good morning we are delighted to have judge richard tolman with us this week visiting from the ninth circuit judge tolman has come all the way across the country from quarterly not idaho to help us decide our cases this week and it's a real pleasure to have judge hall and help us with our cases this week thank you for your southern hospitality and wonderful and we have two cases on the docket this disorder and the record shows that her mental health deteriorated when she transition to a new high school in an attempt to lose weight she began restricting her food intake and then she moved on to more serious things like purging as a way to lose weight  she been diagnosed prior to her admission to the north carolina hospital my understanding is that she had not so she hadn't seen any health care professionals in atlanta not that i'm aware o that the mother then her parents who decided when they discovered on vacation that she was purging to take her to this specialty hospital in north carolina that right that's exactly what happened ok which is a common scenario when in eating disorder cases especially with teenagers they try to hide what they're doing from their parents and then the condition becomes serious so as a result and this is one of the issues that was raised by the district court's opinion and also by you ph in denial one of the issues raised was well why didn't you seek a lower level of treatment first and and the reason is is because teenagers and eating disorder patients generally tend to try to hide their symptoms and then they get increasingly worse since therefore their initial level of treatment needs to be a higher level of treatment so so she goes to a very fast collaborative which is this facility in north carolina that specializes in the treatment eating disorders and obviously it's this treatment that's the subject of this  and while she was there she received intensive treatment that she needed know over the course of about two months she did slowly improve but unfortunately despite her need for that treatment and the efficacy of the treatment the claims administrator in this case you b h only paid ultimately for about four beaches denial decision given the procedural errors that were committed by the b h and the second one is of course the central issue in this case which is whether she knew this treatment in the first place and whether the discord erred in finding that the denial decision was reasonable given the record so what it is that the treatment or the level of care that she was afforded isn't that the central issue whether she needed to be in ohio and first of all in a hospital admission and then i don't understand all the levels but apparently there's partial hospitalization and route patient counseling so isn't that the real issue here does insurance company have to pay for every day of the most expensive level of care under the plan and who makes that determination that's right this is a case about level of care and just to give the court some background the way mental health treatment works is there are several levels of care the highest levels inpatient basically hospitalization and that's the level of care that you get when basically you are you're a danger to yourself you're suicidal or you're you're you're hurting yourself or might harm someone else and then below that is the residential level of care which is  typically where patients are placed when they are no longer need an acute level of care such as hospitalization but we need to be monitored on around the clock basis to make sure that they don't gaging  her behaviors and then the step below that is partial hospitalization which is sort of funny term because it doesn't really involve a hospital but it's that's more like day treatment you go in during the day for several days per week and then the rest of the time you're on your own and then below that are outpatient levels of care so the level of care that was received in this case was the presidential level of care and what the district court what that you b h determined what the district court agreed with was that partial hospitalization which is the it's very effective for her treatment i understand that there are several doctors who said that i think there are there are two central problems with those conclusions though one is that none of these doctors ever and there's certainly there's no treating physician rule interesting cases so this court in the new b h wasn't obliged to defer to what her treating physicians were saying but the fact that she was there for two months and that her primary treating as long as there are a reasonable basis on the record to support that assertion well they're only entitle to rely on them to the extent that those opinions are tethered in some way to the plan definition of medical necessity and in this case there no evidence that there was if you look at the denial letters in this case and this is part of our human for why they were procedural errors in this case if you look at the denial letters in this  case doesn't even mention the planned definition of medical necessity let alone try to apply it to the facts and circumstances of the case and that's a violation of the research regulations the research regulations specifically require benefit administrator to apply the terms of the plan to the claimants medical circumstances when there be a pursuit or zero error that's considered the fourth step of the blankenship analysis the analysis that we set forth in blankenship  i think it's something that the court can consider and this is this is an argument that i know that the defendant has made that procedural errors should only be considered at the end but it's our contention that procedural errors are always relevant in making terminations as to that mr acted in good faith and that's what you see discretion standard of review is it's it's a determination about whether the decision was reasonable and was made in good faith and so if we can successfully demonstrate that the because what they're required to do is when they deny a benefit claim they're required to tell the claimant this is the guideline that we use this is the criteria that we use to deny or claim the idea is that the claimant knows exactly why their claim indication that these doctors feel that partial hospitalization is you can but only in the vaguest most top level sense you can glean from these letters that the reason that her claim is being as is being denied is because the doctors don't feel it's medically necessary but the plan has criteria for determining that and you b h has guidelines determining that and it's not clear that any of those criteria were applied in this case they're not mentioned in the letters and they were they weren't explained to the claimant so you want to pin cite there instead of just a wink to where you can find the guidelines ye if you look at the beach guidelines which unfortunately we can't because they're not in the record they're voluminous they're very long and they contain many categories and subcategories and criteria and you b h was obligated to let the plaintiffs know said she could properly appeal it what exactly it was that she needed to show in order to get her claim paid and instead these denial letters sort of only speak vaguely about you're doing better you're not harming yourself and it's not clear that those are criteria that apply to her so even if the guidelines were in the record you wouldn't be satisfied with that because you would say you need to direct us to the particular part of the guidelines that's right support the latter that's right might correct that the treatment facility had a person that was also assisting in the pain with the coordination of the benefit claim that the letters themselves show carbon copies to the attending physician and vera thomas collaborative so i'm assuming there were somebody on the staff at the hospital that was helping the family yet the insurance coverage issues that's right the appeal in this case was done principally veritas which is typical in these cases because the claim does often not make it position to do it on their own especially in mental health cases or in that case and why why isn't it sufficient for the letter to set forth a summary of the basis on which the claim is being denied send a copy to the hospital that's helping the patient to try and get coverage for the care that's being afforded isn't that sufficient notice of the fact that what we really have here is a dispute between different doctors as to the appropriate level of care and whether or not it was medically necessary well i think a letter was sent to veritas in this case essentially making that contention our argument is that it's not enough just to tell someone your care wasn't medically necessary that's what our doctors think i guess what i'm really asking  kind of an up to sway is it can she show prejudice can the claimant show prejudice given the fact that they were actively being represented by somebody who was more sophisticated at dealing with  guideposts or criterion so instead what you have is two doctors basically talking over each other about high level generalities you seem to be doing ok you're not hurting yourself but it's not clear why any of those facts are relevant because we don't know what the criteria are for i thought the records show that there were actually direct physician to physician communications between the plan a column of valuating doctors and the actual treating physicians who were taking care of or threat to the communications that criteria conveyed in those communications i mean ideally what that what they mr should be doing in these cases is saying we have a plan definition of medical necessity we also  guidelines here are the elements of the and then the second definition here are the elements of our guidelines these are the ones you don't meet and please explain to us why you don't meet these guidelines but if those communications are on go in between expert the doctors as to what treatment ody really needs in informing the plan administrator as to whether they're medically necessary i'm having a hard time understanding why this procedural issue actually caused any harm to the claimant i mean your argument seems to me to be a very technical  one i don't think it's technical because it goes to the heart of how you make a determination as to whether the benefits are payable but we ultimately have to determine that the decision by the administrator was an abuse of discretion that's correct and the mere fact that there was a procedural violation doesn't necessarily lead to the conclusion that the administrator abused its discretion does it or i will argue want to per se rule no i mean the argument that we're not saying that because these procedural  occurred therefore she's entitled to the benefits automatically what i'm saying is that these procedural errors should cause the court to be concerned about the way the claim was handled and if you look about look at the explanations that you b h gave for why the claim was denied they don't appear to be tethered to any kind of rules or criteria either which makes should make the court wonder whether this was actually the correct decision sharman gets up here she's going to tell us that all our case law circuit cases that are factually in app a set and don't mandate reversal for two reasons unlike in the ninth circuit the standard of review in the eleventh circuit for the tile of benefit claims precludes consideration of procedural unfairness when there is no structural conflict of interest and two well procedural unfairness may bear on claims for breach of fiduciary duty under arrest or no such claim was brought in this case but even if even if the ninth circuit cases were the rule in the eleventh circuit wouldn't you still win under a body so a body your honor in a body in the ninth circuit procedural errors and other allegations of unfairness are considered in determining whether the claims decision was reasonable in the first place but is it your position that if if a body applied there would still be no abuse of discretion even if you consider those factors if a body applied which it does not yes that the decision was reasonable but in the eleventh circuit you don't get to the sixth up and then blankenship which is was there procedural unfairness when there's a structural conflict of interest the only conflict of interest that is relevant that gets the court  dept is when the claims administrator is the same entity which pays benefits and in this case you b h was not the payer of benefits e p h s not even a party in this in this action the issues raised by in this appeal are contrary to the court's mandate in blankenship the truncated review is contrary to the express requirement that this court again not with determining whether the decision was reasonable or an abuse of discretion but whether it was did novo carette if the court agrees with the decision made by the claims administrator it doesn't reach steps two thr it stops right there and affirms the underlying decision and that's because in the district court a review of a claims administrators decision is more like an appeal from a to ministry of agency it's based on what is in the record and it's based on what is in the play and there was some discussion that in the record the guidelines were not contained well in the plan itself the plan itself in the definition of medical necessity refers to generally accepted standards of medical practice later on in the same document cell explains to participants that the claims administrator and in this case you b h is the claims administrator for mental health claims the claims administrator develops and maintains clinical policies that  generally accepted standards of medical practice scientific evidence prevailing medical standards and clinical guidelines supporting its determinations regarding specific services these clinical policies as developed claims administrator and revised from time to time are available to covered persons on this website or by calling the number on your id card and to physicians and other health care professionals on united health care online so contrary to response to his pin side argument could you have provided a citation to what part of the guidelines were in play here rather than simply a link to the website and  materials that are found there could they have yes i mean i assume that your client had specific provisions that they consulted what those provisions are it may be better practice to do that but that consideration would be relevant your honor only to the extent that bodhi had alleged that you  claim that a participant or beneficiary can make for either the definition of his rights under the plan or for benefits it's basically a benefits profession and then there are two other provisions interests of civil enforcement scheme five o two a under five a two or under five a to a three the plaintiff can seek equitable relief under a two they seek equitable relief on behalf of the plan and under age three they seek equitable lic relief individually so when you're talking about benefits under a one be the eleventh circuit in blankenship and even going back beyond it before that before glenn to white and to gilmore into all the cases that proceed at blankenship the paper see general error that is alleged does not heighten the standard of review unless there is a structural conflict and a structural conflict was not existent in this case so the district court for all intents and purposes skipped the first step of the blankenship analysis did not decide whether the provision whether the claims administrator decision was correct and it didn't have a review it basically skipped to the fourth step so that kind of a gut level reaction i i must yes that's some element of at how you apply the six s the review which is the first step it's basically the district court takes look at the administrative record and determines whether the administrator applied the plan provisions correctly and if it agrees with this decision it stops and a firms if it disagrees for that with that decision it may be for reasons that o d s counsel argue with regard to the complexities of mental health illness is th one basically says what's the answer and then you go to steps two through six which is the actual analysis is that right to some extent yes it's a high level review on step one and then on steps two and three the court looks to see if there's discretion in the plan and if there is then what it does is it again looks at the administrative record that was before you b h at the time the decision was made an ass w suspicion at least reasonable and that's not a high standard but but from your perspective if the district court skip step one went through two through six and then concludes that there was no abuse of discretion hours blankenship been violated the court reached the right result but not necessarily it did not want to take the exercise did what good lawyers do it applied to iraq right issue rule analysis conclusion so but blankenship seems to be counterintuitive to what we all learned in law school and basic we all right well blankenship is a  result of several years of confusion in earlier cases starting with h c a in two thousand and one in the heightened arbitrary  same understanding as in firestone the original case in the supreme court if there is no discretion in the play and then the decision is generally right view did novo when there is discretion in the plan the different circuits have interpreted differently the eleventh circuit has interpreted it differently than the ninth circuit and that's what we are  three if there is discretion in the plan and then the court looks to see is the decision reasonable how can the decision be reasonable if none of the four united doctors who initial decision to deny benefits for the entire at that point three day visit so so that they had communication with dr lacy but not with oh they're not with  she was not suicidal that that she was doing well that she was not purging they determined based on their own guidelines that she could step down to a lower level of care which party is obligation is it to make sure that the administrative record is complete it is both parties obligation to the extent that if the administrative record is the defendant has the burden to produce the administrative record but if the administrative record may be in complete then the plaintiff has the obligation to pursue all action to try to get complete and in this case that didn't happen can even though they were referred to in the administrative record in a link was provided to those guidelines but did not attempt to move to compel any additional documents on the defense side from the discovery process don't the regulations require you to provide copies of all documents relevant to the claim yes and you are contending that providing the link was enough that i'm sorry but that  obligation i'm contending that the obligation is not relevant in this appeal because it was only a claim for benefits and that the obligation would be discussed on the six steps of the blankenship analysis only if there was a structural conflict it would have been different had alleged a claim for greece if you do sherry duty under five go to a two or five zero to a three but the eleventh circuit has been very clear as to what the steps are and what is relevant on each step so so tell me if i understand your argument so it sounds like you're saying that they don't even have to provide the hyperlink they just didn't have to provide the documents even though the no explanation as to why they reached that decision a court could find that that decision was not reasonable despite four doctors saying otherwise so if there was no hard work with there be substantial if there was no hyperlink well there may have been substantial compliance and so far as on the plan makes clear that a participant or a doctor can call the number on the id card to find out what those guidelines are also in the denial letters the fact that you b h said that partial hospitalization was available that is a level of care guideline partial hospitalization on the link itself when you go into it and there's a table of contents you could click on the hyperlink for partial hospitalization residential level of care so they did refer to the level of care guideline and to say that technically they didn't put in the denial letter the exact guideline and they didn't specify what page of the plan that's that's correct but substantial compliance in the eleventh circuit requires that the participant have the i'm over my are substantial compliance requires that a participant be afforded a meaningful review and in this case the managed to convince you beach twice oh very briefly just want to make two points the first is that the regulations require what they require regardless of how the decision is ultimately reviewed by courts under the blankets or test or any other test the regulations are very clear about what they require and the second point i wanted to make was that the defendants argument as i understand it is that we're not allowed to present evidence of procedural mistakes because we haven't alleged a conflict of interest and therefore we never get to the final step of the blankenship test for such evidence can be introduced but my understanding of the case law is that we don't have to allege conflict of interest in order to present evidence of procedur violations that the abuse of discretion standard which is that a standard that was used by the district court in this case is an evaluation of whether the decision was made reasonably and in good faith and procedural errors by the defendant call into question whether the decision was reasonable and made good faith i would like to think that when the courts are reviewing benefit decisions they're allowed to take into consideration any relevant evidence as to how that decision was made and that includes procedural mistakes and they're not foreclosed under the blankenship test f