good morning in may please the court was with hopkins on behalf of the plaintiff appellant alexander age this case i'd like to reserve three minutes for rebuttal please this case is about alexander age the young woman who received psychiatric treatment for her and her ex cia and related mental health disorders in two thousand and eleven and an intermediate partial hospitalization level of care and who requested that her rissa health care plan pay for the street meant and it's also about oxford health insurance which insured and administered her claims under the plan and which refused to pay for this partial hospitalization treatment after only three weeks just as alexander was starting to take the first tentative steps towards recovery there are two issues in this appeal the first is whether the district court properly afforded deference to oxford's denial of plaintiff's claim for coverage as not medically necessary and the second is whether regardless of whether the court should have considered the claim for benefits  novo or under an abuse of discretion standard whether her treatment was medically necessary and should have been covered under the plan the answer to the first question is that the district court should have reviewed the claim to no go and not under a deferential standard deferential abuse of discretion standard the supreme court's decision in firestone long ago held that it denial of receipt benefits is to be reviewed unless there is an express grant in the plan language of discretion under the terms of the plan and that exercise of discretion is and that discretion is exercised so i understand your argument currently if i'm wrong you agree that the plan that there's discretion in the language of the plan and then the question is whether that discretion is still there after there's been an external review that's that's correct that the plan clearly and expressively granted sole discretion fact to oxford to to to make medical necessity just terminations under the plan but the plan also provided for an external review mechanism and alexander invoked that discretion why why isn't the external review the planet ministry or decides to seek outside review and to me that's just an exercise of got to decide whether to invoke that mechanism or not and and she was the one who who did so so it wasn't an exercise of discretion on the part of oxford it was it was her choice to do so  the plan language also says and this this is i think really important that in a straighter the administrator in this case decide to decide to be bound by the outcome of the external review well the plan language required that the external review provided that the external review was binding now this court as you know there was already an appeal in this case and this court during that appeal held that the under new york law and also under risk that that that determination by the external reviewer wasn't binding on alexandra as the planned participant as the insured she was still able to bring a federal case challenging that determination but the court didn't address whether it's whether the the determination was still binding on oxford and if one looks at the new york law and the new york decisions that this court cited in its prior decision it's clear that that the external review provision is binding on the insurance company just not external review because we have some cases that oxford cites and its birth including an eleventh circuit opinion and for lecky vs greater georgia life insurance company which comes to the conclusion that independent binding review did not eliminate the discretion under the under that plans to suppress terms we don't have a decision directly on point but i think if you look at the eleven circuits decision and moon which says that discretion has to be expressly granted if you look at the decision in gilbertson from the tenth circuit which says that and which actually is in line with a lot of other decisions which says that the they administrator actually has to exercise or the the entity making that determination or granted the discretion actually has to exercise  if you combine that i think with with the firestone decision itself and perhaps the rush prudential decision that says that there is nothing in a rest of their that supports a lenient standard that that is in fact not the background standard the background standard is de novo i think you have to come to the decision come to the conclusion that that whereas here in all of those cases that you cited is it true or is it not true that the court came to the conclusion that the plan administrator violated the plan procedures and making it benefits determination in reviewer here was not granted discretion and you only get to deferential review for a decisions such as a medical necessity decision if the entity making the decision was granted expressly granted discretion under the terms of the plan that's not what happened here and i think you know saying that you go to a de novo standard or a review is not in any way unfair and that's because really for two reasons default and second presumably oxford and not alexander wrote the play on language at issue here both the plan language providing for external review and the plan language granting discretionary authority only to oxford it solely to oxford to make medical necessity to terminations i ask you how different these two forms of treatment actually were the intensive outpatient partial hospitalization so i wonder how close they are to each other or your perspective how far apart well you they're there i mean obviously they're different in terms of intensity so this was quite a few more hours a week of treatment  intensive outpatient therapy she was i believe alexander is getting something like ten to twelve hours of treatment a day at least five days a week whereas  intensive outpatient treatment is generally i mean it can vary but it's generally a few days a week and only several hours a day so it's you know it is quite a bit less intense and man y fewer hours and you know much less of a structured setting i would if one anxiety is the risk to the individual i mean meeting would say three or four times a week for several hours a day likely do keep that in mind and obvious you can change the medical necessity point at any time right in other words you're doing the intensive outpatient and you decide well the risks of grown here and people are going to pay attention to that right but that you know you don't have to fail first in order to get an appropriate level it wasn't suggest retail and say that  well i guess i guess what i'm suggesting is you know it's a lot easier to monitor someone if you're seeing them every single day for you know ten to twelve hours than if you're saying i'm a few times a week and you know it's something else i would stress is that although the district court when he looked at of what the reviewing doctors for oxford said about her you know beginning to be able to eat all or most of her meals the point is she was being supervised at every single meal and was still struggling according to her own doctors and and the contemporaneous medical records was still really struggling to eat  finish every single meal she was only on a six thousand nine hundred calorie diet which is not even really quite a maintenance diet but she was struggling to to eat that many calories and you know if you're talking about intensive outpatient treatment she wouldn't be supervised at every single meal and that was really important at this point what was also important was that you know she had major depression which was not stabilized according to her doctors and she was record show what happened after oxford oxford's decision yes in fact well i'm not sure it shows everything that happened but she finished her  treatment she went for many more months and you know she is recovered she's doing really well after after many years of sort of cycling through lower level outpatient treatment and then being hospitalized she finished this course of treatment and has gone on with her life and done quite well she's now working as a therapist helping other people and really it's been quite remarkably successful because i think she finally got the treatment that she needed but she was only able to do this because her father was able to afford to pay for the treatment for her and you know she really wanted me to stress and i think the record supports this that you know there's a very real likelihood she would have died if she hadn't gotten this treatment she believes that and i think her treating physicians believe that and she thinks that you know many other people wouldn't have the kind of family support that she was able to have to get the stream it covered so it's about money it's about getting her father reimbursed for the you know money he had to expend for her treatment but it's also about the treatment itself which many people wouldn't have had access to when she chose and was able to pay out of pocket for a lot of sit down because i see my time's up  good morning in may please the court my name is michael bernstein of robinson cohen we represent the a pelleas in this case i have with me janine jacobson as well your honour's the district court opinion in this case should be affirm opinion granted summary judgment to the friend in oxford on this case the district court correctly ruled that the proper standard of review in this case is the deferential arbitrary capricious standard because the plan clearly includes a grant of discretionary authority to oxford in fact this court in a previous decision noted that the plan included that language and noted that it granted sufficiently grant the discretionary authority to oxford the district also the difficult also correctly applied the six the court six court test to determine that oxers decision to deny the plaintiff appellants claim for continuing treatment at the partial hospitalization level of care let me go back to the yes the previous decision from this court as i read that opinion the panel decided that the external reviewers conclusion of no medical necessity did not preclude the member from filing suit right yes when holding and also that the external were reviewers determination wasn't binding for risk that preemption as i read that case well neither of these holdings addresses whether the external review process tripped oxford of discretion to determine eligibility for benefits originally was that the district court found that because of the external review or in effect rendered the final administrative decision that the doctor didn't have discretionary authority in the in the decision he reviewed the novo because it was the external reviewers decision and according to the plan in new york state law that decision was binding so that was the decision that was appealed in the first appearance before this court and what this court did is it reversed that holding and said based upon new york state law interpret ing the new york insurance statute for external review that the word binding and make no mistake the statute says that the external external review decision binding on both the plan and the plan participants and plan echoes verbatim that language the court this court held that according to new york state interpretation of that law binding just means it's the end of the administrative process and so the court added in a footnote this court did that the the sort of a stop will effect i think that was the language that was used by the court is no longer effective because the court has ruled that binding doesn't mean that either party is bound  fact that the court is talking about in let in subsequent litigation right yes ok yes i think that was that was when it came up with the court the district court having held that the external review decision is binding and it came back to the district court saying it's up to you district court to decide the issue of the proper standard of review and i think this question is really interesting at least as far as the plaintiff's arguments go because don't forget when we were in front of this court before plaintiff argued very strongly that the external review decision and the extent and that decision by the way up held the adverse benefit determination of oxford and after three clinicians that oxford had like ways come to the same conclusion and so plaintiff appellant argued in front of this court unsuccessfully that that external review determination and the record upon which it was based should not be part of the administrative record before this court and this court said no that that that's not the law in any circuit that's considered this and it shouldn't be the lawyer here and the court ruled over plaintiff's objection plater else objection that the external review and all the records upon which it was based should be part of the record so it's interesting now to hear that the plaintiff wants to argue well you know the external reviewers decision was final that was the that was the entity that made the determination after we had a whole litigation that came up to this court to say that that wasn't the case at all in fact this court held that the plaintiff can't have it both ways they were arguing that the administrative peel is with external appeal record and the external appeal decision should only be part of the record if it overturns the adverse benefit determination if it upholds it then it shouldn't be and this court held no you can't have it both ways that's the exact language of the decision but in light of the plan language that you cited to which tracks new york law that says the external reviewers decision is binding how does the administrator still have discretion after that external review well because it still comes back i mean it's just that opinion it's an opinion by the external reviewers who uphold the decision so there's not but holding according to law in the language of the plan but it but not according to this court's ruling i disagree frankly with the plaintiff appellants argument that this court only held that the decision is not binding on the claimant but somehow still binding on the defendant you know what's sauce for the goose is sauce for the gander we had this argument we had a determination by this court saying that according to new york law appellate decisions interpretating the new york law this kind of decision is not binding in the sense that it's binding on both sides means at the end of the administrative process so if it's not the end of the administrative process for the know pinion inrush credential all the way back in two thousand and two which is the only supreme court case dealing with external review don't forget that was a close decision was five four and the dissenters held consistent with the decision of the fifth circuit in corporate process and taking the decision making out of the hands of the claim to do sherry's so the dissenters in russia prevention found that you know because it did that it was preempted by iris and that's again that's what the fifth circuit held and that was the circuit senters and the fifth circuit that somehow this after all is a quasi or partial decision after all and it was removed then from the claim administrator who has vested discretion to make the ultimate determination well you know that not even what the supreme court said in russia credential in russia potential the supreme court like in external review to like asking for a second opinion you know so this was another opinion and it was another opinion in the record shows that after it was rendered it came back to  acknowledged it and because there was not thing to do any at that point they did here to the original determination they let's not forget they made that that original evers benefit determination and then they upheld it throughout the administrative appeals process dr a while you denied it initially after the three weeks were proved extreme following all this i'm just worried i'm not i just want to make sure i understand your answers to judge prior's question could oxford reject external review yes or now you're adequate i suppose it could but i don't think it would in practice now but what if the external review said that the that the services were medically necessary yeah at oxford then deny benefits no i think that they would have to approve it there isn't just as just so we're on the same pick because it's binding that's where the binding comes in but your view is it is then it is or it isn't binding on the courts that's the thing i don't think it's binding on the courts and i don't think it's because it's binding only because but why i'm just  trying to simplify not you keep trying to make it more complicated at least according to my fragile mind but if it's binding on oxford the external review but after that you then go to the courts and ever standard review debate right well let's let's let's be clear let me be clear and try to simplify this if binding doesn't mean binding on the parties which is what the statute and the plan says if we determine that according to new york state precedent it's the end of the administrative process than that's what that meaning of binding means for both sides not just for the claimant now in practice the the ox would have to that theory would not let oxford reject so if the external review said it is medically necessary to keep the individual in partial hospitalization you couldn't reject that just so on the same page right yes ok and th and don't now now that we decide that that's binding on the administrative processes to both parties we go to court what does that suggest as to standard of review i think that the standard review remains as well as it's described in the plan here there's a grant of discretion and ultimately it's oxford that makes the determination to pay for two things i did to delegate its discretion to somebody else it's bound by it but it's still discretionary and that's why you think it's to still be this discretionary view in the courts and i'm right in the summarizing i'm not trying to set you up i'm just trying to get it let me just correct that a little bit oxer didn't delegate the discretion to the external review or the state law mandates that external be review be available the plan incorporates pretty much forbade them the state law in line with the ruling in rush prevention saying that those state laws aren't preempted so state law delegate this discretion to external review c c that's where i disagree i don't think that the state law delegates discretion to the external review or the state law allows the claimant to go to an objective clinician who specializes in the same area of medicine where the dispute arose and get an opinion from that reviewer as to whether or not the medical necessity decision should be upheld and here that medical decisively determination was upheld so you know that's an opinion on appeal that's not a term that's not a coverage determination in the end oxford is the insurance company in oxford is making the non coverage determination as it did at every step along the way during the administrative review process and me as you know the question just so i can understand so is the ex turnover view or applying the the standard on the under the plan for medical necessity is the review interpreting the plan in that sense well i mean he certainly had it and he certainly reviewed it i think he you know i think that that there's a general medical necessity rule that's put in front of the the peer reviewers to do the external review by the external review agent that's consistent with it not not that different at all from the plans medical necessity determination and so you know the district court actually went through that because that was one of the challenges that were raised below and here and in the district were correctly found that there was no meaningful distinction between the medical necessity standard that was used here in the end of the day they all of these clinicians reviewed the records i mean let's make no mistake there is no question that this was a patient that still needed treatment and nobody was saying that once the nihil of benefits was entered that she was just sort of on her own there were clear indications in the record and i think that they were repeated by the external review agent that the the patient should continue treatment at the the intensive outpatient level of care which is an intensive treatment to your point  earlier judge sutton so you know it wasn't like she was just being left her own devices the question was whether or not this level of care was medically necessary under the guidelines that i take it had hypothetically the family accepted the intensive outpatient approach presumably because that's all they could afford their doing that presumably that was an irreversible right i mean three weeks later the doctors could have said we've got to go back to partial hospitalization  i'm right that that could have had it's absolutely true in france of so let me just ask about ask a different question what seems unfair about this or or maybe it's not the right word but just a little problematic from my perspective this is all about the money retrospectively we have no idea what would have happened had you know they accepted that right so now they're kind of stuck with all or nothing at all which seems i think a little unfair to them well you know i just  knowledge this was a serious problem the record shows it's a serious problem and doesn't strike me as implausible that had they taken this route of intensive outpatient a couple weeks later she might have needed some more hospitalization and that that is a pattern in this type of problem that happens is until happily it works out god willing or not i mean eventually that wasn't her hers her situation as you understand my point that yes when you that seems a little unfair i don't think it's unfair i think that these are the rules of the plan and that you know those are the rules for coverage and there laid out very clearly in the guidelines for me one last point i'm almost out of time your honor if i may i think that setting up a regime where depending on whether or not a participant elects to go for an external review is going to decide what the standard review is you know the words right out of the plan the the deferential review right out of the plan the grant of discretion and that's that's a dangerous precedent to set because you're basically saying is that depending if one group of patients doesn't seek external review then there's no question that's a decision that's got to be reviewed under the arbitrary capricious standard but if they do then it's not i mean so we are is the uniformity in that we're is the predictability and that we're the efficiency in that when when the supreme court talked about the  just i'm sure i'm missing something so i want to correct makes i'm sure you'll be able to i've never seen i've seen lots of these arista cases i've never seen a sex journal review component to it so i've always seen and when i see those cases there's this anxiety about arbitron caprices review because the people in oxford position have an incentive to say no medical necessity right that's the problem of just stick with me i'm asking a different question so there's this whole anxiety about lining up the decision maker with there may have the same financial interest in saying no medical necessity well i would have thought would have been the way one would argue this case from your perspective is the beauty of external review is we we d link this and there should be more discretion when you have external review because you you get out from under this problem that the insurance companies and santa advised to only allow lower coverage but i it's not exactly the way you've been presenting this case i feel like i must be missing something and this is really a question for both sides to be clear we were talking about whether or not the standard of review is altered by the external review not whether as a matter of substance and materiality we take away the whole concern about financial conflict of interest and there also by the way is nothing in the record to suggest that i o p would have been less expensive than p h p and that there was any financial issue at all with respect to that but taking your point i agree that the fact that there was an external review done here by somebody who wasn't attached at all to oxford is a strong part of our case on the merits we're talking about  yes i'm first i'd like to to just point out that i think it's reasonably clear if not completely clear that when the when this court had had this case previously it didn't decide whether it didn't address whether the decision of the external review or was binding on oxford it remained ended for consideration of the standard of review  was addressing a very different issue which was whether whether that decision was was binding on on alexandra and binding on this court and said that it wasn't and it pointed and  referred to new york state law and you know was was really convinced that the that that was the place to look for the answer if one looks at new york state law here it's clear that the answer is that that the that the external review is on ending on oxford and not binding as this car previously held on the insured and that's that's not having it both ways it's because this is a protective regime both in new york state law and arrests are protective ridge regimes who's the primary goal of which is to protect the plan participants or the insured  here the same person alexandra so it it just stands to reason that you know that that the remedies as the new york law says are cumulative for the insured so you know they're for yes there are multiple indications that this was meant to be binding on oxford and should be binding on oxford not only did the plan documents say that not only does the new york law require it but as this court pointed out in its previous decision there was there was an agreement signed by alexandra say saying the same thing saying that she she acknowledged that the that the external  review was binding but that it didn't preclude her from challenging any denial of benefits in court so therefore i think that issue is is was left open by this court but i think the answer to it is abundantly clear and that's that that the decision was binding on oxford was made by an external reviewer that wasn't granted discretion and and therefore that the background to novo standard of review is applicable and yes i do you respond to my point that it seems like there should be more to be more discretionary when they get an outside party well i think that whether it's to of a review or or arbitrary and capricious review or abuse of discretion review doesn't doesn't turn on whether there's a conflict and it never has it turns on what the play whether the plan document grants this kind of discretion and that's really the only issue you look to the plan document you see whether there's a grant of discretion and whether there was an exercise of that discretion here there was a grant of discretion but not to the party that