it's an orthopedic surgeon and his practice the reason i'm here is that under the tenants of the the the patients and the professionals that rendered medical services are entitled to receive a civil action by a participant or a beneficiary and that review includes your client  both on behalf of patient am and patient am is also named as a plaintiff and has been since the one they are all our clients they are all the plaintiffs well  furnish medical financial information from the file but when you're talking yourself into a more difficult position then you need to be in to take an assignment it's gonna be an assignment a yielding of all right title and interest a recovery and the document that there doesn't say anything like that on the internet if your fine is merely a representative then it could be could be like an attorney appearing for your client or someone who needs a power of attorney appearing for your client it would be a much heavier lift to say that the doctor and his practice are representatives than they are acid needs so of course if they're only twenty five to twenty seven then why is the then then if that's true how is the patient already anymore if the party has assigned everything to the doctors here because the the promise here today is that by virtue of the fact that the practice filed the appeals and by the fact that they pursued the appeals on behalf of the patient then the that the patient doesn't have no longer has a viable claim and that is what i'm not taking that position that's the position that was rendered by the district court we did put her in the caption she's in the caption because in in under either theory our clients the plaintiffs are entitled to recovery so if you don't have the patient you have the practice if you don't have the practice you have the patient and what the mechanism that's being used to deny her recovery is to say because those appeals were taken by the practice that she no longer has a cause of action and because those appeals were not valid appeals because they weren't in the full in a specific form  i believe at least one time if not both times we get to the actual merits here what is the basis for the claim the the factual basis for the claim that the plan provides payment for the ordinary  plan provides and we don't know what the plan provides because there has been no determination there's been no discovery only a part of the plan was put forward to the district court despite isn't to say please send me a copy of the plan what the doctors and or was pleased justify your charge is which is a completely different thing they didn't there's not a request on behalf of the patien for a particular document there is a kind of justify your decision demand is that the same thing as the step with the statute for permits or requires the plan to respond to from a participant so i understand your question and what it when a provider provider is asking for justification of how to take killer benefits were calculated and determined inherently one must provide the summary plan description and the schedules they are to to what gives the provider a right to any of that or for that matter what even give the participant or right to a kind of account of how something was arrived at as opposed to the very so that the statute is very specific that participant has a right to demand certain documents and what i'm saying is like i agree that it says that they are and they are entitled to request documents and what i'm saying to you is by virtue of the fact that the appeals were filed and tell us how you arrived at the idea that this is the ordinary and customary amount well i don't know that we even reach that at this stage your honor because i know i'm talking about things that have been reached at this stage and i'm asking whether i'm correct that that is what was asked for in the appeal letters and in the complaint what was said to be missing mistaken about that the appeals letter is asked for i says that claims procedures cannot be established that prevent a participant and in this case also their us news from pursuing a claim so it's a technical failure  i don't know what you mean by a lot of back and forth the clients are out of network providers so there they are in the realm of and litigation they are familiar with it they got there was no back were forth there were there were just payments which acknowledged that they which is an acknowledgement that they received the appeals of the it's clear that there is a schedule first of all there's no such thing as we figure out the ordinary and customary payments and there's no such thing as you get what the doctor charges it's clear that there is a schedule and whatever it is and doesn't say what the schedule is for this particular procedure  that there is such a schedule and if you are going to an out of network provider you are the provider should call in advance and find out what we're going to pay and if you don't do that you're at risk that you're go have to pay a lot of money to the provider isn't that not absolutely clear from the s p d excerpts that are in the record there's certainly certainly the s p d provides that there is a schedule we don't know what that schedule says  it hasn't been provided it is it's customary to get that as part of the administrative record the patients to call the insurance company which is the benefit from and find out what the schedule was before these expenses i know i'm not sure that she was your honor you know if someone can show me where that is in the record but i'm not sure that she w this read to you he just read it to you before age eighty if you use a nonparticipating provider you could face high out of pocket cost before you receive services from a nonparticipating provider you should ask the provider to find out the total benefit fundal allan's for the plan service by calling there's a specific number and put it on the record and to notify you of what your out of pocket expenses will be but you just repeat what that a eighty eight honor not that there was mandatory and i would argue that there's if you don't do it then you don't get all your money oh no i don't i don't think that's a proper reading with all due respect your honor i don't think it says that it is at risk it says this is what's go happen if you use a nonparticipating provider you could face out of pocket costs everybody who has insurance knows that if there is a network and you go out of network you better be careful because you might wind up with a big bill from the provider who isn't going to accept whatever amount perhaps the insurance company is going to provide but does that necessarily mean that just because one might expect it that one a provider or a patient needs to accept that and is not entitled to a clear delineation of how that determination would need that would mean you give carte blanche to an insure say that that you will be stuck with the out of pocket without the say if you don't do this you  honor there's plenty of case law in this circuit and other circuits where the determination by the plan provider in this case eleven ninety nine is evaluated on an arbitrary  basis so we have to give credence to that to the fact that this is something that is routinely evaluated in the courts and there is an administrative record made and a determination  made as to whether the plan paid in accordance with the benefit schedule because there is a recommendation with your complaint says your complaint doesn't say  e plan did not pay in accordance with the schedule the complaint it seems to me to be saying that as a substantive matter the point if the doctors are entitled to whatever is ordinary and customary in the community that may or may not be half a million dollars for a procedure that i'm not sure the record even tells us what it was but that seemed to be i thought that's what the complaint was about the complain well you get is the schedule however it was a right there you can't dispute the schedule but we don't have the schedule and i and i would agree with you in this case we get to schedule and we evaluate it and we were provided the schedule even and that would undermine the statute the statute was drafted so that providers and patients could know how these calculations were done and and that's the basis for bringing a lawsuit a claim if you look at if you don't call ahead and you go ahead and get the procedure you get their explanation of benefits the patient does and the doctors get the explanation of payments on that there's a call for every the current procedural technology code every service has a code right they build over to like every possible code we paid by the way every code they build we have a column that says allow them out that's the fees schedule for schedule somewhere that your folks looked at to decide what to put down as the amount that would be paid and that there is a discrepancy somehow between what you listed in the explanation of benefits and suggest that that is factually the case that the amount that is listed on the e o p as what is payable for a particular coded procedure is somehow not in fact what the plan has promised to pay for that particular procedure i don't think there's any basis to to think like i said that you know b has both the schedule fee and the amount we paid so you can compare what you have i think they are arguing and continue to argue that we need to provide the data or the justification for coming up with that schedule in the first place but the data doesn't matter because the plan pays what it pays if they if you looked at what was payable in the community and decided whoa this is a very expensive community we're just not going to pay that there's nothing is there anything in the statute that says you have to pay more than  there's nothing in the there's nothing in the sachet there's nothing in the law that says that we have to use any particular data or rationale to come up with their schedule there's nothing in the law that says whether we do or not we need to didn't provide the codes it is happens all the time entrance the doctor says it's of this and you say oh well if it's that that you get this much money and then there's some negotiation with the doctors that actually i should have called it something a different code that's correct and that's it that's what happened here the back and forth was between our vendor that reviews her medical necessity you know you go to get a surgery you need to get a prior authorization for that you obviously must believe it's a medical what about the money that he didn't get so i think there is a back and forth like i said with our vendor about which codes were payable because everything we did pay every so when you see that we paid additional sums you know i think i have the right in two thousand and twelve two thousand and fourteen right so upon review our vendor said ok these are these codes they didn't appear to be in the original prior authorization we see them now they're appropriate will pay them all and so our last payment on september twenty fourth and twenty fourteen that was the last of the codes we paid all of it what went wrong here the doctor had six hundred thousand dollars worth of services and got fifteen thousand to for the twenty years the doctor studied to know how to do ok i mean there's expertise for sure but we have like we have and we had i think we left i had twenty six participating orthopedic surgeons that would have performed the same thing for what we pay and the patient wouldn't have had one nickel about hanukkah i decide that i'm going to go to professor genius who invented this surgery and is the greatest person in the world to perform this surgery he or she may charge a real lot of money for it because of their skills but that's not what you have agreed to provide you've agreed to provide a certain amount which has been accepted by the  that work people and you advise the participant that if you choose to go to professor dr genius you are at risk that that doctor will charge a lot more than we provide there's no screw up by anybody when the when the game is the emir of wherever comes to get the surgery they'll pay that that's that's correct and for whatever it's worth there was no argument here that they provided a specialized service above and beyond anything in our network in the patient and say can use anyone in your network i had to go here and it's important and the whole plan is designed to encourage our participants to stay in our network because we have i mean we have a lot of leverage and density were a plan and a trust fund for union low wage workers and you know we have there's no reason to go outside the network so if any patient goes out of the network we provide a reimbursed memory and it's in accordance with our with our schedule if he is like i said we paid everything that they billed but then they're turning now to our our rate and they're saying that every pay every code was paid but they are saying the rate that we paid for every code is too low is lording to lower than what he charges lower than what he socks this badly fifteen thousand as compared to five hundred sixty five pounds is the discrepancy between working out of network really that extreme no actually are in network rates are not much more than we pay we pay the doctor fourteen thousand for the surgery we paid the hospital about almost seventy thousand for the hospital stay and then we had another five thousand for other people that worked and so and the the thing is is the plan design it makes sense for us because like i said our participants pay nothing they can go anywhere and they could have gotten this surgery at any of the teaching hospitals in manhattan and not paid anything and if we had it a plan design where we pay exorbitant fees for out of network providers even though they could you know our participants could go somewhere else we'd then we wouldn't be able to provide the comprehensive plan that we do for the low wage workers that you know and we'd have a much much worse benefit scheduled amount and what i'm asking you is what actually is your complaint is your complaint that you believe that that's not the true amount payable for that code number one or is it your belief that there is some obligation on the part of the plan to pay more than the amount that they have chosen to schedule for that benefit what i'm saying is that i believe they are required to pay this schedule now and i'm also saying that that doesn't appear on the explanation of benefits of benefits form says here's how much we pay for this code but everything else is excess and it doesn't say how that's determined why why would it why would they have to say how it's determined they made it up they decided that they're only for a back surgery they're going to pay x thousand dollars what in the plan or what anywhere gives you a reason to believe there is some entitle no end to that calculation being reasonable in some way i'm not saying i don't i'm not using the word reasonable that a reasonable customer is the word you used in your complaint but you're now saying that's not really what you meant you really meant that they have a secret schedule that they have not shared with you and that the amount on the explanation of benefits is in congress and with the actual schedule is that what you're saying what i'm saying is the calculation and the payments need to be accurate and without seeing the schedule and hello schedule and how the calculations are done it is impossible to know whether that payment was accurate or not what basis could a factual basis would someone have a reasonable belief it would be plausible that when you submit a claim to an insured and the insurers says in the explanation of benefits sorry for extraction or life saving cancer surgery or whatever it is here's how much we pay to out of network people that somehow that is a full stood that's a rather striking allegation to make and i don't see anything suggesting that there's any plausibility to that then how does one give meaning to the terminology that says you're entitle to understand and she would have been told what the reimbursement is there's a difference between what they re and persimmon is and how it was calculated so i don't understand what you mean by how it was calculated so there's a code and there's an amount and they say that amount is what we pay for that code so what is the calculation that you're asking about the calculation that i'm talking about is there is financial data that was g the plan may provide not the s p d but the actual text of the plan not that we pay according to a schedule that we determine in proprietary ways that we don't share with you but rather that the plan might say we pay twenty percent or eighty percent or ninety three point six percent of what medicare pays for or more maybe over one hundred percent without hundred twenty percent of what medicare and what basis do you have for thinking that because the reply brief i believe is page three of the reply be brief it says that the fee schedule is based on manhattan medical medicare fee schedules not been provided and there have not been able to manhattan medicare fee schedules so one they're not obligated to do that but we would they're not obligated to do it but once they they say they've done it and they say they historically did that doesn't even say they do it now so we're entitled to see what it was based off of and whether that formula was correctly applied to the calculation of benefits but if they're not obliged to use that formula why you're entitled to see that formula what difference does it make because that  is part of that's part of the administrative record that my clients are entitled to their entitle to see not only what it was based on but how it was calculated and in one can only necessarily review that if one has the c p t codes and the fees schedule and what it was based on and test and test those numbers and we'd like the opportunity to be able to do that and that this is not