fund manager may it please the court the order of the district court should be reversed and summary judgment entered in favor of the fund because the district court adopted an incorrect and unreasonable interpretation of a provision of the fund summary plan description that requires the fund to pay out of network providers the highest amount that the fund would pay to any in that work provider oppose your  anything that says that a sick person has to go to a work provider in the vicinity no your honor i would the way the fund reads that that provision is to grant t fund the legal way to pick the in that work provider whose rate will be used for determining the maximum rate the fund reads and to give the fund the leeway to decide who the network provider by your construction you could also the fund could also choose the least expensive and network provider as the comparative right the vicomte's any network provider any in network provider the fun could choose the and in their provider that pays the least amount that i and as i understand the record that's not what you do you choose you compare the services to some geographically proximate network provider yes the fund picks the in that work provider by looking at the geographical location but taking into account whether these services are the same as the services provided by language requires an interpretation your honor and the fund is the has the responsibility for interpret ing that language the language says that the real let me read me it says it says thank you your honor in addition to your normal co pay and co insurance you must also pay any difference between the amount that in any network provider charges that excuse me the amount that an out of network provider charges and the maximum amount the plan would have paid to and in network provider for the same service maximum amount that the phone would have paid to  d certainly can be read the way that the fund reads it by reading it to say that that the maximum rate that the fund would pay to read it that way you would also have to read it to say that you can keep the patient from going there well actually i think that the funds the way that the fund approaches this this contract is seems to me quite reasonable that you know where there are two  are you know to do to find some a couple and see there the problem is that language of the contract doesn't allow you to do that and my view and to the extent that it is ambiguous the content that you provide is substantial authority to interpret the plan document that when says and in that work service provider we would submit that that allows the fund to determine the in that work service provider who's rates will be used to pay the out of network service provider what what is a beneficiary what does a beneficiary know therefore when they enter into this we were about what they're going to pay they don't know because the beneficiary doesn't understand which hospital would have the highest in that work rates because those are the the hospital charges and rates are not trad on what they're going to pay and what is the purpose of the summary plan the purpose is to tell them that if you go to an out of network hospital if you choose to go to an out and that our cost bill you're going to be responsible for more you'll have a greater financial obligation it doesn't tell them what that greater financial obligation will be because  patient himself won't know and the funders and necessarily know what the out of that what the in that work ospital charges will be will be for that particular out of network hospital  s it for you to change the contract to do what you want you to yes it can be done your honor and this has never happened before and i'm going to ask opposing coun language seems is clear isn't we answer or you just change your life and make it say what is a perfectly sensible arrangement then you'd have to say what is with this you know is it new york city is it brooklyn is it whatever you have to give something that tells you what the one is but you can do it yes your honor the plan document can be changed but what i would i would say with respect to this is that the the rejection of the funds interpretation which we submit that the language is not it is susceptible to the funds interpretation resulted in the fund incurring substantial likely incurring substantial expenses that would be unexpected because this has not been interpreted the way that the district court interpreted and basically results in a windfall to montefiore your honor so many in network providers do you have no axwell that i would say probably most of the the heart of the general hospitals in new york city would be in magna cares network there are a few mont out of network at one time beth israel st luke's and new york ear would be out of network and hospitals outside of new york city are out of network so some in network providers are all in new york city are they also some  morning your honor may please court i'm john martin on behalf of the montefiore medical center with me is mark sitting right who assisted me on the brief your honors put simply this court should affirm the th well reasoned opinions issued by the two courts below first magistrate judge nat byrne and then district court judge ronnie abrams both agreed that the language in the funds plan is clear as about how far do you go to find the relevant we'll charge for that for all sorts of things montefiore can't do that because they're required by law to charge everybody the same so they can establish one rate for employees of the fund and it inflated as you said they would not be allowed to do that does it does in are you saying that this contract does make the maximum that they get wrote this plan and at this time they knew full well that there was a limited network primarily within the state of new york possibly in new jersey but they they'd chose the bank which was wasn't i mean we talk about it as a contract it's not a contract if this was dictated to to the fund members they wrote it they can change it and that was an excellent point i think you made and that we've been making consistently here that they control this language that they say if they want this to read the way they say it should really take the word maximum out why this was never come up before if that's that's an interesting question which is not there's nothing in the record but as if there is nothing in the record and i'm sure  well as counsel said in answer to one of the previous questions that the virtually every hospital in new york is in the magna care network montefiore used to be in the magna care network all the major hospitals are in the network and the reason the montefiore is no longer in the network is because they had a dispute over nonpayment of funds which is the subject of another case that's been before this court a few times and as a result of that dispute suspended the network privileges of two seventy two so do we with respect to hospitals there it would be very very tough to find an out of network hospital right now in the funds plan maybe some time in the past i don't know if the plan language has changed over time but i know right now on a few hours probably one of very very few out of network hospitals now there are out of network doctors but that's a different thing because a doctor doesn't have the same interest if a doctor gets paid from the fund one hundred dollars less than he's supposed to for an office visit he's not going to bring a claim in federal court under a risk and spend thousands of thousands of dollars to recoup that money so doctors take whatever they can get plus the doctors are then free to say to their patient you have to pay the balance montefiore recognizes in this case we could have sued every single patient for the full balance but these are minimum wage generally low wage workers who don't have assets who ate montefiore has no desire montefiore is there is a community charitable hospital has no desire to destroy these people's lives with that plus there's not a reasonable likelihood they would recover so isn't it often usual in these sorts of arrangements that if you're in in that work provider you might  negotiate to accept a lower amount than you contract it for when there's a dispute arises with with the plan i mean there as i understand it they're saying it's plausible to read this maximum amount to refer to we are we're the beneficiary you get the maximum the contractually agreed upon amount and not a lower amount but there's no evidence not a shred and they had every opportunity to put it in that that that is a real situation they had they'd never provided an example here's a provider we have a negotiated rate for let's say an appendectomy an emergency appendectomy and it's ten thousand dollars but sometimes we only pay them five thousand and so that's what this was about first of all no evidence of that ever happened second of all how if i was if i'm a beneficiary reading this plan that's what i'm supposed to read into it because this is supposed to understand your how it had been officially read this in the i think you have a very good pla language argument but i think they may have a pretty good argument it does i'm not seeing really the sense the economic and the the sense of the arrangement that by which they would have agreed to pay the maximum amount they would have paid any in network provider and you're going to go find the maximum amount even if it's the hong kong hospital it's that calibrates the hospital while that is that the it's a good point the reality of the situation is that they they provider rather than any provider that is if it goes to the maximum amount that is paid it should be ve in that would provide your not any any suggest something very different or  against the person who wrote it absolutely and it's particularly a powerful argument in this case as because as i said this was not a contract this was not a negotiation the beneficiaries didn't agree to this this was health insurance issue and health insurance contracts are construed in favor of the beneficiary not in favor of the pair so that rule is particularly appropriate here but there is no ambiguity here because the word maximum resolves any ambiguity if you take maximum out i grant and judge ramos you made a good point that their approach is one that some other funds use and if they had written their plan correctly they would be free to use that approach there's lots of different ways to cover out of network benefits in fact the affordable care act which is doesn't yet apply to the fund gives gives you a number of choices for emergency services and one of the choices the affordable care act allows is the median of what you would pay in a network provider so that says you go out and list them all and you know you figure out the mathematical median and that's what you pay the fine is it usual to ever  contract for the maximum the in network any in network provider would provide is it usual i think i have to honestly say i haven't read enough of these benefits benefit programs to know what the usual thing is but let me explain why it's reasonable because he and judge calibers you made this point quite well i think if the hospitals willing to pay ten thousand dollars for an appendectomy if you get it at n y u lang gone why isn't reasonable for them to be willing to pay ten thousand dollars if you get the same appendectomy at montefiore why it didn't just makes perfect sense it's the fund is saying look we're not going to reimburse you at whatever montefiore bill because who knows they could bill fifty thousand dollars but we will reimburse you at a rate that we would have reimbursed another hospital and here they clarify it by saying it's the maximum it could be the median they could have said the lowest or they could have said one that we pick but they chose the word maximum and i have to live with  a couple points your honor in terms of the contra profound profer and rule i think that would only apply if you could not discern the intent of the of the plan documents from other from other areas and i think it's clear that the intent of this is to preserve the assets generally for the beneficiaries and by interpret ing at the way the district court interpreted this provision we would be paying the potentially a rate that was that wasn't in that were hospital in hong kong whose whose charges were much greater than what the in that work charge that would be accepted if they were in that work and you are men who are in  as interpreted it to provide that they won't choose a hospital that's in the locality with the same services and pay the maximum rate you can also choose to save i if you will that's right your honor we could we are really talking about a period of time and amounts of money that would dissipate the funds in this case which would be against the purposes of the plan thank you very much thank you beth nicely argue