zero versus anthem blue cross insurance certainly appreciate that thank you on july second two thousand and thirteen a so was admitted to new haven residential treatment center that time she was suffering from a variety of mental illnesses she had been diagnosed with a variety of diagnoses she was clearly psychotic in the opinion of dr wood all her psychiatrist and her therapist in the time frame immediately before she was admitted to new haven that they had they were concerned about s so they were concerned that she would commit suicide and they were had recommended residential treatment for quite a while tracing the tape we're reluctant to do that because it would mean sending us all away from home she was a young woman they were very worried physicians felt was necessary in order for her to not be in a residential treatment setting council let me i've got a question was s so treated on an outpatient basis prior to her mention to new haven and and then there was a period of time where there was outpatient treatment after that but before july and i still continued to have these variety of problems eating disorders inching perching with rot withholding from eating completely she was self self harming she's cutting it's a harrowing record quite honestly reid and the family i actually talked with are to last night about how our so is doing because i wanted to described by the national association of insurance commissioners as inequitable deceptive and misleading to consumers this court should cut no slack to anthem in allowing them to obtain a deferential standard of review unless and until the language in that document that they're providing to people is clear in providing notice that the review will be under deferential standard room we have the plan i don't believe had i don't know that he's somewhere including those of you to get the documents together so we really know what's going on i don't think remand would be helpful i think that you should take the language of the documents in front of you and chairman from those documents and the language in those documents what the standard of review is and that's what we've asked the court to do we our position is that the language in that s p d the summary plan description strictly speaking based on the maps case this is the two thousand two case and mcgraw before that was in one nine hundred ninety eight the tenth circuit said you know this language is borderline we're going to let it go for now but as i noted in the briefing in footnote three of nantes this based on the language i mean documents that it's insufficient i think even if you did that the judge briscoe in the context of the language on that we agree is before the court if you tighten it up that's going to be a movement in the direction that we're asking the court to make the seventh circuit people are entitled to know how solid their entitlement is for these benefits because it's ok you just tell us what you want the language to say well i think the language that you find in the firestorm cases sufficient some reserve determines what's medically necessary well and i'm always determining that's the function of an insurance companies to make a decision about whether something's medically necessary or not that gives no notice to the family that they're reserving discretionary authority in a preparing for this that and i had a question is there any other governing plan documents or not in your answer today the court was that they told you you had what they have but then you're arguing that there may be another plan out there so well for instance looking at the names of the parties involved here  we got the case is that that address based on the documents conflicts of interest you know and this goes to way that we review our standard review i'm a little fre plex in trying to ride that on the basis of what you say we have as to a decision that would be justice to both sides in regards to what's being asked here  well i understand your honor and it's a hard situation judge of that because i think what we have is a plan document that says something quite definitive namely hey there's something else out there more that more expresses an explicit and binding when in fact from what happened tells us that document that the document first doesn't exist well i know it's it's a matter of trial practice and everything but it just seems logical to me that you would have at least f now the second point i think that is critical in the case is that the evidence in the record shows that the f m denial was neither wrecked nor reasonable we've outlined the information the record is quite clear in telling you what the condition of esso was what the recommendations and prescriptions of care from her treating physician dr woodall and her therapist his mask and was and we believe that under these circumstances it was simply arbitrary caprices that it was certainly incorrect if and what we have here is information that was provided by the individuals dr woodall and ms mascon who have the greatest knowledge of what in what was going on in s o's life i think that it's appropriate and we've talked about this in the briefing for this court to recognize it suggested and razzak was appropriate that the treating physician in these kinds of mental and emotional behavioral illness cases they're in the best position to make a diagnosis to come to conclusions to provide findings the record reviewer's now greg the supreme court in black and decker versus nord is very clear in saying look there's no treating physician rule and we don't argue otherwise but we do think that when you're talking about undisputed information the record it's critical in this in instance that she was not she was not suicidal when they issued their opinion those doctors that looked at her after the claim and then she had not harm herself read recently not a danger to herself or others those kinds of findings and determination seem to be undisputed no i don't well i don't agree with i think that when you look at dr woodall in his mask they say that she was at risk and she criteria a lack of suicidal ideation with a plan or chance or lack of active i act of suicidal behavior that's the wrong criteria you simply don't find that language in the residential treatment criteria the residential treatment criteria is much less definitive in terms of saying you've got to be an actively suicidal individual talks about manifesting symptoms and behavior which represent a deterioration from their usual status and include either self in or risk taking behavior that risk serious harm and cannot be managed words have meaning this is a very critical continuum that we're dealing with in terms of the severity of care and what i see over and over again is insurers wanting to impose on residential treatment acute inpatient criteria such as are you actively homicidal are you actively suicidal that is inappropriate and we have in our record i'm  two to zero six is the criteria that they should have used the residential treatment center criteria and the criteria i don't know that the record contains a copy of the criteria that was used for acute acute  those care was medically necessary but the evidence strongly supports anthem's denial of benefits in this case there are multiple ways to treat mental behavioral health and residential treatment centers one of those it was the decision of the appellant the parents of this girl and their treating physicians in california to have her come to utah and receive care for ten m on his discussion with her in the medical now but my question was they did not examine the young lady themselves no they did not apologise for for informed of this  decision seven days after she was there then three days later they were also informed that another psychiatry doctor buffel she also reviewed the case and she also found that this was not medically necessary under the address the point when we were gathering all the papers that are part of the administrative record there is some language in this combined evidence of disclosure evidence a covered and disclosure form that would lead you to think that there's a separate plan it is a little sloppy it said that this is a summary of the important terms of your health plan even though it's a summary it's it's a huge document it would need to make you think that there is a separate plan but i've confirmed with them that this is the plan and not only have i confirmed that with sam's the the group benefit agreement that's between the employer here and you know there's a section in there that sa that the combined evidence of coverage and disclosure form is exactly what describes the benefits to which the subscriber in the family are entitled and so you believe do you know the plan a procedure for amending the plan and for identifying the persons who have authority to amend the plan is pacific bases on which payments are made to and from the plan i don't know that's all in the in this alleged plan where does that leave us if we don't have the governing documents well i think this is the analysis that i think your honor should take the question is asked is what is the standard of review so we need to see whether this plan has the discretionary authority and i'm calling it the plan and it does it there are several sections in there that are under the plain meaning of the language in the in this document says we will determine if are medically necessary if it's in several provisions and so well isn't counsel right if that's all you need to do is say we will determine isn't that what insurance companies do we will determine if we will pay your claim ye but it also cultural reflects the understanding of companies that buy the discretionary authority that that entitles them to a  you know in one way and you're not entitled to it but deference and so what i'm concerned about without documents that we've got when it says well we'll do this and we'll do that yes it complies with the language to give them a standard of review that benefits them rather than where it's a the noble review my not right there and that's what i'm concerned about without me being able to see the documents and you say this is the document there is no other document but yet the names are very similar so that raises  less clear that this is going to be the plan administrator making the decision in the at the language was proved satisfactory to the life in eugene that's the most recent case there was very similar language where i i am i'm not are i'm not suggesting that the language isn't suspicion i'm just going back what i was visiting with you with the folks in california about documentation and the word i am with that and what took me back going by surprise and looking at this case and that that's what raises a red flag for me and the red flag may disappear when we get into a search of more more may i address notes and he saw that even after she had been at the new haven facility for a few months that there was still no no evidence of any suicidal ideation she was not exhibiting any aggressive or threatening behavior there are there was even as part of the review showing that there was an outpatient outpatient service that was available within thirty miles of the zip code of her hometown so there was a lot that was evaluated but the bottom line is in order to warrant such a high level of supervision and care there has to be a real showing that it's necessary and records that we have indicated there's only a page is there you are saying the table of contents says there's forty six pages we have eight page i'm not sure which forty six inpatient criteria that appellant have said we confused and i think that indicative of the fact that we didn't rely on it because if we had relied on it would have been in this record but it's not there risk taking behaviors that warrant twenty four hour care the reviewers have found that they should look to see suicidal ideation that's something that they reveal there in every single one of the letters in every single one of the neither of which improved her condition before she was emitted into the new haven so that doesn't jive where you're denying it on one bases and the record at least what i'm looking at indicates that she had been treated for outpatient for for several years with the suicide with everything that you're you're saying but then your initial banal says well residential treatment center that year from from january to march and then there she was in the hospital for a little bit then she had a short period of outpatient services but the extent to how much the doctor would always seen her then or carol mask and we don't know and the reviewers were recommending an intensive outpatient treatment and if you look in the scene page document what that is it's a very intense program where you receiving at least three hours and a day of treatment that's what they were recommending it was something that was much more all encompassing in something that that the reviewers thought would be appropriate for her it was which they believe she had received review and we make that argument again here i think the the problem in this case as a case is that you have parents obviously very concerned for a child if you have a viewing doctor if that would really to have this patient this girl get some help none of them had the residential treatment center criteria before them and all these recommendations are sure something that they see as being the best thing for her but that's a very separate question as to whether she qualifies under the plan i think you  to address your question should risk go i think that if you line up the language of the criteria that you have in front of you and compare it to the language of the denial letters you will find a significant discrepancy between the two in the sense that the language of the criteria does not require the severity of sometimes that the reviewers were talking about and that's core and key i think to our position in the case and finally your honor if i would just say some of these statements are simply conclusions on the part of the emperor if you are such as we believe you can be safely treated in an intensive outpatient basis when you compare that to the specific information provided from dr woodall and ms mascon and compare the knowledge that they