condition for years including two hospitalizations in two thousand and fourteen as well as extensive outpatient treatment with a number of providers and unfortunately nothing was working for as a result in may of two thousand and fourteen elizabeth was admitted to the p h p or partial hospitalization program all over pyatt centers this is a facility in florida that specializes in the treatment of eating disorders and was there that she finally began receiving the intensive treatment that she needed and slowly she improved unfortunately the reward for improvement was the denial of her claim for benefits with defendant empire sixty days later members decision and the district court's ruling which upheld that decision were incorrect and on appeal we've presented three reasons why we think that so first we believe the district court used the incorrect standard of review second we believe the district court gave insufficient weight to plaintiffs evidence regarding the doctor's denial rates and finally the just a court erred in finding that under the terms of the plan that elizabeth was titled the benefits so i guess all attack the standard of review issue first almost the court has interest in one of the other issues stener was an important issue in these cases and under firestone which is the supreme court decision that governs these cases the default standard of review is denote and that means the burden is on the defendant to prove that it has been given a clear and unambiguous grant of discretionary authority in order to avoid that to no view and that's what this court why don't we have that in this language here and this language we should have all the powers necessary to approach and appropriate to enable us to carry out our duties including without limitation there to the powers you construe this contract to terminal questions arising under this contract and to make an established in there after change rules and regulations and procedures with respect to this contract but the difficulty with this language is that it merely describes what empires duties are does not explain that they have discretionary authority in performing those duties the kinds of things that this language we shall have all powers necessary without limitation and to to construe the contract to determine all questions you don't think that's language that gives the administrative discretion no because these are the kinds of things that administrators do with with every plan or every insurance policy of course they have the power to construe the contract that's what insurance companies do want to claim is presented to the have to construe the contract to determine whether benefits are payable or not if there's a question that arises under the contract of course they have to resolve it they are the one who is they're the ones who are administering the plan so something more is needed and right before the ones that my colleagues quoted says we may develop word up standards which describe in more detail when we will or will not make payments under this contract does that not give them the power to effectively make their own rules as to what's covered and what's not even beyond what's in the contract well i don't think so your honor because that again is the kind of thing that inevitably arises in these types of policies this is a medical benefit policy so you ha issue in this case is whether the care is medically necessary right yes and in the section that defines medical necessity the contract says medically necessary means care which according to our criteria and in our judgment is and then after that it sets forth the various criteria that you rely on pretty heavily but it does say according to our criteria and our judgment doesn't and i don't know how you c get more discretionary language than to say this is what we're going to look at but what counts is our judgment but i understand that argument but the real here's why i don't think it works in this case and and there's something that makes this case different from all the other cases that are cited by empire and cited by the just court below and this is the fact that there are if you look at this plan as a whole and of course we need to do that since the recipients are fundamentally contracts so we look at the entire contract in order to determine what the parties intent is and if you look at this contract there are places in this plan where empire has granted itself explicitly discretionary authority to do things and and and let's be honest that's what's going on here empire is granting itself discretionary authority this is not a situation where we have a plan and insurance company and they're operating at arm's length the plan on the policy are the same thing here empire wrote and so if you look at it to see what they intended you'll see that they gave themselves discretionary authority explicitly they use the word our sole discretion with regard to experimental an investigational treatments they also give themselves discretionary authority in order to determine who is a bona fide union member so the fact that they use this explicit language in certain parts of their policy and not another suggest that they didn't intend to give themselves the type of authority that they're asking for here ok well i think we have your argument in that you also argue though that even if there is discretion and even if the standard is arbitrary and capricious that this decision was arbitrary and capricious right that's correct your honor and there's two reasons why we think that so first we presented evidence regarding the denial rates of the doctors who were involved in this case  three of the four doctors who were used had denial rates that exceeded ninety percent and we believe that by tyria where they applying it occurs to me that if they were applying the criteria in this contract for w p care is appropriate they're pretty stringent criteria they go beyond what the american psychiatric association suggests and it seems to me they make it rather hard to approve that kind of treatment there's a little this is a tough contract as far as getting p h p treatment but i don't think so your honor i think actually if you look at the empire's guidelines they're they're not particularly stringent and i think that if the court looks at the evidence regarding elizabeth's treatment it will see that she did meet that criteria but you know the another question about that those denial rates do we know whether those are initial denial rates or denials after approval because this was not a case where p h p treatment was denied it was granted and it was granted repeatedly for short periods adding up to a total of two months right so this is this is not a case where the reviewers said no you can't have that there's a case where they said oh you can have that and then there was a judgment made as to whether the improvement been sufficient to move to a different kind of treatment that's true your honor and i don't know i don't think the statistics are so far broken down with regard to at what stage those denials took place and that's the complaint raised by empire and by just a court below about this evidence is that it's not sufficiently specific anything in the record about what kind of cases the doctors were viewing with regard to this cases the doctors are all psychiatry so we know that they were anything more specific than that your honor no i don't believe that that's reflected in the statistics and i and i understand that there is an objection that this this is this evidence is too general but realistically and practically plaintiffs are never going to taint statistical evidence for exactly the factual scenario in every case and because i can i get to the heart of this decision really which is the plaintiff was treated for two months in this program and was showing considerable  improvement i'm correct am i not that that there was never a goal that she would stay in that facility forever at some point she's supposed to transition to another less or less restrictive form of treatment so we have here do we not is just a medical judgment about whether it's time or not time at that at that particular point to make that transition yes john i think you're getting at the heart of this case and really this central the heart of empires denial which was yes you still need treatment but you don't need it at this level and i think the evidence shows that that's not correct and the reason why that is because there's a big difference between p h p treatment which is what outpatient program you're on your own but the people would play it eventually all so made a decision that it was time for her to make a transition that was a month later two months later six weeks later right so i mean we're dealing with a kind  of medical judgment issue and unlike the case with the social security reviews that we sometimes do there's not a rule that says you have to defer to the treating physician you have two different doctors taking why shouldn't we think that we have a case of two different doctors or really several doctors of the piat and making a collective judgment and several different reviewers at the insurance company and just reaching different conclusions about whether the improvement had been sufficient to ratchet down to the next level well clearly that's what happened we have competing medical opinions and even under abuse of discretion review which we of course argue is not appropriate here even under abuse of discretion or you the court still has a duty to dig into that evidence and see whether it's supported by these doctors reports it will look to see which doctor suppose they which doctors are right and our medical judgment know what the court needs to do is look at the doctors opinions and see if they comport with the plan and empires guidelines and that's something that the court can do we're not asking the court to be doctors of course and how doctors but but what we can do is look at n p r s guidelines and if you look at the doctor's opinions in this case they comport with the guidelines and in fact in many cases what they said are contradicted by the guidelines for example one of the reasons that they offered for why she did not need the p h p treatment anymore was that she was compliant with their treatment and in fact compliance with treatment is a factor that weighs in favor of paragons also they said that she was medically stable but medical stability is a factor that weighs in favor of p h p treatment if you're not medically stable then you actually need a higher level of care and also they said she wasn't violent she wasn't suicidal or homicidal well if you're suicidal or homicidal you can't have p h p treatment you need a higher level of cheats and so these doctors at first these reports at first blush sound persuasive we have four different doctors saying this thing how can we disagree with it if you really dig into what they actually said the factors that they're raising in support of the denials don't bear any relation to what the guidelines are and so that's why we think that the decision should be overturned in this case thank you starting point again we believe that it was correct in applying the arbitrary and capricious standard of review and as such that the only way that a medical necessity determination is arbitrary and capricious is if it's without reason unsupported by substantial evidence as a matter of law going off of that your honor i also do want to bring up something that was discussed earlier and a patient's physicians  asked to address was did the doctors who made this decision properly apply or indeed apply at all the criteria in the contract your honor they not only need to apply the criteria in the contract but they did apply the criteria in the contract the plan not only requires that the appellant meet the five criteria for medical necessity but that for the p h p treatment which is the eating disorder treatment at issue here that the treatment inpatient treatment was no longer medically necessary there had been since no substantial weight gain there had been compliance with the treatment and based on his professional opinion and the application of the criteria within the the difference is in the standard i understood your honor and the difference for the standard is for the inpatient treatment it would have to meet the severe illness criteria and the severity of illness criteria looks at whether the patient is stable enough to receive treatment at an outpatient facility so to parse that out into the two separate standards the inpatient standard obviously is much more stringent and the doctor would have to look at it again through its scope as a physician would i'm not going purport to be a physician or and when you're looking at the outpatient treatment which each of the four doctors said would be appropriate in the situation there is a less intensive treatment that would be allowed due to the current condition of the opponent at that time and again applying the arbitrary and capricious standard overview of the core is not should not imply occurred to me as i looked at what i think happened here and you can correct me if i misunderstand the record is that these approvals are doled out for a rather short period of time each time they're given right and then when the first reviewing doctor decided that the commitment in the p h p was no longer medically necessary that was more or less that they fifty nine and as i read it the idea was a starting tomorrow you're not covered is there no provision for any and is that is there not some problem that there is not if there is not a provision for some kind of adjustment period it would seem to me that if the  physicians thought that she needed more treatment and would be expecting to give her more treatment they weren't preparing her as one would expect would be appropriate for a transition down  my right that the plan doctor said sorry you're done period end of story tomorrow you either pay the bill yourself or your you've got to find a doctor arrange a complete transition to some other form of treatment as best you can let us know who you are consulting and what you want us to pay for and i am taking heed of your honor's position on this point but what i will say is there were nine consecutive recertification for varying ranges of time and at the time that a priest certification is granted the not only does the facility here all of her pious but also the appellant is made aware of the amount of days allotted for that treatment so to the extent that they are aware that the end of that pre certified treatment is in fact coming to an end they do have that end date and at that point that's a pretty bumpy ride i mean then in the very first  certification it's sort of already start transitioning to something else before you even know that they're that's going to happen because she was in very bad shape when she first started out i don't i don't know what the this is an argument that's raised by the plaintiff as such and i'm kind of going on lee on my own amateur assumption that if you're for example taking a drug and suddenly there is as you need that drug anymore might be a good idea to have a step down that if you're having intensive inpatient treatment it makes a difference whether you're expecting that treatment to end at the end of the week or you have no idea certification request is being reviewed the the reviewing physician and the administrator is looking at a snapshot they're capturing a snapshot at the time that they're making the pre certified cation requests so the same appellant and the physicians at the facility are going on a journey here the administrator is going on the same journey and to the extent that there is a progression say in the right direction then the administrator has a duty to look at whether or not continued inpatient treatment is necessary or it should be set down to a lower level of care so i understand your your honour's position on this point but again th your honour's query on this point and i do appreciate it and i will say that again there was fifty nine days of approved treatment from may fifth to july second on july third there had been enough progression that empire as the administrator of the plan made a determination that that treatment was no longer medically necessary they didn't shut the door they didn't shut the door at all and actually each of the four a viewing physician said a less intensive lower level of care would be safe and appropriate here so to that end your honor each of the determinations made by the reviewing physicians again for reviewing physicians were based on substantial evidence and there is a lot of information in the record that these physicians exceeded the bounds of what they even needed to and what is really afforded by the court in various decisions and made inquiries with all of our sort of conference calls and also looked at additional submissions through the course of the review made an application for give us another week to make a transition they were taking a kind of all or nothing position that what's necessary is continued treatment at this facility for indefinitely until decide not necessary based on the administrative record that i have again that snapshot period i don't believe that there is any reflection of that of that inquiry you know it would be prudent for me to say that maybe it happened during one of the conference calls but from the documentation that i have that's part of the administrative record there's there's nothing to suggest that i see my time is almost up if the court has any additional questions if not we will rest on the submission of our papers very briefly your honor i want to return to the issue i was discussing at the end of my argument which is the difference between p h p treatment and i o p intensive outpatient treatment and just one just a question about the  about the empire's criterion with regard to intensive outpatient treatment and the similarities between what's the what's the distinction is there some critical language that if you have this you get the p h p but if you don't you fall back into the other or not well the distinction in these guidelines is primarily about the amount of treatment you're receiving and this is the point i want to make at all replied she was receiving twelve hours per day treatment constant supervision and real support under the empire guidelines they characterize intense about patient treatment has three hours of treatment three days a week right but the question is which is necessary right i mean right that's i mean what one of the problems of looking at these criteria is some of them seem to be drafted with a view to determining you know we're not going to cover something that calls itself p h p but doesn't have this level of treatment or we're not going to cover something that calls itself the whatever the next level of outpatient treatment if it doesn't provide at least this amount you know which is a valuable criterion but it doesn't tell you when one or the other is medically necessary it just tells you that in order to qualify as a facility that we're going to cover to provide this treatment you have to give this much that's that's what you're talking about now is the difference in how much treatment is given right not what the criteria is for deciding which one you need if there is one well you know what i think even under the empire's guidelines there's a pretty big jump  that's why when p h p treatment is denied ministers need to be very sure that they're stepping someone down to the right level and it's also important because it's in the minister's best interest to be cautious because as one own doctor said in the record if you step someone down too soon you're not actually saving any money this is not actually beneficial to anybody it doesn't help the patient and doesn't help the insurance company because this person's going to be back at a higher level of care