they please the court counsel this is a case about six years of treatment compressed into twelve days it's case about a young woman who dealt with a long history of sexual abuse eating disorders and suicide attempts and how humana paid for twelve days of partial hospitalization treatment and then denied that it was not medically necessary to pay for any more treatment beyond that time period now because of this court's landmark opinion just about two years weight and credibility and there's a lot of evidence to review there are the medical records from the treating center all of her pride in miami there is the information from katherine's medical review medical providers there's the information from humanise medical record reviews that they paid for and then there's the plan and all that information together is going to lead us to resolving one issue today which is is katherine entitled to benefits under the plan or put another way it medically necessary for her to continue getting partial hospitalization treatment after day twelve first x the total was ninety days there are there were seventy seven dollars days originally not paid for humana mistakenly paid for some of them under a billing issue but essentially the issue was whether or not it was medically necessary for the final seventy seven dollars days you correctly noted that it's as you said a blank slate or to no review standard  both sides filed summary judgment both sides saying they're entitled to judgment as a matter of law i wonder if that's the right procedure for a dyno review like this there's a recent opinion by judge o'connor in the northern district of texas where he says me if it's a noble review he denied so we judge and then just i'm just going to conduct an independent review on my own he didn't have a trial because we're limited to the record the administrative records so he didn't have to go into court and have a trial but he just didn't gauge in a in an independent review and made a motions and use that instead equivalent of a bench trial and then they go through their findings of fact in conclusions of law but regardless to know review means that the the factual conclusions in the legal conclusions are being reviewed by the court but i take a view to mean we look at this from scratch as you said and then we can just say we think the best evidence is on your side or their side and how does that him interact with with a fact dispute that sort of is the governing principle of summary judgment can do that correct your honor there are district courts in the last two years particularly the eastern district versus you know where judgments and made factual decisions and legal conclusions based on this new nova review are circuit so it is entirely based on the evidence available to the fact finder at this point charge job is is sort of forgetting the normal summary judgment just to decide who presents the better evidence correct and i would even put it in a slightly different way coming from the civil side  view i would say is just a greater weight of the evidence and so it doesn't mean who has more medical reviews it's who is more believable what evidence is more credible and in looking at that you have the entire ministry of record and whatever you determine is persuasive in that record and in looking at that record that takes me to my next point which is the court is well aware of katherine's health history so i won't go into that in much detail but i do want to turn to what the court needs to look at in terms of finding whether or not this medical treatment was medically necessary now the st is the plan terms because under arista we always start with the plan and the terms of the plan can be found at the record on appeal dollars there are four terms of the plan that are important to review in terms of medical necessity because medical necessity is defined in the plan and unfortunately neither the magistrate judge nor the district judge actually reviewed the plan terms and analyzed them in terms of medical necessity they went on to other guidelines but i would submit that under review you can look at the plan terms and decide this case simply on that the st factor is is the medical treatment in accordance with national standards of medical practice and we know that it was because humana paid for the st twelve days so there's no question that this particular medical provider followed national standards of medical practice the nd standard or the nd requirement of the plan is that the treatment is appropriate in type frequency sight duration and is considered effective for the patient's condition and that's where we have to look at the patient's condition in two snapshots essentially number one is how did she present on day one and number two is how did she present on day twelve when humana decided that she had somehow improved so that she didn't need to stay for partial hospitalization treatment we know because it's in the record that her behavior got worse despite previous outpatient treatment she tried all kinds of other treatment in the years up to and up to this time period and they didn't work we also know that as of june th of june th two thousand and twelve on day twelve of her stay at this facility she still had urges to restrict  food she still true cried at her meals she still ate a whole all her meals and she still needed staff support to finish all her meals and that's another thing that's important because the parties don't dispute a couple of fundamental facts number one she was medically stable for days days one through twelve number two she was eating all of her meals from days one through twelve number three she was not purging from days one through twelve and number four she had a support system from days one through twelve and so the real question that arises here and is one to ask humana because it's a consistent question is how did catherine improve from day one when treatment was covered to day twelve when she was medically stable eating all her meals not purging and had a support system and the answer comes in what were her urges because it is not enough if her behaviors were being controlled in a structured environment if she left that structured environment her behaviors would have returned think they had a raft of something one thousand two hundred calories a day and that was in day one through twelve we also know that her weight was the same from day one to day twelve so her weight didn't go up or go down didn't fluctuate very much but but what we're getting at is that the just my question another way what would need to be shown for the hospitalization to end in your view i think you'd have to have some kind of evidence from her providers and from her that her urges were under control it's not enough for them to say look we lock the bathroom so you can't go somewhere to vomit it has to be her urges to purge yourself had reduced she had a healthy way of dealing with that kind of behavior she had some kind of way to minimize those urges if those urges were still present at all time keep in mind that partial hospitalization is five days a week eight hours a day and what humana is reviewers said was that she could step down one reviewer said she could step down to two days a week have to face and another reviewer said she could step down to one hour one day a week so there are a fact dispute on this weight issue now there's not your honor because you i think i heard you just say that her weight was unchanged from day one to date well that's correct i thought there was also testimony or evidence that it went from eighty percent on injury to ninety five percent  and the the health food i think that the question becomes about a percentage of healthy body weight and so the one of the requirements of one of the other criteria is at beyond eighty percent of her healthy body weight and then the question in dispute what the target should be to trigger that there be no longer in any need for the authorization but i think you were saying that there was no agreement at all eighty percent to ninety five percent sounds like it's at least in the right direction  not completed well your honor what i'm saying is her weight was the same it one hundred and twenty five pounds on day one it was one hundred and twenty five pounds on day twelve her weight did not change in that time period so were these percentages reflected on optimising something the percentages come from different criteria  one comes from the american psychiatric association guidelines and another comes from the mahela criteria which humanity used so they define as i understand it healthy weight differently and so they are their percentages eight percent if i was on are not apples i don't i don't believe they are your own but but the what we do know is her weight was the same day one through twelve so again we can look at the plan terms number one to determine medical necessity and the four factors there if court wants to go beyond those there are the american psychiatric association guidelines and let me start with that because this was part of the discussion in our area on m versus humana in that case and humana will tell you this here to look why should we use the a guidelines well in the arianne am case they were not part of the administrative record and the fight we had there was to try to get the court to review documents outside the record that's not the case here in the in this case humana at least two of and seventy one it's the best way to look at it is a three page summary flow chart and it's got nine factors to deal with that are specific to eating disorders it's the largest psychiatric association in the world and these guidelines can be used by this court in determining medical necessity they are not like i said nine factors the other courts below did not review these factors or consider them and humana did not either in its analysis of denying claims the only guidelines because they're not listed in the plan they were provided in this case the full set of guidelines and they are for profit guidelines created by a private company we've made the same argument in ari on am and humana were certainly tell you that those guidelines were ultimately approved by the other courts but my argument here is that they because there are other guidelines in this case you do not need to rely on the same criteria if we apply mahela though what it's number three and number four  number four seems like the key is whether there were alternatives that could have also helped her and the court broken quoted that intensive outpatient care could have been that alternative which she went through in two thousand and ten apparently and behaviors is the word i would focus on because the way i believe you man is interpreted that in the reviewer's was saying well if you're not doing it then it's not a behavior it's not dealing with the urges which the record shows were can were ongoing and the urges were only being controlled by the structure of partial hospitalization without that structure she would have returned to these behaviors and unfortunately he man is reviewers didn't really analyze how she would have dealt outside of the structure of partial hospitalization so that final factor which talks about the structure partial hospitalization can provide can reduce these behaviors i would argue doesn't just deal with the actor the behavior itself it also deals with the urges that she was undergoing at that time period normal people don't have those urges and it was necessary for the structure of this kind of program to help reduce those behaviors and that's what the final factor may like actually deals with  changes in her behavior to answer that your honor historically we can see she was ping pong back and forth in her previous days weren't enough in this case we can see that there are certain treatments certain evidence that she underwent talking about her health condition her low blood sugar her taki cardia and other abnormal lab results which were ongoing in june july and even into august so in that seventy seven day portion where she was improving in some can say but she was still needing that structure of partial hospitalization another way to think of it is there were good days and there were bad days and there were times where she was able to start improving and then she would have a relapse and  point though is her behavior improved but her behavior by if you define it as what she's actually doing what we should include in the word behavior the concept of urges as well correct your honor you know if you get a text those two things be seem to be different well one is what you're doing one is what you're feeling well your honor i think the word behavior in this context is a medical term of art and so i don't think behavior deals just with the act itself like i said that the record evidence talks about her  of before the court is whether on june th two thousand and twelve whether her condition was made that level of treatment medically necessary at the oliver pyatt facility in miami florida for this austin area resident three different doctors from three different entities conducted an extensive review all of which is in the record and they all concluded all three psychiatrists as did the  concluded that the mohali plan is consistent with national standards and in fact went into such detail that they compared the language of medical necessity the chart and compared to the mahal a criteria and said that that was a reasonable approach appropriate to use and consistent with national standards the three issues that the appellant raises are one really i think the only issue before the court whether it was medically necessary under this d well your honor as i mentioned that we obviously we disagree in the reasons are as the three reviewers pointed out in their detailed review and conclusions as to why it failed the mohali criteria to actually go down and she was medically stable she was not homo sidle suicidal or hallucinating in any way she was not aggressive or threatening not restricting her they're saying it's only because of her asian status well that you continue to have urges that would then manifest if she's context there's no evidence to support that and there's no there's not even any opinion from her doctor saying that it is required mandatory that she must do this it there's no evidence saying that she could not if she has a lifelong condition that is going to be managed in different settings and has been and certainly there are different or lower standards that could be appropriate once somebody is not an acute critical phase but just in a managed phase and you can always say that they're only doing well because they're there in partial hospitalization or even for residential treatment then there  would be the argument for keeping them in perpetuity there's nothing in the record that specifically supports that contention that she was only restricting and had these behaviors because she was in it in a treatment facility as opposed to receiving supervisory care which could've been accomplished at intensive outpatient therapy as a suggested here you're accepting their contention that as a medical term behavior would include urges  and what's leading them is would certainly think be part of that i mean part of what the reviewers considered it's part of the maalik analysis what role as from a legal standpoint does her determination i think that's i think certainly what she is communicating to her providers at the time and or anything that she was wanting to communicate to the reviewers would  the judgment that she needed to stay there for them till august so i'm curious about from a legal standpoint what does the patient's own judgment about what she aware of i'm not aware of courts discussing that right now i'm not aware of course discussing that in great detail or certainly the cases that we've briefed obviously the st step we look at in and analyzing this is what does the contract provide for and what is medically necessary certainly a patient's opinion might be might have some relevance to determination of medical and ceci but the end of the day that's a physician decision what's medically necessary as opposed to as the contract says desired or requested treatment i mean certainly with these kinds of medical conditions the patients participation and buying and following through is very important and i think that's what the record was reflecting that she was no longer restricting her eating and purging she had a viable support system she didn't have the imminent danger is that we better look for of being homicidal suicidal hallucination showing some level of of of requiring a stepped up level of treatment  and that's i think largely why that the reviewers came to the conclusion that given her then existing condition it was reasonable if she could be treated at a lower level of care such as intensive outpatient which was a very similar situation to the ariana m case this cases while each person is individual on the facts are different and the time periods are different legally those two cases are indistinguishable but one thing i also would note about their contention and bias is this goes to whose decision should a judge whether a rule fifty two dollars a summary judgment proceeding whatever the right procedure is how does the district judge initially and the three of you come to a decision it i very unusual process for how we handle most of our cases we've course move for summary judgment because that's a standard procedure available the judges i think have to look at the record evidence carefully and just make a determination based on what  is most persuasive at this is not a a no evidence standard it is a weighing of the evidence and determining what is appropriate one thing i would note is regard specifically to the issue of bias he said well you should listen to the three reviewers because they're paid for through their contracting with humana as the arianna am opinion the judge rosenthal wrote the case like she says that that's a step that shows a reduction in bias in the context where bias matters which would be abuse of discretion our position is and i think counsel for both katherine paean arianna and argued on bach that that's not relevant and they're correct in that it's only the end of the administrators any conflict the administrator has shown to be relevant there's no deference given to the administrator exactly but in the jewel doctor i mean as you say they will just it's just essentially looking at the record cold and and deciding who has the better case you can always in a trial or anything else consider a witness 's bias and that's just that's always the rule so so maybe your doctors have some bias because they want to keep me the business maybe the doctors they're relying on the treating physicians have biased because the supreme court said treating physicians can make more money if the argued and the reason i'm raise it is because they they raised it in their brief to this court as one of the points of error in contention and we think that because the treating physician rule doesn't apply it should be no weight given of those issues really the answer is is it right or wrong she was medically stable which is super critical she was eating one hundred percent of her meals not restricting not purging and that's leads to the conclusion based on the facts presented by the record of the treatment at all pyatt that she could be treated little at a lower standard of care at a lower intensity of care such as intensive outpatient and by the way these are there's a whole range of potential options there's of course like suicide watch at one extreme no treatment at all at another extreme and there's permanent resident hospitalization there's temporary and then we're talking about the difference between intensive outpatient and partial hospitalization so they're sort of in the middle similarly the next reviewer for an advanced medical review how many hours a day was this hospitalization i'm not sure i know that from the records as she was she was living she was sleeping somewhere else or living somewhere else and going in for a certain number of hours a day that's why it's called partial that i'm not a liz asian that's my understanding rather than that she was she'd gone to florida was staying somewhere and then was going for the treatment for a i don't i don't have a direct answer for you as to clearly her weight went up during the stay well what they're saying it didn't change at all and i have no record site at this point to contradict  that and so if i do you know we'll send a supplement to the panel but i didn't at this point i'm not in a position to contradict that statement based on the record i will say though that it's the issue isn't just her weight it's the intake and it's the purging and so it's not just that the flat weight at any point in time it's even when she was admitted she wanted to met the mahela three criteria right away was already wasn't below that amount i think even it when she was admitted it's right i mean it well i think it's not clear from the preauthorization review that the weight issue was was a factor in making the determination it could have been that other aspects were the reason that it was pre authorized at the end of the day the question is that you know sort of what doctors would do or what what a person may choose as their own but rather what's covered under the plan and so applying them holic criteria it was appropriate for the preservation for twelve days when it was reviewed again it was no longer necessary at that level of care which is similar to the ari on him situation you know some period of time and then after that the the up with the claim request the preauthorization did not meet that level of continued treatment i don't think the record talks about it specifically why she chose to stay there beyond what she why she chose to stay beyond the period that was pre authorized i think the record as summarized by the reviewers does discuss her progress during that time or her conditions for that for that window of time the what happened after the fact is to some extent  not really relevant as to the target nation of whether it was medically necessary at the time or not  when doctors treating physicians talk to the patient that they're going to incorporate what the patients telling them as part of their review process but she was psychological type as opposed to physical ailments and judge that's one of the primary ways that doctors do communicate with their patients about how their wellbeing is progressing and that's what those entries in the record showing the improvement supported the termination plan the other thing i would note on this record comparing daryn and i think is also of interest is the notion of the bias issue with regards to one of the reviewers dr a sent us was not only reviewer in this case but you can see from the opinion the published opinion that she was a reviewer in the arianna m case in that case i think this is notable she made a determination that the initial determination that continued treatment was not medically necessary she reversed that as an appeal and additional treatment continue as part of that plan in this case she was the reviewer of the appeal and concluded that it wasn't medically necessary again and so this notion that the reviewers are always going to be favoring one side of the other is is not well taken particularly in this case where you have the same reviewer who is clearly willing to change  determination of it's inappropriate and in this case found that it was appropriate as did the district court and the magistrate judge so unless the panel has additional questions i would yield the balance of the time i thank you increased and then as i said earlier she was able to eat her meals and pert and not purge only because she was being monitored and there are a number of record citations there in addition i think another question was asked about oh there was another issue i think that your man is a lawyer was discussing just now about whether or not she improved and there are three circuits that have weighed in on this idea of improvement the rd circuit the th circuit in the  opinion out of the th circuit and each of them talk about the idea that you would expect it is not in of itself outcome determinative but you would expect if something is being if claims being denied at some point later you would expect there to been some improvement we haven't found any improvement in the record here in fact we found is some of the citations i was just pointing out her anxiety and stress were increasing so without some proof of improvement there is no rational justification for why the claim suddenly should have been denied i want to also turn to the issue of the medical record reviewers and the issue is a simple one it's bias and credibility by some credibility is an issue in every case and that doesn't go away and in overall review it's even an issue under the abuse of discretion standard and that's why limited discovery is allowed under the financial conflict of interest of the insurance company and their medical reviewers in this case we we got discovery that found out that these medical reviewers were paid on a flat fee rate and so they were incentivized to do fast reviews but not accurate reviews and that evidence came out and so we're not asking for a treating physician standard we're not automatically saying automatically believe the treating physicians more than anyone else but the facts in this case show that the three physicians each made significant mistakes the st was dr michael he is the record shows never talked to katherine's medical providers we don't have his c v so all we know is he's a psychiatrist we don't know if he's experienced in treating eating disorders but he did his review very quickly without talking to her doctors and we don't know his credentials dr kenneth marx was a nd reviewer we also don't have his credentials we just know that he's a psychiatrist we know what his rate was for the flat fee he was paid and we also know he didn't talk to katherine's doctors either we also know that he got the history of katherine's medical condition wrong because he said she had no history of sexual abuse and that was previously discussed by the ma flat fee for that review she also didn't provide her c v so we don't know what it is and you know there was a discussion you man is a lawyer just made saying look dr a seen us was in the area on am case she approved a couple of days so she's not automatically biased no we're not saying that we're not saying that these doctors are automatically biased we're saying garbage in garbage out and when you are not provided a full picture of what is going on and on day twelve or days one through twelve and you're given limited information and you're given limited money to do a limited review you're going to come out with a limited review it's not going to be as good as the treating physicians so if it's inaccurate if it misses details and if it's incorrect in any way you are entitled to give that less weight it's not an automatic standard but it's a bias and credibility standard under this din over review situation that we're in and finally i would say that there is evidence that katherine did eventually approve so the question is not was it medically necessary on day thirteen or day ninety or day seventy seven she did improve over time like i said there were good days and bad the record citations for that are on page twenty three of our opening brief and  finally i would just say that there are certain things that are not disputed in this case her weight there are other things are not disputed what she said and what her mom said that twelve days was not enough to treat these six years and so under do novo review this court is in the fact finder position to determine that this treatment was medically necessary thank you for your time all right the case was submitted next