E. et al v. CIGNA Health and Life Insurance Company

Filing 34

MEMORANDUM DECISION AND ORDER granting 20 Motion to Complete the Prelitigation Appeal Record. Signed by Magistrate Judge Daphne A. Oberg on 3/10/25. (dle)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
COMPLETE THE PRELITIGATION
APPEAL RECORD (DOC. NO. 20)

NOELLE E.; and H.E.,
Plaintiffs,
v.

Case No. 2:23-cv-00686

CIGNA HEALTH AND LIFE INSURANCE
COMPANY,

District Judge Howard C. Nielson, Jr.

Defendant.

Magistrate Judge Daphne A. Oberg

H.E. and his mother, Noelle E., brought this action alleging Cigna Health and
Life Insurance Company violated the Employee Retirement Income Security Act of
1974 1 (“ERISA”) by denying insurance coverage for certain medical care H.E.
received. 2 Plaintiffs have moved to complete the administrative record, seeking to
include an appeal letter and exhibits they filed in connection with an external review of
Cigna’s benefits denial. 3 Cigna opposes Plaintiffs’ motion, arguing the documents do
not belong in the administrative record because Cigna itself did not review them during

1 29 U.S.C. §§ 1001 et seq.
2 (See Compl. ¶¶ 49–56, Doc. No. 1.)

Plaintiffs also bring related claims under the
Mental Health Parity and Addiction Equity Act of 2008. (See id. ¶¶ 57–76); 29 U.S.C.
§§ 1185a, 1132.
3 (Mot. to Complete the Prelitigation Appeal R. (“Mot.”), Doc. No. 20.)

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the administrative claim process. 4 Plaintiffs’ motion is granted. The disputed
documents are properly a part of the administrative record.
BACKGROUND
After Cigna initially denied coverage for H.E.’s care, Plaintiffs appealed the denial
through Cigna’s internal appeals process. 5 Cigna upheld its denial, and Plaintiffs
appealed to an external reviewer—as permitted by the insurance plan. 6 For the
external appeal, Plaintiffs submitted an “appeal letter” and several exhibits—again, as
permitted by the plan. 7 Plaintiffs did not submit these documents directly to Cigna. 8
The external reviewer partially overturned Cigna’s decision, finding coverage warranted
for some of the care at issue. 9 Pursuant to the insurance plan, the external reviewer’s

4 (See Def.’s Opp’n to Pls.’ Mot. to Complete the Admin. R. (“Opp’n”), Doc. No. 25.)
5 (See Compl. ¶¶ 26–36, Doc. No. 1.)
6 (See id. ¶¶ 37–38; see Ex. 1 to Mot., “Plan” 96, Doc. No. 20-1 (“You have four (4)

months from receipt of a final adverse determination or from receipt of a waiver of the
internal Appeal process to file a written request for an external Appeal.”).)
7 (See Mot. 5, Doc. No. 20; see Plan 96, Doc. No. 20-1 (“You can submit additional

documentation with your external Appeal request.”).)

8 (See Opp’n 3, Doc. No. 25.)
9 (See Compl. ¶ 44, Doc. No. 1.)

irrelevant to the instant motion.

The grounds for the external reviewer’s decision are

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decision was binding on both Plaintiffs and Cigna. 10 Plaintiffs then filed this action,
seeking full coverage for the care. 11
As required under the scheduling order in this case, Cigna produced a proposed
administrative record to Plaintiffs. 12 Cigna’s proposed record includes “documents
requesting the external review, a letter indicating that the external review had been
assigned, and the determination letter from the external reviewer.”13 But the proposed
record does not include the appeal letter or exhibits Plaintiffs submitted to the external
reviewer. 14 Plaintiffs argue the appeal letter and exhibits should be part of the record,
where they were generated and submitted during the claim process as outlined by the
plan. 15 Plaintiffs also contend the documents provide necessary context for judicial
review of Cigna’s decision. 16 In response, Cigna argues the documents should not be
in the administrative record because Cigna never received or reviewed them. 17

10 (See Plan 97, Doc. No. 20-1 (“The External Appeal Agent’s decision is binding on

both you and us.”).)

11 (See Compl. ¶¶ 49–76, Doc. No. 1.)
12 (See Mot. 2, Doc. No. 20.)
13 (Id. at 4.)
14 (See id.)
15 (See id.; see also Pls.’ Reply in Supp. of Their Mot. for Order to Complete the

Prelitigation Appeal R. (“Reply”), Doc. No. 29 at 3–5.)

16 (See Mot. 4, Doc. No. 20.)
17 (See Opp’n 3, Doc. No. 25 (arguing “the Administrative Record is comprised of

documents before the claim administrator at the time of its final benefit determination,
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LEGAL STANDARDS
Under ERISA, the administrative record consists of “the materials compiled by
the administrator in the course of making his decision.”18 Per ERISA’s regulations, the
claim administrator must compile relevant documents, which includes documents
“submitted, considered, or generated in the course of making the benefit determination,
without regard to whether such document, record, or other information was relied upon
in making the benefit determination.” 19 After the administrative record has been
established, judicial review is generally limited to the record (with some exceptions not
relevant here).
ANALYSIS
Cigna essentially argues documents cannot be in the administrative record
unless the plan administrator actually relies on them in making the benefits decision. 20
This is incorrect. While the administrative record consists of “the materials compiled by
the administrator in the course of making his decision,”21 ERISA requires plan

not documents that were never sent to the claim administrator or ever in the claim
administrator’s possession.”).)
18 Hall v. UNUM Life Ins. Co., 300 F.3d 1197, 1201 (10th Cir. 2002).
19 See 29 C.F.R. § 2560.503-1(m)(8)(ii).
20 (See Opp’n 4, Doc. No. 25 (arguing the disputed documents are not “part of the

Administrative Record because they were never reviewed or compiled by Cigna during
its administrative review process”).)

21 Hall, 300 F.3d at 1201.

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administrators to compile “relevant” documents for the administrative record. 22 And a
document is relevant if “submitted, considered, or generated in the course of making the
benefit determination, without regard to whether such document, record, or other
information was relied upon in making the benefit determination.”23 Where the plan
expressly permitted Plaintiffs to “submit additional documentation” with their external
appeal, 24 the appeal letter and exhibits were submitted and generated in the course of
the benefit determination. 25 Indeed, a review of ERISA cases shows courts regularly
reference external appeal filings as part of the administrative record 26—and Cigna does

22 See 29 C.F.R. § 2560.503-1(j)(3).
23 29 C.F.R. § 2560.503-1(m)(8)(ii); see also Crawford v. Guar. State Bank & Tr. Co.,

No. 22-2542, 2024 U.S. Dist. LEXIS 93312, at *12–13 (D. Kan. May 23, 2024)
(unpublished) (noting, in assessing the scope of the administrative record, that “ERISA
regulations provide that a document is ‘relevant’” if it was “submitted, considered, or
generated in the course of making the benefit determination,” without regard to whether
it was “relied upon in making the benefit determination” (citing 29 C.F.R. §
2560.503-1(m)(8))); Walker v. AT&T Ben. Plan No. 3, 338 F.R.D. 658, 661 (C.D. Cal.
2021) (noting that a document is relevant and part of the administrative record if it was
“submitted, considered, or generated in the course of making the benefit determination,
without regard to whether such document, record, or other information was relied upon
in making the benefit determination” (emphasis in original) (citing 29 C.F.R. §
2560.503-1(m)(8))).
24 (Plan 96, Doc. No. 20-1.)
25 See 29 C.F.R. § 2560.503-1(m)(8)(ii).
26 See, e.g., Tracy O. v. Anthem Blue Cross Life & Health Ins., 807 F. App’x 845, 849

(10th Cir. 2020) (unpublished) (“In their letter to the [external reviewer], [the claimants]
argued that [the insurer] failed to meaningfully engage with their evidence and
arguments.”); S.M. v. United Healthcare Oxford, No. 2:22-cv-00262, 2024 U.S. Dist.
LEXIS 158498, at *12 (D. Utah July 26, 2024) (unpublished) (“S.M. appealed the
decision to an external agency [], arguing that [the provider] was not providing
experimental or unproven treatment to L.M.” (citing “R. 3037”)); C.P. v. United
5

not explain why this case should depart from the norm. 27 In sum, even if Cigna did not
actually rely on these documents, ERISA requires Cigna to include the documents in
the administrative record.
Independent of this, the documents are properly a part of the administrative
record because the external review was binding on Cigna. The Eleventh Circuit
addressed this issue in Alexandra H. v. Oxford Health Insurance Inc. 28 In Alexandra,
the claimant appealed a medical insurance benefits denial through an external process
provided by her insurance plan. 29 After the external reviewer affirmed the insurer’s
decision, the claimant filed suit under ERISA, challenging the insurer’s denial of

Healthcare Ins. Co., 679 F. Supp. 3d 1184, 1189 (D. Utah 2023) (“Plaintiff again
expressly informed the external reviewer that [the treatment facility] was a licensed
residential treatment center and provided proof of the same (citing “A.R. 10500-02”)).
27 Cigna argues Plaintiffs mistakenly rely on several cases where courts “reviewed the

independent external review reports because they were part of the Administrative
Record (i.e., submitted to the claim administrator during the administrative review
process).” (See Opp’n 4–5, Doc. No. 25 (citing Mot. 5, Doc. No. 20).) But Cigna’s
argument is unsupported by the opinions—none of the cases Plaintiffs cited indicate the
external review was submitted to the insurer. See D.K. v. United Behavioral Health, 67
F.4th 1224, 1235 (10th Cir. 2023) (discussing external review without indicating whether
the review was submitted to the insurer); David P. v. United Healthcare Ins. Co., 77
F.4th 1293, 1305 (10th Cir. 2023) (same); J.H. v. Anthem Blue Cross Life & Health Ins.
Co., No. 2:23-CV-00460, 2024 U.S. Dist. LEXIS 88824, at *2 (D. Utah May 16, 2024)
(unpublished) (same); Brian J. v. United Healthcare Ins. Co., 667 F. Supp. 3d 1124,
1130–32 (D. Utah 2023) (same).

28 833 F.3d 1299 (11th Cir. 2016).
29 Id. at 1302.

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benefits. 30 The district court granted summary judgment to the insurer, relying in part
on the record of the external review. 31
On appeal, the claimant argued the external review should have been excluded
from the administrative record because the administrative record closed when the
insurer issued its adverse determination. 32 The Eleventh Circuit disagreed. The court
reasoned that because the external reviewer’s decision was binding on the insurer
under the terms of the plan, the insurer’s “ultimate decision on [the claimant’s] claim
would not have been made until after [the insurer] received the external review.” 33 In
other words, where the insurer “would have been obligated to provide coverage” if the
external review declared the treatment necessary, the external review necessarily
“informed [the insurer’s] ultimate decision to deny benefits.” 34 The court also found the
external review record properly before the district court “as a matter of fairness and
reasonable expectations” where the plan provided that the external appeal decision
would be admissible in any court proceeding. 35

30 Id.
31 See id.
32 See id. at 1312–13.
33 Id. at 1313.
34 Id. at 1312–13.
35 Id. at 1313.

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Alexandra is instructive here. As in Alexandra, Plaintiffs’ external appeal was
binding on Cigna under the terms of the plan. 36 Because of this, Cigna was obligated to
provide coverage if the external reviewer overturned its decision that a service was not
medically necessary. 37 (And the external reviewer did partially overturn Cigna’s denial of
coverage.) 38 This means Cigna could not have made its final decision on the claim until
after receiving the external review results. 39 Accordingly, the external review
necessarily informed Cigna’s ultimate decision to deny benefits. 40 To be sure, the
insurer in Alexandra argued it considered the external review in the sense that it was
bound by it, 41 whereas Cigna denies considering Plaintiffs’ external review submissions

36 (See Plan 97, Doc. No. 20-1 (“The External Appeal Agent’s decision is binding on

both you and us.”).)

37 (See id. (“If the External Appeal Agent overturns our decision that a service is not

Medically Necessary . . . we will provide coverage subject to the other terms and
conditions of this Certificate.”).)
38 (See Compl. ¶ 44, Doc. No. 1.)

39 The fact that Cigna expressly reserved the right to change its decision based on

filings submitted to the external reviewer further illustrates that Cigna’s decision was not
complete until after the external review. (See Plan 96, Doc. No. 20-1 (calling for the
external appeal agent to share any material change in information with Cigna “in order
for us to exercise our right to reconsider our decision”).)

40 See Alexandra H., 833 F.3d at 1312–13; (see also Plan 96, Doc. No. 20-1 (“If the

External Appeal Agent determines that the information you submit represents a material
change from the information on which we based our denial, the External Appeal Agent
will share this information with us in order for us to exercise our right to reconsider our
decision.”).)
41 See Alexandra H., 833 F.3d at 1313 (“[The insurer] contends that it did consider the

external review because [the insurer] would have been required by the benefits plan to
reverse its denial decision if the external review had so found.”).
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despite also being bound by the external review. 42 Either way, the external reviewer
considered the submissions, and the external reviewer’s decision was binding on Cigna
just like it was binding on the insurer in Alexandra. Where the external review informed
Cigna’s ultimate decision—in that Cigna was required to comply with the reviewer’s
finding—it is immaterial whether Cigna actually reviewed the documents in dispute.
Finally, although Cigna argues Plaintiffs did not submit the documents directly to
Cigna, it is Cigna’s responsibility to compile the administrative record. Cigna cannot
stack the deck by unilaterally choosing not to compile documents generated in the
course of the benefits decision. 43 Where the external reviewer partially overturned
Cigna’s denial of coverage, 44 judicial review of Cigna’s benefits decision would be
impracticable without access to the record of the external appeal. 45 As in Alexandra,
the plan here provides that the external reviewer’s decision “is admissible in any court
proceeding,”46 bringing the external review record before the district court “as a matter

42 (See Opp’n 1, Doc. No. 25.)
43 See Walker, 338 F.R.D. at 661 (“Otherwise, ERISA plan administrators could cherry-

pick evidence that supports the denial of a claim when compiling the administrative
record—and all but guarantee victory in every ERISA benefits case . . . .”); cf. Alexandra
H., 833 F.3d at 1313 (“The inclusion of the external appeal in the record cannot depend
on which party it benefits.”).
44 (See Compl. ¶ 44, Doc. No. 1.)
45 Where Cigna agreed to provide coverage if the external reviewer overturned its denial

of coverage—as happened in part here—the record before the external reviewer is
necessary to a full understanding of Cigna’s decision. (See Plan 97, Doc. No. 20-1.)
46 (See Plan 97, Doc. No. 20-1.)

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of fairness and reasonable expectations.” 47 The documents Plaintiffs seek to submit
are properly part of the administrative record.
CONCLUSION
In sum, Cigna must include the appeal letter and exhibits in the administrative
record, as “relevant” documents under ERISA. Where the external review bound Cigna,
these documents informed Cigna’s benefits decision, regardless of whether Cigna
chose to review them. Accordingly, the administrative record must include Plaintiffs’
appeal letter and attached exhibits. Plaintiffs’ motion 48 is granted.
DATED this 10th day of March, 2025.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge

47 Alexandra H., 833 F.3d at 1313.
48 (Doc. No. 20.)

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