important in this analysis: (1) the internal consistency of the plan under the administrator’s

interpretation, (2) any relevant regulations formulated by the appropriate administrative agencies, and (3) the factual background of the determination and any inferences of lack of good faith.” White does not argue that St. Luke’s has not uniformly construed the

Summary Plan Description, nor does she allege that there are any unanticipated costs resulting from differing

interpretations. Accordingly, as is often true in ERISA cases, the parties’ dispute concerns the administrator’s

interpretation of the plan. ‘When interpreting plan provisions, we interpret the contract language in an ordinary and popular sense as would a person of average intelligence and experience, such that the language is given its generally accepted meaning if there is one.” III The terms of coverage under the Plan are summarized in the

Summary Plan Description issued by CIGNA Healthcare (CIGNA). The general coverage provision states that “charges made by a Physician or a Psychologist for professional services” are “Covered Expenses to the extent that the services or supplies provided are recommended by a Physician, and are Medically Necessary for the care and treatment of an Injury or Sickness.... ” The

Summary Plan Description also contains a number of exclusions, including an exclusion for: nonmedical counseling or ancillary services, including but not limited to custodial services, education, training, vocational rehabilitation, behavioral training, biofeedback, neurofeedback, hypnosis, sleep therapy, employment counseling, back school, return to work services, work hardening programs, driving safety and services, training, educational therapy or other nonmedical ancillary services for learning disabilities, developmental delays, autism or mental retardation.

White argues that this exclusion encompasses only nonmedical neurofeedback and that consequently neurofeedback of the medical variety remains a covered expense under the

Summary Plan Description. A contrary reading, White argues, would impermissibly render the word “nonmedical” superfluous. White further asserts that whether a particular service is medical depends on the underlying application or purpose for which it is prescribed; specifically, “medical treatment” means treatment that is “medically necessary” to treat a recognized illness. Accordingly, White contends that the exclusion is not applicable in her case because the neurofeedback services for which she requests coverage are medically necessary to treat her son’s illness. We agree with the district court that White’s

interpretation of the exclusion is inconsistent with the plain reading of its terms. The provision categorically defines nonmedical services, and neurofeedback is merely listed as one specific example. Accordingly, the word “nonmedical” is not superfluous as it describes the general category of services encompassed by the exclusion. In sum, the exclusion applies to all neurofeeclback, which is always considered to be a nonmedical service under the Plan, irrespective of the purpose for which it is prescribed. IY Despite the plain language of the

Summary Plan Description, White insists that her

interpretation is correct when considered in light of additional publications related to the Plan. Specifically, White points to CIGNA’s Coverage Position, which was provided as part of the administrative record relied on to deny coverage. The Coverage Position explains that neu-rofeedback, which is classified as a form of biofeedback, may be covered in certain circumstances under some CIGNA plans. It further acknowledges that “biofeedback has been used to treat various medical conditions,” including constipation, and that “CIGNA Healthcare covers biofeedback as medically necessary” for those conditions.

White concludes that since her situation fits squarely within this statement, her claim is covered under the Plan. Although White is correct that the Coverage Position states that biofeedback is covered when considered medically necessary, the document also prefaces this statement by noting that it is applicable only if coverage is available for biofeedback in the first place. The designation of biofeedback as medically necessary does not create coverage for biofeedback in plans in which it is specifically excluded. We also note that, read as a whole, the Coverage Position supports St. Luke’s

interpretation of the

Summary Plan Description rather than White’s. The Coverage Position states: Biofeedback and biofeedback devices are specifically excluded under many CIG-NA Healthcare benefit plans. In addition, biofeedback and biofeedback devices are considered behavioral training and education/training in nature and services that are behavioral training or education/training in nature'are explicitly excluded under most benefit plans. It is notable that this provision makes no distinction between medical or nonmedical forms of biofeedback.

Rather, the provision is most naturally read to mean that all such services are usually excluded and nonmedical in nature, which is consistent with St. Luke’s reading of the

Summary Plan Description. Finally, White argues that the

Summary Plan Description should be interpreted in her favor because more particularized standards apply where, as here, the administrator bases its denial of benefits on the

Summary Plan Description rather than the Plan itself. White is correct that ERISA guidelines require that

Summary Plan Descriptions be “written in a manner calculated to be understood by the average plan participant” and that any ambiguities therein must be resolved in favor of the beneficiary. However, as we explained, the relevant exclusion is not ambiguous. The mere fact that the benefit denial was based on clear language in the

Summary Plan Description rather than the Plan itself does not allow White to create ambiguities where they do not exist. In any event, no abuse of discretion has occurred. As noted, in this circuit we traditionally apply a two-step analysis in reviewing a denial of benefits under an ERISA plan. Even if the beneficiary demonstrates that the administrator’s

interpretation of the plan was legally erroneous, we still must determine that the administrator abused its discretion before its decision may be invalidated. St. Luke’s conducted a thorough review of White’s claim and its ultimate denial of benefits was at a minimum based on a reasonable

interpretation of the

Summary Plan Description as well as the plan. Accordingly, St. Luke’s did not abuse its discretion and its decision may not be disturbed. Accordingly, we AFFIRM the district court’s grant of

summary judgment. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 392 (5th Cir.2006). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); accord Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 342 (5th Cir.2002). . See Robinson, 443 F.3d at 395. . Metro. Life Ins. Co. v.

Glenn, -U.S.-, 128 S.Ct. 2343, 2348, 2350, 171 L.Ed.2d 299 (2008) (emphasis and internal quotation mark omitted); accord Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir.2008). . Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637 (5th Cir.1992). . Id. . Crowell, 541 F.3d at 312. . Id. (citing Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292-93 (5th Cir.1998)). . Id. at 313. . Wildbur, 974 F.2d at 638. . Id. . See e.g., Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 228 (5th Cir.2004); Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 344-45 (5th Cir.2002). . Chacko v.

Sabre, Inc., 473 F.3d 604, 612 . (5th Cir.2006) (quoting Keszenheimer v. Reliance Standard Life Ins. Co., 402 F.3d 504, 507 (5th Cir.2005)). . Rhorer v. Raytheon Eng’rs & Constructors, Inc., 181 F.3d 634, 640-41 (5th Cir.1999) (citing Hansen v. Cont’l Ins. Co., 940 F.2d 971, 980 (5th Cir.1991)). . See Wise v. El Paso Natural Gas Co., 986 F.2d 929, 939-40 (5th Cir.1993). . See Wilclbur, 974 F.2d at 637. . Id.