d had a reason basis for its decision that jamie butler did not meet the plain criteria for substance abuse residential treatment on february eighth two thousand and five and indeed look no further in the administrative records in the actual criteria which is that they are when t n in the note from united's initial reviewing physician dr charles st it a or one thirty three the criteria reads like this and by the way this is the first criteria which is the criteria on which the district court based its opinion the criteria says this history of continued in severe substance abuse despite appropriate motivation in recent treatment in a of outpatient proportional hospital program dr fried's note on a r one thirty three says this attending physician indicates that member has not been in intensive outpatient or partial hospitalization level of care within the past three months she was in a p in september for a few days and left against medical advice she seems to have had insufficient motivation members now attending groups seems more motivated in speaking directly with the attending physician in this case dr charles fried makes two things an issue recency inappropriate motivation and in talking about motivation he states that earlier which was five months before jenny butler had been in a treatment program and had relapsed four times and had eventually left when she was lifted to the next level of care which was partial hospitalization she left against medical advice that shone on a r one twenty two and as a matter of fact mr john bell her husband is the one who actually called the facility and stated that she was not going to return because she wasn't ready for treatment when dr fried reviews the case he looks and he talks to the attending physician and by the way this is the only material in the administrative record from jenny butler's attending physician at sere tucson talks to the tinning physicians says ok she wasn't motivated for treatment before but now we're we're seeing that she's participating in groups having been through detoxification and she is appropriate motivated for treatment therefore let's try her an intensive outpatient and see how that goes this time with appropriate motivation cyr to someone had requested residential treatment the levels of treatment are sort of in five levels it's an oversimplification but residential treatment would be a level for being next to the highest level of care  rs the supervision and intensive outpatient would be level two level four well in this particular case according to the plane craft tyria the reason why she didn't need level four is that the  criteria or built around the the a m a guidelines and what they say is there for substance abuse although it might seem like more is better the least restrictive level of care that will provide the support that they need at the time it's what is going to what is the appropriate level of care in this particular case you know you're not the one that did all this but i mean this record is ridiculous i mean the number of mistakes made by your client i mean that i really can't understand the district courts and patients with what was going on here i mean i take it you agree there were some serious mistakes made during each of these reviews i gree that there there were mistakes made with this procedures no question about that but up the wrong guideline not having the record having her treating physicians i mean those are those cut to the core of the whole point there nine years in there's obviously no one can dispute this woman had a serious problem oh no you are and that's been that's never has been a to speed the dispute was simply on this particular day at this time when she finished detoxification what was the appropriate level of care under the plan and according to  zero seven eight it is absolute seem so easy what why couldn't you get the right physician stuff in the record account for the treating physicians and what they were really saying and then respond to it in just seems don't i really understand that i'm fact you know one could make the argument the district court judge was too patient this should ended long ago well in this particular case your honor when you have in substance abuse treatment it's dissimilar to things fried had the information he needed because he talked directly to the attending physician at the time and that particular that particular decision is the question was was there reason basis for his decision at the time the procedural errors that you're talking about the year by the way three independent reviewing physicians all agreed with what dr fried and they all mentioned the motivation issues so yes they were along the way they were procedural they were procedural issues but it only mean that you had about a rule that says listen yes you get an incredible amount of deference in interpreting your own plan yes and that's all well and good that's just the way it works but you know that at some point when you can't seem to get your ducks in a row the right way you've got someone who you just acknowledged has a very serious medical problem yes you just say is enough is enough i mean the mistakes were your fault they weren't her fault and this is just gone way too long the in the mistakes were procedural in nature and when the bakley similar enough with the deference i mean when you make that many mistakes why defer any more well the because ultimately the decision was not wrong and that was determined in the final review  two additional physicians the question again and there's no question your honor i'm not i'm not here trying to say that there were no procedural problems here what i am saying is under the law under the law here united made the right decision there's a reason basis in the record in the procedural issues that we don't along the way were eventually corrected what do we wish they hadn't happen absolutely gets your way of looking at it is huge assess the application the day it's filed and then you are allowed to ignore everything that happens jump forward nine years in the if by the end of nine years united actually does get its ducks in a row does have five positions does account for her treating physicians does finally apply the right guideline all is forgiven  basically it basically under the law that is it your honor if the decision is correct you know what so what why is it going to be so hurtful to other health care companies insurance companies to say no that's not how we're doing it when you make this many procedural gaffes and you've got someone that everyone agrees needed the treatment from the beginning some serious treatment from the beginning you know you had your shot it ministering this in a fair way with deference to you when we did and when we in the process what we would like to have seen would have made it a lot easier if there had been materials added to the record by the plaintiff that did anything to change the original analysis yes and then one of the other two docs well there actually were there actually were a total of five reviewing docs and in the in the materials that mr butler put in you have one  from the medical directors here tucson that generally describes what happened during residential treatment you have a one paragraph letter from an outpatient physician from knoxville who had seen are off and on and a second letter from him you have a letter from the collections person is here to sign that says and this is six and a half years after the fact saying you need to pay for this treatment she deserved it and stating in that letter we're providing records with this letter for you to review proof  saying no records came with that letter and you also have a letter from a treating professional an addiction specialist not a physician at a halfway house and recovery group center that apparently jamie butler talked to none of these people could speak to janie baelish condition on feb eighteenth when she finished detox the cation only her attending could speak to that and that's the very information that united got and they didn't get information that you referred us to page one thirty four and in that statement this is by freed yes and there's the statement the patient does not have a history of prior failed treatment at the person hospitalization or intensive outpatient levels of care yes that correct well it's qualified on the page for this is a continuation of the no that starts on one thirty three and what he says is within the past three months she has had recent she has a treatment the past three months he references her treatment five months before when she left against reason to be worried that nothing good will come of it so i get that point but doesn't a lack of motivation kind of cut the other way when it comes to going to a place like tucson and isn't that kind of the point to get them away from some of the bad influences now lives even just the setting in which they've been living and abusing alcohol and so i guess trying to figure out how that plays into the services she really requested and it seems to me really needed the motivation issue one of the issues why it seems like more would be better in a residential in this kind of a setting is that you would think that isolating the person and getting them away from the influence would be best yes actually the approach by the american stock after dissociation is listed on a or two ninety six by the final reviewing physicians says the more that you can get the person in the community they're going to be setting they're going to be living in while they're getting the treatment the better the you up the level of treatment so clearly the community based approach wasn't working so that's just because tucson failed doesn't mean she wasn't eligible for it but that goes back to the motivation issue the whole a free to all point here is trying to trying to establish the proper level of care she didn't have the motivation apparently before now she does the issue isn't let's get in the hospital care let's store where we think she needs to be if she fails the they coordinate care and they coordinate the the payment for actual medical treatment that are curse and if there's some document that calls them the claims administrator there's not there's a document to states that they are not the plan administrator and that my name is james right i'm an attorney in knoxville tennessee practicing law there for some thirty four years now and i think judge sutton started out exactly right except for  they never got it right when you look at it when i first discussed this mr butler this looked like a game but is with somebody is life in terms of in when you zero six when the administrative mr butler's appealing at the time that he is appealing he writes a letter he's already requested that they provide him the records they tell him no he calls up it's in their administrative record and they refused to give him say going to the hospital so how does he get the records from the hospital that they reviewed if they're saying we've reviewed over and over and over again we've reviewed medical records he in he does that on february sixth when he tells them i'm going to appeal i want the records i want their criteria and i'm going to submit additional evidence before he can do any of that on feb twenty two of two thousand and six they already have had dr clemente review and find against him using the wrong and more criteria before we can even get the records and we're going to do anything on march first he receives what they claim to be what they reviewed and it's the wrong criteria but he did know it i think i think we showed at the first part of the argument that we understood the mistakes they made on it's just give me a quick answer why what he did it if she you your client does have the burden of showing that this care was required and they do face a tough interview it is right here maybe their point is you know yes they made mistakes but so did you know here we go they submit from the referring physician to on to severe tucson the doctor that made their approach says she needs to go but then why wouldn't it be helpful to have the person treating or to going to that is that now to be the first doctor who makes the referral saying she needs to go see specifically she failed an intensive thorpe and i don't have the page reference the actual medical director rights and i may have to supplement the actual medical director rights and says the same thing at two seventy five mr butler has failed outpatient therapy with dr jumps and outpatient alcoholics anonymous discharging against a m a from ridgeview intensive outpatient program she binge drink four to five times per day drink six to seven vodka drinks per episode with blackouts and no recollection of for events she endorses using xanax and he ends up going treatment at the residential medical healthcare level providing necessary and structured emotional safety was necessary he said midst the referring doctor that she had previously tried and failed intensive outpatient care at ridge view and by the way in their records when they're saying that we knew that they are wrong because they say that she left after a few days  which they don't include in the record either but from their own claims notes that are here they no that not only had she failed but the other situation was here's what they say twenty one twenty three one twenty five exactly one twenty three but she had relapsed this is from their claims notes that are already there parent that she had relapsed four times even in intensive outpatient she had failed after almost a month of inpatient outpatient the situation they describe united schrab says graham she needs a more intensive level of care needs the structural integrity of a higher level of care she is in a higher risk of relapse and this is at the end of her completion of twenty eight to thirty days at ridge feed and it no place does any of their reviewers discuss or go into why isn't that pertinent to why this person doesn't need after they're saying that she needs a higher level of care the one of the things that bothered me and i agree procedurally there are huge problems but medically if you're using the wrong criteria and they use the wrong criteria all the way through they've never i don't think if you look at it even in their last review the one back home anywhere they said it's amazing when this record closes they've used their own criteria only after the filing of the lawsuit do they claim we've discovered we use their own criteria we're going to do another review but then that there's actually another administrate record or record that they had produced a butler that had the wrong criteria so the butler is going to be submitting any materials during an appeals process he's got the wrong critter in not only does he have the criteria but the treating doctor has the wrong criteria he's already been paid this year tucson has their own criteria so throughout this process nobody has the right criteria it's seven months into the lawsuit that says that for the first time go we used the wrong criteria here's the correct criteria but it's interesting if you look at doctor committees review clemente doesn't follow the criteria he in essence criticizes the criteria if you look at the second page of it he says even though she has failed outpatient care that had mean she would better again basically he in essence is acknowledging she failed it which is the criteria but then says well maybe she could do it again that means she want to be and ask you to turn to the word of statutory penalties and address united's argument that they weren't the plan administrator when it comes to that phrase the way it's used when the penalties is with ministre to or when it comes to seventy six of the record when it says what we are they say we help financial they didn't help finance this plan plans paid for by the law firm and  total power total control to mention that that seems to be the be the key thing which i'm interested in your reaction and balance reaction so the statute says defines the ministers as the quote person specifically so designated by the terms of the instrument under which the plane is operated and quote or if an administrator is not so designated the plant sponsor now you would agree the law firms the plant sponsor right i'm going to plant the law firm in it in that particular section described as the employer oak ok yeah ok me it's ok so we're on the same page and i take it your way of looking at the statute is to say well if united gets discretion over what the plan odd pages and in particular in the page where they're asked what their position is they said they were it ministry or they didn't define themselves as a claims ministre or a but i mean if that's not very helpful if it's possible you can be an administrator for purposes of deference over what the plan means but yet not be quote the plan administrator under one thousand and two and i'm saying i do see what you're saying and want to add to it is that math feeling about is if this were an employee employer situation and somebody is trying to say i was an independent contractor and if my relationship said you know employer employer employee relationship but the contract in six words said i am not an employer you're an independent contractor the court would look at the totality of the document and go you said you were the administrator you didn't limit your role and say well we're just a claims administrator you exercised complete control and deference and then throughout the city and i mean if you're if there's two different ways of thinking of the term administrator i just don't understand why you're calling it a stop or you've already conceded this one there are distinct they're terms that can have distinct meanings and it's a fair reason to think why they might use the term for the reason relating to deference as opposed to the reason of being quote the plan admin which this company never did by the way and in terms and that's important not just the procedure but it's an important term sort of but they never that the criteria was set aside by the medical proof submitted and that they never ever showed a rational basis that it was if you followed it but so you can have a situation where the employer the law firm in this case is the quote administrator right we would agree with that that can happen yeah you could  that ok so if that happens and the employer the law firm has this insurance company united out there paying the claims who then gets you still have united making the calls as to whether someone is disabled or needs this or that medical service right you had you wouldn't say the law firm now is the one that gets deference over what the plan means wouldn't you know act the case law it talks about that the very purpose of eleven thirty two c is to make sure that the that the plan it ministration united in this situation who's carrying out all of these functions that's the purpose of eleven thirty two c and that's the purpose of this regulation is as it says that the plan participants have access to the information they need to protect their interests well there's no other way to employment this but what's happened is  shall provide these things and then it says is there anything that says that united is the plan administrator i think throughout their pleadings they go through and say we're in the planets in their pleadings i think in pleadings they do it and the plan i don't know if you describe yourself as the administrators or and that you say we have all control that that you can mount disclaim because you say six words on page seventy seven one hundred pledged document and seventy seven i don't really see what but they were pointing to frank i don't see it and that's why i'm curious from both of you where in the plane is there anything  ministration of this policy so in regard to the administration of this policy which is the plan they are the administrator there's nobody else minister reading this policy but what do you have you've pointed out this plan administrator that seems it's in tiny letters so that i missed it but it seems pretty clear i guess but what you have a problem with this is that in the previous space they described themselves as administering the plan and then of the page afterwords they say that we have the ability to assign and whatever the administration of the plan that's what gets me back to if they wanted to make sure to somebody they and when you say that your main argument in your briefs and i think still today has been about what they said in their pleadings and the use of the word administrator and plan administrator but i think it carries through from the beginning i'm just making the point you c d if they were the claims administrator we'd be they would be right on the statutory penalties point and i'm just saying when you don't have the adjective claims in front of administrator and all their pleadings it doesn't mean it's a whatever years there are cases of course the courts very familiar with with the first the fifth in the ninth circuit it's a control it's the factor i'm thinking it's if you look at what happens when you look at the regs in terms of what makes sense if the planet ministre or the insurer that sells this plan to the law firm can by bearing away six words on page seventy seven book plan say by the way we're not planet four hundred pages talk about how we are the administrator and we have the slow reader of claims when they don't never say claims they just mean that's the point i know don't know what at the missing adjective means where we don't y agree with you but my point is is that if you do this there's no teeth whatsoever as the supreme court originally said is the purpose of living thirty two which was to provide some teeth there is no teeth in this there are no teeth in th situation and i'm out of time and i'm now know what your honor to have to stop me i'm going to quit thank you very much for your patience i appreciate it and i apologise for not getting certain things were wrong that were there were there were some procedural things along the way but the opposition just said that we used or own criteria throughout the entire this case that's inaccurate there's one single time that the first  independent reviewer reviewed the case and of their own criteria we caught that supplied him with a rock opera tyria any reviewed the case that's the only physician you provide the correct criteria to the claimants here the what happened to you know the answer is no at the beginning he got it when we filed the administrative record in this lawsuit well so how would any normal person know that what they needed to provide in order not meaning fully bad but are intentionally bad but it seems to me if you know just thinking about yourself as a patient if you don't know what you're supposed to show and it's one of these complicated areas like alcohol say i mean it sounds like what your point in terms of the defense to this is ok fine we gave them the wrong information about the guidelines here and what to do but that was corrected when the administrative record was created right was the change pointed out yes the huge butler knew the residential criteria when the record was filed ok but and there were three and a half years later he had the opportunity to put any thing in the record he wanted to so it was it was not until let's go to the specifically say we're not the plan administrator under six circuit lol if no plan administrator is named then it is possible to be the claims administrator not the plan administrator but still be the one that gets deference about what the plan means yes you are that's correct is that true throughout the country or just in the sixth circuit i believe that i can speak to that believe it's true throughout the country but i can't speak specifically so you took us to a are seventy seven w plan yes ok is there any state anywhere that you are the claims administrator there's not your honor is there any statement that anybody is the claims administrator there is no is it is it fair to people who are buying a plan to or people who are covered by a plan to have it be in such small print we are not the plan administrat firm that is buying the plan it is wrong and so they should know that the default rule is that they are the plan administrator that the law firm is the plan administrator right well they should know by reading the plan that united is not the planet ministry but with it am i right that the default rule when when the plan says united is not the plan administrator and does not say that smith and company is the plan administrator things claims administrator think medical benefits think coordination of medical benefits ordination of payment for medical benefits which the norm so i mean take a will even just leave that law firms there are thousands off firms with the united what is the norm it depends on the policy on if the there is no normal i'm asking what the normal policy does with a normal policy for united depending it it does depend on the policy but it is generally united in insurers like united typically are recognized as claims administrators there are a number of cases we've cited in our brief that make this distinction i know and you're typically not the planning ministry and not typically are typically a claims of mastery yes norm and how by out de united other folks that do it the fact is though he insurers can be plan administratorship it's not that they're excluded from doing so i'm just saying i think for the net but i guess i guess now that the more i think about it that's you offer a bundle of services to your clients yes and when your plan administrator that's an additional service with an additional cost best correct you're going to be the ones that all the employees talk to and and i guess someone wants to save some for failing to give the documents with the criteria to the individual but is that right that's correct ok and it and you're saying that you because you are not a play mr you have no duty to provide the documents for the sake of argument that we were the plan administrator which the the plan says we're not case law is clear that the particular regulation that requires us to provide things like internal documents statutory penalties under section eleven thirty two are not available for a violation of regulation that implements section eleven thirty three so in this case even if we were the plan administrator in the case last clear on that even if it says even if the plan administrator could violate section eleven eleven thirty three it couldn't be sanctioned under eleven thirty two for that lation because they deal with separate things eleven thirty three deals with the plan itself eleven thirty two deals with the responsibilities of the plan administrator