plaintiffs in this case the st issue that is important for the court considers the threshold issue in any receive benefits case which is what so what's the appropriate standard of review this is an issue that the t circuit has dealt with repeatedly that with the most recently in the case of hodgins life insurance company of north america which we submitted the supplemental authority yesterday that was a case it was decided on april nd two thousand and nineteen in that case the th circuit illustrated the importance of examining carefully what language if any exists in the governing plan document or the summary plan description whatever's provided to the participants and beneficiaries so that they'll understand what their benefits are that case as well as many others in the th circuit or across the country illustrates the need for full disclosure of discretionary authority language before a plan is able to come to you and request deference to their decision the supreme court in the firestone tire of rivers of rock case in one thousand nine hundred and eighty nine made very clear the default standard of review is did no and that's critical the standard of review makes the difference oftentimes between winning and losing these cases coquitlam instrument unquote that was not provided until literally the time the st submissions were provided the trial court district court on motions for summary judgment that was provided by the defense and we said wait wait wait this isn't a document the district court to allow that document to come in and alter the relationship between the parties as to what the standard of review would be and i think that's fairly clear the district court suggested that there was an ability on the part of the defendants to read the documents together in terms of presenting discretionary authority language to the court that would allow it to utilize an abuse of discretion what  the and the reason is that it should be done though it was because there simply never any language that was presented in the summary plan description to participants in beneficiaries giving them notice of any discretionary authority now notice is critical we've got to syria was case participants and beneficiaries of their rights and obligations under an hour of supplant is at the core of what a risk is all about and so in that sense we think it for the district court to say either the associate the administrative services agreement  just a labor services contract and you spell out what the rights in the obligations of each party are and but you don't specify if this goes to litigation what standard would political in the state district court or the federal district court it seems to be that there is an argument at least that the standard a review of the decision maker is something that is independent of the rights and obligations of the parties well that may be in some other circumstances but certainly not the case in the context of a regressive a risk that is all tied to what rights and obligations are disclosed and the reason for that is that the court's view these arista plans very much as contractual documents and it's a contractual relationship talk about but overlaid on that is a fiduciary relationship because the congress in the in the federal judiciary recognized we're not at all dealing with people who are anywhere where you have other contractual relationships where relatively equal bargaining power relatively sophisticated parties that doesn't apply here though that that fiduciary obligation to disclose is critically important to the rest of functioning effectively so i think that those things are in place and one of the things that we've talked about the defendants that america and microsoft say well listen we were reading these things together the district court adopted the idea that you could read these things together that the eugene s case in this court from this precedent from the th circuit is distinguishable eugena said you could under certain circumstances read a summary plan description with a policy a group policy was the term that was used in that case but that's because the s p d referred to the group policy that's distinguishable from the situation we also contend that there were violations of the summary or other claim procedure regulations that are recent has that take it down to dyno we've argued before which i had as a case in which i've argued before halo versus yale health plans a case from the nd circuit should be something that the th circuit takes a harder closer look at in terms of whether we allow the substantial compliance doctrine of the pla procedure regulations to continue forward that's something that's brief why i don't feel the need to repeat it here in oral argument but we do think that there were some violations of the claim procedure regulations that justify taking the otherwise abuse of discretion standard of your strategy in argument but there is one aspect that i was a little curious about and that and it was a footnote in preparers i think was one of six that said that the regulations under the affordable in title forty five dollars a c f r specifically contemplate that there's going to be new additional evidence so with regard to the administrative review process the argument implicitly i think is that well there wasn't a shift in the rationale because now the regulations under the affordable care act this effectively assume that there is going to be new and additional evidence presented on administrative review how do you answer that well i think that you can have i mean that's in in some degree in the process of the administrative appeals process the litigation process you're going to have if you're going to have a meaningful dialogue which this court has said has to take place that contemplates some understanding of defenses of arguments and evidence and information that would suggest an evolution of thinking i don't have a problem with that i think the problem is and this is a very fact sense and terminations judge back i don't think that you can overlay it with one simple rule that says it always applies or all of us apply this to when a shifting rationale is disingenuous or when it's on there so this is a situation where the district court said yes they shifted rationale here but it was understandable and it was permissible i have a tendency to think of other cases where shifting rationale is more clearly problematic from my perspective so that aspect of the district court's ruling doesn't really trouble me that much but i think the problem is we never had a chance to ever present to the primera microsoft an argument about medical necessity for the shop woman that argument was made as the last appeal internally to premier and they said the only other resort you have in terms of getting a review on this is to ask an external reviewer to look at it we believe that we should have had an opportunity to present information to premier as part of the internal review process on the medical necessity issue they chose not to do it there's nothing in the claim procedure regulations that right now as i can see require them to do that but i think america like bush and i don't know ransomed your question is we didn't know at the time that it was available to when did you find out when that they submitted the planet's ferment with the declaration of opposing counsel when pereira and microsoft look at the criteria in a way that the reviewers did look at the criteria and we've made the argument in the briefs that there are references particularly in the premier review from all i have a reviewer that's on page fo record there's a reference on page four hundred and twenty four dollars to the almost review in which they talk about whether the patient wasn't homicidal or suicidal or actively psychotic that's the wrong measuring stick you can't measure medical necessity of these kids based on the think i'm giving you this medical policy these are our internal primera criteria but what you want you to determine as i understand it is based on current prevailing medical standards  based on the play an instrument criteria for medical to ceci was this care residential treatment care or medically necessary so it really doesn't matter whether there was a conflict with the specific language in the medical policy because that's not what they were being asked to do when they weren't asked being asked to do that but the problem is again going back to the contractual nature of the relationship between the parties if the family had the ability to say look the language in the plan in the s p d or in the criteria that should have been used is something that we're entitled to receive we don't we can't we don't need to tolerate some changing of the criteria that's going back to beat i don't know how that what i'm asking you is on the merits the serious question i mean that's a good argument i arrow review or were being or should have been asked to consider the ira should have been looking at the language of the policy under the terms of the plan for it to look at anything else is a violation of the terms the plan you can send up to external review  the walk and the external review or can say what they want but if they don't use the correct measuring stick as lined up in the terms of the plan there's a problem did it how did they put it aside the medical policy and the play an instrument criteria for a medical description to the need to have significantly impaired functioning if you have significantly repaired impaired functioning or behavioral disc control that requires twenty four seventh's treatment and that's what we had here in a way that  the independent review or not neither the independent reviewer nor promote and that's it you're saying that's not in the medical policy that's in the play an instrument that's in the planet's from i believe it's in the criteria to your honor i can't tell you which one where specifically that one which applies but it does not it's the we are told that the s p d does not have an internal reference to the plan to the plan instrument sec or record that is incorrect your honor if you look in the record at nine hundred and fifty you will see a reference to the right of the member to receive the plan documents by the very nature of that the title of the document it is a summary plan description the very  if you look on page nine hundred and fifty under internal review in time frame it says there in the st paragraph you may ask for examine and receive free copy the copies of all pertinent plan documents records and other information relevant to your claims by asking primera so if you are doing an appeal and you want to look at the totality of the plan document you can absolutely do that what's the heading for that paragraph that you just mentioned internal review and timeframe  review it right right and so if you're looking to ditch took to find out all of the plan documents that are going to govern your ability to go through it in ministry of the people within her mare a then you can get all of these documents but that has nothing to do but your with what you ever series arc it's all about judicial it isn't a paragraph or judicial review it doesn't say anything about your ability to get play in the uk i don't think in the summary plan description there's anything about judicial a view other than  under the law of the state it's not a final determination once the i n r all comes out but you raise an interesting policy issue your honor which is why are we met seeing apples and oranges here mr king makes an interesting we want when we're talking about the plan description the road viewers to be doing and this is why we have deference because we are sending these claims to independent review both time with an independent child psychologists we did not want the child psychologist thinking you know i get deferential review so this is good i don't have to be thorough and and do this absolutely correctly we want those reviewers probably as a matter of also arguing that there are things that could have happened in this administrative review that turn the review back to node no despite the discretionary clause in the plan documents so it is t facile to say that that judicial review is somehow part of that administrative process it really is but i agree with mr king that the member isn't titled to look at the plan document she is a it does not have it has this general how this plan works in that set and it talks about the health saving plan generally and it says what it does and it does tell you that this is a working document as a summary plan discretion is to help you with the specifics for implementing the terms of that plan that does yeah and i would like your honor at page nine hundred and one where you find that they're under the two hundred and two thousand and fifteen summary plan description and i think to the point of it all to the point that the say that washington requires an independent review was that actually  happen automatically it has to be requested by the member and it's very telling because you will also see in the plan and i think this is pretty important that the plan kno when that is requested as mandated by washington state law that claim goes to the insurance commissioner for adjudication it is out of the hand  administrator at that point the administrator is bound to by the decision and it says so in the plan description and cannot alter the result at that point there is nothing that they as minister is doing it's mandated by state law it is the review were selected by the insurance commissioner and the plan is bound by that result in on top of that your honor it's this case is a case about that system in that regulatory overlay working for a member you can see the immense amount of due process that this claim receives st it goes to dr small who is it from mera behavioral health specialist he looks at it and says if this person requires twenty four hour seven hours of confinement and a never forget in these cases this is two hundred and forty seven confinement of a child it is not something to be taken lightly he says you actually calls the provider and says you have to have a psychiatric evaluation within forty eight hours before you can find a child she has to be under the care of a psychiatry us every week she needs to see the psych nurse and she needs to be at a minimum group in individual therapy twice a week this facility says we don't do that in fact you'll know from the records she never saw in psychiatry us or any medical doctor intel eleven days after confinement on that basis alone he says no then he the letter goes out to the members and says you are entitled to appeal this and you can submit whatever you want in that appeal now contrary to what counsel said to you the mother wrote a lengthy passionate and very detailed thorough and helpful letter at that point and that matter says a lot about the medical necessity issue it is just false that they did not get an opportunity  did not in fact address that medical necessity issue on the st appeal and you'll see that in the record it one thousand and seventy five a day of unilaterally decided to address the intensity of the problem but they were responding to the in and so do you treat frazier that she was responding to both your honor well actually the facility responded to the intensity of treatment they wrote a letter back by the way they didn't say that she sees the psychiatry as once a week and you will find from looking at the record she did not see a psychiatry s but for at most once a month and they skipped many months she was there for what fourteen to fifteen months some months she never sees a psychiatry at all so but the mother's letter is very thoughtful about the psychologist looks at two issues one does this fit the medical necessity definition and in addition the behavioral treatment medical policy that overlays that for the confinement of a child tw seven determines now that in the pen a reviewer also looks at the issue of is this the standard of care in medicine for this situation and says yes at that point the plant the members receive another letter saying this is what was determined you are entitled to do another independent review with the insurance commissioner can only interview or train of thought but just to make sure i understand and that's the doctor hartman one is ok there's a generalized medical necessity definition in the summary i have escaped sent the summary plan description also says we rely on specific medical policies for specific issues and you can see it in there and we have a medical policy that speaks to the actual science on your particular condition we will also look at that too but i thought of told dr hartmann in the arrow reviewer don't focus on the medical policy you're right they asked him two questions one is is it correct under the medical policy in the plan what we have done he says yes and then they say to dr hartmann also please tell us is our medical policy correct are we using the right medical policy here and is our political policy state of the art he says yes now it's a little different under the ira because that statutorily mandated end there at the washington statute says the medical reviewer is not b ound by the medical necessity definition in the plan documents so he is free to diverged from that if he feels that the plan is applying the wrong medical policy and so in that would be you see he says this is the medical  consensus on this and actually does in fact look at the medical policy as well so they're looking at the totality of this description and this is important because the in this kind of circles back i think to our policy issues about the standard of review we want to empower the medical doctor to do the right thing here for the member and that's what's happening here and this vast amount of regulatory overlay is there to protect the member from two things one is a bad medical decision in also an infirm medical policy being applied to that particular member everything here shows that due process was afforded and this was the correct decision now your honor ask a question about what we were doing to novo review here think that if you are looking at it from that standpoint if you look at that admitting psychological evaluation in that's in the record it one thousand one hundred and forty three it's really the moment that the plan needs to see is this person in significant impairment enough to require twenty four seventh's confinement not to lease for fifteen months of her adolescent life again a very significant psychological moment in the life of a child and it's done lemon days after admission there is nothing in that record that says that she's a harm to herself harm to others or that she's in a psychological state that requires this level of a tent city every reviewer who has looked at this has said she needed mental health treatment but she needed a lower level of intensity she needed outpatient treatment she needed a partial hospitalization and the goal of that in the literature is to keep the child with the family to keep the child stabilized in society not to confine them outside and it's very if you look your honour's at what the child says and what the parents say about why they have admitted her and the child says to learn and use coping skills for anxiety that's her self diagnosis of why she is there in the parent say they want her to be more confident less depressed less anxious and that is it and you see what happens in the treatments banter she spends a lot of time in classes she goes to self esteem class she goes to body image class she goes to art therapy she goes to anti bullying she goes to friendship development classes these are probably all lot of tory and beneficial things for the just some lark that the parents decided to put her in this tree mn facility they had to take her out of school put her in this home and she couldn't even do the home they own program because of her and her  mental problems and it was told by doctors you need to go to this facility and so that seems like a pretty good argument that it was medically necessary which she's got doctors say yeah you have a choice if you get her in this facility two things agree she needs medical treatment no one is questioning that but she needs the right level of care and that is if this is harmful to mental health patient to over tree asked to under treat right we have to get this at the life right level care and every reviewer says you're right let's put her in partial hospitalization let's get her outpatient treatment but not two hundred and forty seven confinement under the literature this is not helpful to the child and it is not what is require  nd point this in this is important the reference to another physician saying that she needs to be confined two hundred and forty seven only appears once in the record and that is in the letter from the mother with the original and she says the counsellor said that that is the only place what we don't have is talent we don't have any letter from the treating physician none we do not have a single letter in this record from somebody who saw this child contemporaneous speaking to the level of care issue we don't have a psychiatrist we don't have a counsellor we don't have anything all we have is the mother saying somebody said this would be a good thing to me now in the question for the important time is up but of there is one quest remain that is with respect to this intermediate level of care that you say this may be the more appropriate way to deal with this case is that currently being offered to this child there it is coming and under the plan they have two questions all right thank you why isn't that less or e the short answer to the dilemma in this case why isn't the appropriate level of care that is the present state of the record the well that's the question is what is the appropriate level of care now you've got individuals who were devising the family treating this young woman in new york before she went out to utah they were saying you need residential treatment and that's what the individual recommendations of those who knew that family best a knew that child best are far different than paper reviewers in terms of their ability to assess the medical necessity of the child so i think what is appropriate and we haven't been as clear in the briefing i was struck with this as i came over reviewing this we haven't been as clear asking you what would like would like to remain and with a no go standard or overview to the district court to carry policy yes the medical necessity criteria that talks about significantly impaired functioning or behavioral district disk control requires two hundred and forty seven treatment now i'm not saying well necessarily when that a group we could win i mean we could lose either where we're in front let's look at the child here for a moment just so you know the family the family was committed to this child's welfare that child got the treatment that she needed fortunately for her at this facility and she has continued to get the treatment it's just a question of whether