your honour's job gavin on behalf of plaintiff spectrum health district court erred in this case quite simply because it over read the very narrow explanation of review issued by the plan beneficiary whose claim has been denied setting forth the specific reasons for that and i'll written in a manner to be calculated to be understood by parties as i deconstruct that i see three essential issues was there adequate notice with a specific reason calculated in a manner to be understood by this case mr grew up in this case we believe that the district court erring clued in that the e o are at issue the explanation of you provided such adequate notice in a manner calculated to be understood by the r r and has approximately one sentence explanation as to why the claim here was denied saying the service medicine or supply appears to be experimental or investigational as defined by the plan that was the sum and substance when you strip away all of the different versions that were submitted to the district court that was the sum and substance of the communication provided about why the plan  using to pay this particular service there are a basic argument using this country that's that is correct or their basic argument your honor is that this was sufficient to communicate exactly why the claim was  isn't that they're claiming aren't think that that's dependent upon the fact that you had already coded it that way and that's that the basis of why it's sufficient that came out later on that's correct your honor but it but it only came out after there was correspondence issued by spectrum in april and may of two thousand and sixteen it wasn't until that initial correspondence and i think it was may twenty third of twenty sixteen where the plan actually articulated here's why this was a coding issue from our perspective and so the initial explanation of you said nothing about any kind of coding error or problem it just simply said this appears to be experimental or invested did code it did the hospital coded hospital did  and did that coding turn out to be correct i mean i think you know get get to the end of the surprise but was this an experimental the answer is you're on no it was not experimental investigation as defined by the plan however the hospital did in incorrectly code the claim on the uniform billing that i'm sure the corps is aware in the ordinary course of these transactions and uniform billing are you be is generated by a provider and submitted to a plan and then that you be will have specific coding on it identifying various revenue codes and that's really to be compliant with medicare rules but the industry standard in any event this particular claim which in compass not only approximately four hundred thousand and seventy dollars four hundred seventy thousand dollars in medical care one of the codes on the you be specifically as defense point out correctly in their grief said it was listed as an f d a investigation device that was the pumping process now traditionally those devices were implanted by a sonata essentially the they were they open up the chest wall put that end closed well what has since been determined is better the system itself there's no dispute that that is a valid device that is used all the time but the method the particular method of implantation by using the store economy approach was what was new so to speak and so that is what caused the coding error in the b of the fact that it was implanted in that method as opposed to the device itself but there's not a dispute that the device itself is not investigation that is that i'm aware of your honor i mean the only dispute that we've seen from the plan is they say well you coded in improperly therefore it's denied now of course when we walk through the language of the plan there's nothing that speaks to coding whatsoever we actually have to analyze under very for specific materia whether or not a particular service supply or device satisfies one of those criteria to be considered experimental or investigation and those are so those criteria are set forth in there in our papers and can as you can see from your review of the o b no they're nowhere to be referenced or found and i think this is the key point about why the specific reason or the adequate notice is so critical in a case like this the whole concept the basic concept with support here is that the essential purpose of this of this statute is to notify they participant or beneficiary of the specific reasons so they can have a meaningful ability an opportunity to appeal and challenge that t someone like mr group is left to guess or speculate about why the plan is concluding a particular service or supply is experimental in that he or anyone can't have a meaningful review of that  l or a meaningful opportunity to challenge that and we think that is adequately supported throughout this court case law the clarke case the vendor clock case certainly the the murphy mcarthur versus to you have to either you have a greater you have not done to this day i can tell you that i have represented spectrum for a number of years and in a situation like this whenever we have pursued it well at base the mistake was spectrums i would agree well there is one other problem that that the defendants point to and that is the fact that there was a something like a nine month wait when things are supposed to be done in  hundred eighty days with an explanation for that i can explain exactly why or honor and i would say two things one i agree with your honor that there is one hundred eighty day appeal clock but our whole argument  ticking until there is sufficient information correct but i'm just wondering how does this get going who who first said as well wait a minute there sponsibility is it to say wait a minute this isn't enough information this could be a coding error i mean if the patient supposed to be able to pick up on that and i well i'll say two things ron first i think the intent of section eleven thirty three is that an explanation review should allow the patient or someone to be able to pick up now why the delay in this particular case i can answer that in this case spectrum is a party to a network agreement and as part of that process when a plane goes out the door to its to the in an ordinary building process there is as mr dwyer in his brief points out there's electronic correspondence between the parties and that are trying to correspondence there was actually improper coding of the response by the t p a or the third party ministry who instead of categorizing it in the coding as an experimental investigation of the nile categorize it as an adjustment and so we didn't initially catch the screeners inspectors in a post payment audit several months down the road  it and then found oh i see ok this was an improper coding adjustment actually it was an experimental denial that's why the do original delay from september through april the following year fundamentally no i say that to the court for to answer your question but i still thank you scott the way are here on behalf of tooling systems and with me is my partner jim brock so it's our position that the court here should affirm the district court's determination that the explanation of benefits you'll be forms of  supposed to indicate that the claim has been denied and denied such a way that the parties understand what's going on here one things that's left out here is that spectrum is taking an assignment for mr grue scott and agreed to pursue any payment of claims on behalf of denial you have to reference the plan provision and description the review procedures on the form that was mailed to mr griscom was mailed to spectrum was electronically sent to spectrum it says hi it looks like this service medicine or supply appears to be experimental investigation as defined by the plan at that point set forth the procedures if you can write a letter saying hey i need more information to understand what's going on ok enough that he did do that i gather they did that after the appeal time had run he waited seven more actually spectrum waited seven months to do that but they wanted appealing they were simply asking for more light at that point the appeal period had run so they're asking for information when it's already been denied for over six months they waited for seven months to follow requests for information at that point the close ministry said you're late they didn't follow appeal for another for a total of thirteen months and the reason why is as it is it was during the hearing that came out in october is the best that we don't read our mail we didn't the administrative process and it got reviewed they got died here's here's my concern on the the original letter that told him that it was not covered said that this appears appears to be experimental or investigational as defined by applying direct the plan has what cit it's categories in which that would be determined and no specificity in this at all so how would someone may i want a klein if you have six divergent what is being experimental or investigational and the e o be fails to tell you what portion of the plan is being violated a couple things one is the six circuit has ruled that the substantial compliance to us and there's other caseload says they don't have to give the reason behind the reasoning  individual has no idea what of those categories in the plan has been violated so it's how would that that's been their compliance that point you're allowed to request additional information as set forth in the will be in detail you can ask for additional information you can ask for scientific information on it and i understand that your had to provide the scientific exacts clear enough but you have to provide the first reason and i'm struggling with how this would do that to a participant particularly since it's is the explanation is for a service a medicine or a supply and when i looked at the bill it was sa it is pages and pages of information and the plan participants would not even know if it's one of the service categories one of the medicine categories or one of the supply categories mr gross in the hospital get this he looks at the looks at the declaration of the not being the two hundred seventy thousand dollars at that point if you write a letter and stated why i was like why is this not being going to get more information on us and you can do that and that they have so you so your position would be substantial compliance with the first part would be simply a no our plan doesn't cover a plan doesn't cover it because it's of the improper coding by a pretty good chunk of change so you've if you're a participant and you're looking at all of those code how would you know which had been denied you know if you had said every code that are you are six twenty four is denied as investigational and it all totaled up that would tell one thing but when you can't even make that comparable analysis i'm struggling with health that lets a plan participant even understand what this is a by when you look at the o b the two hundred seventy three thousand is being completely denied and so the whole the whole can the bulls be denied but not all of the not all that that's not the dollar figure of everything that was coded r six twenty four in this particular entry to the one is you started late he they coded wrong you responded late we responded lighter than they had and continued in the process and so nobody's looking at whether this is actually covered by the plan or not because your position is there outside our six month time find to pay you we responded promptly to when they made the inquiry you know what i'm talking about the initial  chunk of the two hundred seventy two thousand dollars is if it isn't fact experimental and and into investigation that's what i heard and i think he can explain that but i think it was his position i think he was sorry and it looked there was it was improperly coded because of a new procedure but but that device itself is unquestionably not experiment as i understand it the just a core level he indicated that we're not pursuing the proximate seventy three thousand dollars approximately the seventy three thousand dollars three thousand but the remainder is correct being pursued is correct it's my understanding what is your best case for saying that this is substantial compliance again by best case for saying it is in fact we reference that we have we are different we don't pay it we identify that appears to be experimental or investigational as defined by the plan and it went out and that triggers the the right for mr goose kayenta in this case specter who has the assignment to make an inquiry and what case law tells you that a general it appears they at this is excluded is investigation all under the plan opportunity to have clark is concerned about the specificity of the reference to the planning and which in your case doesn't sit well i submit that that's what the that's what the inquiries all about is that if you have a question you can get more specificity and that then they had an opportunity do that again spectrum had the opportunity to do that and they and they did it they did it late well everybody's a little late through this thing and if you're talking a bad more than a quarter million dollars for something that turns out not to be experimental but again just you know aims to be good and good thank you well some sort of the the member of your planned well and also spectrum has a fiduciary duty when they took the assignment to pursue to pursue it and they didn't and i'm not sure why that the reason he had the talent to one hundred eighty days frankly are the policy reasons things change in this case we went  my client these are difficult settings would would recognize that and there are reasons for that timeframes but there are also reasons for determining  may be pending or being investigated when you make those choices so i don't think we can be governed by that but we've got to be governed by is what is substantial compliance i understand that  think that this satisfied the substantial compliance and then back to the the attorney's fees if i could spend a minute on that is i think the court erred in not giving us an opportunity to follow a motion for attorney's fees i believe the factors are in our favor in that case we did win at the k lower level ok and we had a right to rely upon that in making our initial determination whether or not it was covered by the plan i think that's only only fair in terms of whether they got the ability to pay clearly they've got the ability to pay frankly didn't miss two hundred thousand dollars for almost a year piers and frankly it's going to encourage companies like spectrum hospitals like spectrum if you get an assignment to be due diligence and pursue it again i think going back to the e o p i think it does substantially comply the idea is to put folks on notice that your claims are not being paid and you get a process to get more information if you want and spectrums in the business of doing that spectrum does this all the time and mr driscoll probably had the right right to rely upon that they're not going to sue riscoe because if he does he's going to claim back against him for negligence for not handling the claim appropriately so we did everything that was appropriate we relied upon that spectrum gave us it was their coding issue we denied it based upon we told them it wasn't getting you if you get a code it's completely off the wall are you entitled to rely on it why is it off the wall well i'm not is i'm just asking you the extent of your argument is you think there's there is nothing that the fund has to do to determine pursuant to its own provisions that coding where that coding fits within it yes actually happened to me several times for what it's worth so yeah yeah not a lot of parties that need to be looking at their perceived yourself here that's concerning to i and i understand your argument can understand we thank you so mean we're pushing for the question thank you very much for your time  begin and end with what the statute requires that we are guided by what eleven thirty three dictates and that means that they have to give the specific reasons the clock starts when they do they didn't hear this court has been very clear in ven clark clark a number of cases holding that you need more than a single sentence of a denial than what they provided here that is on them that as you rightly pointed out they're not entitled to rely on a coach granted that spectrum should not have screwed the code up and made it more difficult but they're not entitle no other plan to rely on the plan is very clear about what their intent of the reliance and they can walk through their exclusion and determine whether or not a plot applies they didn't do that here that's on them