present a straightforward application of the well played complaint rule because if the trial court had accepted as true a well played allegations in our complaint concerning condit issue here it should have upheld our claims as presenting possible allegation for medically necessary devices to patients who are insured by aetna plans as an out of network provider try three obtained assignments of benefits from its patients and then smith's claims to aetna which pays try three directly in the complaint in this action compression pumps to help patients heal after surgeries which were not in fact covered under the patient's health care plans etna therefore determined that these claims were not properly payable and issued a retroactive nial benefits thereby demanding to try three repay over six hundred thousand and eight benefits in making that decision however edna provided no opportunity for try three to appeal or to challenge internally the decision that these services were not covered under the patient's plans but she went for you went forward go challenging it we tried to challenge it we repeatedly tried to argue and tried present arguments about how these were proper benefits and were properly payable in a sense all edited continually is to try to negotiate how much you have to pay they never provided what's referred to as a full and fair review under way you can actually look at the plan documents i mean there are a basic argument is their conclusion was these pumps were not covered under our plans under  and well the art the argument that they make is that that try three have build the wrong code but then the argument was but it's whatever code you would have billed we would not have covered that service and in fact was explicitly alleged  on the same issue when somebody is trying to recover previously paid benefit and what they argue this by doing that you're really still challenging and here's what i think i think is critical the fourth circuit application of the recess is not dependent on when a three they referred to the potential of a medicare fraud issue on a couple of letters there is never any allegation there was fraud by try three include and in fact if you look at the specific allegations by another in the complaint it belies that entire suggestion on paragraph twenty five of the complaint and the sent a letter on august thirteenth two thousand and ten to try three where it stated that it was a title to a covered repayment quote even if there was no wrongdoing on the part of try three because it plans do not cover the device try three provided and at is entitle to recover payments made pursuant to the overpaying recovery statute without regard to fault that was the position of an edit was the when i was trying to get it and what's critical here also this comes from  it may please the court my name is thomas so i represent the department of labor in this appeal the crux of this case is relatively simple and straightforward try three in this complaint is very filing a claim for benefits and the participant the challenge that belief through a through a structured claims procedure and then have the right to challenge it in federal court i'm sure that there's a court they just assume that what it believes to be the plan terms is the correct interpretation of the plan determination of what in this circumstance where the request for reimbursement is based upon a change in the original plan it was in a grant of benefits so and that had originally granted the benefits and now is changing its mind and seeking the reimbursement and its theory as allege in the complaint is that it interpreted the path incorrectly the first time so right now that reimbursement based on a reinterpretation of the plan should be subject to the current procedure which is specifically geared towards allowing the beneficiary in this or to go through a process to determine what is the proper interpretation of the plan what happens what happens  one is what law governs the dispute between the parties and on that point our submission is that the execution of a fraud using plan language is still a fraud and it does not become governed by second  and the third one is is the department of labor correct in being concerned to this is that the conduct by insurer such as at night in trying to root out fraud will result in a verse consequences to the member patient that first issue is probably the most well maybe it's because this is the first issue it seemed like the district court looked at the complaint and then moved looked at the contentions of the event and adopted almost  stock and barrel the idea that there was a fraud i think here and dismissed it to some of their bases and i think the district court got that that idea from the complaint that was filed in this case and i would love dearly for the when he gets up again what is the point of this lawsuit if you look at paragraph one thousand they say they still have the money we paid the money we cannot get or as a treasure pointed out on till we successfully sue them for if you look and extinguished by federal law if you were willing to hold that that that is on rule they would consider this a loss because all the district court did in this case was to rule as many claim if you look at the point of the complaint it is to beat us to the court house not to or they can get a favorable federal federal grant as a state forum as we might have chosen in indiana but they can see that the correction that section  extinguish is our rock way our point here is that just as the defendant in beyond the who lied about somebody who was a patient but was not his wife use the term plans it is almost a universal rule that a health plan will not cover vitamins ok they're good there they're actually approved by the f d a but they're just not covered if you are a doctor who benefit and therefore wrongfully pays but the execution of the fraud is the use of the lingo that have been promulgated by c m s for the submission of planes to furnish  on the basis of fraudulent statements or incorrect billing we don't have to cover this device i think if you ask mr hoffer he will say that he would like to live to fight another day in district court but that it to essence of his complaint is to use section  and unfortunately risk invites races to the courthouses were fraud claims exist it doesn't mean that they didn't had that they weren't in a race that they were allowed to run now but that's an interesting point that may courthouse right but that doesn't mean that in beating me to the courthouse to assert the same file but to claim that is to say that i would do it i think there's a question before us is whether or not the court should have dismissed this case on a motion to dismiss and i was going to turn to that because i think both the oil and mr hoffer given very short hair trip to the district court it is obvious from the even from the allegations of a complaint that the essence of the case is at least to the courthouse because of detect investigate and prevent false or fraudulent insurance claims the in parody of what follows is the detail of how that unit with which exists for the purpose of rooting out fraud was dogging them in their view is we submitted a bill for services and we did get paid and we would like to keep the money with are you suing us for fraud or take that characterization but it's about it's about payment i thought about not having to reimburse money that was already paid surely but you could have said the exact same thing about the beyond the case in the second circuit or what the person lied about his wife that outlives she did go to the other girls i think goes a little more modest he re they seem to be saying is that we just want you process right well what did the research that's what they're saying but but here is a very important aspect of the case the process that they claim is instead of accepting this of mission of a number that goes into the computer and spits out a check i don't magically when we see this code number from new we're going to ask for the backup because now we know that it is vitamins and not hard medicine and so it is something that we are lawfully entitle to do in every case to ask for the backup for the services and all of the documentation to show that the claim is a proper one it is something that we don't not saying this is a dispute about coverage quite coverage we are saying you used the label for something that you knew was covered in order to knowingly get paid for something  determine whether it was government well it is possible as you said in the past the case that in some of these cases in which there is an independent duty there will be a need to console the plan in beyond the  is the claim that we are making one that looks through an independent duty that the provider had as every person in the state has not to engage in fraud or is it at this beauty really would terms of the coverage that are afforded to the member this is not mo something else in order to claim coverage is like saying i gave you an aspirin and and got paid for hard medicine that is the essence of the claim so even though the execution of the fraud was done  is not one that involves coverage under the plan because some of the things that are submitted and successfully paid are obviously cover our point as you lie about what it is that you were giving  money going forward basis we're not going to we're not going to accept this right and tellingly and you also know this from their complaint they switched all of the claims to another sub eighteen it is unfounded but if the resolution you would give to that concern is that i have to go to the district court and file an answer that asserts fraud that is fine in my world look at the substance of what the dispute is about to end dissipate what it is that you seeking a declaration are and if you look at paragraph fifty of the complaint it's perfectly evident that what they really want is not so much a declaration  coverage but to keep their money based on a declaration that they're right that we claim to sue them for fraud does not exist under the statute and that it's that is the key to the case so long as we wind up point  in asking for the money back we're not claiming those misconduct we have the right to get this and they said even if there wasn't fraud we're entitled to it back is not covered yes but the other thing i want to make clear about is that it was that's obviously the basis for the district court's decision if we was and that's because i nine of the complaint this is how it operates on a broad basis not just strike three when they make a repayment demand they put the provider into prepayment review which means the provider is not going to get paid anything going forward our allegation is that itself is part of the arbitrarily deny you through prepayment review without you have an opportunity to contest as future iles will under ursa will potentially but what happens is they have huge delays built then they'll say well we're looking at it we're reviewing it we want more documentation you know but if you're right you're going to get your money in the subsequent client so eventually eventually but it may not happen for years because of the delays built in by the process but secondly what that nikken do is recoup and what that means is in some future and they've done this with other plaintiffs they haven't yet done it with try three but when a provider smith a new claim instead of paying that claim they'll say that's appropriate covered serviceable we're not going to give it to you we're going to apply it to this debt you pay for us if they do that they collect that ever to do it and the risk doesn't apply that happens all the time including byetta and what they're doing is taking the money without the due process and that goes to the final issue even if they sue under fraud the question is there's never been a full and fair review under which