the district court's beenz judgment in favor of the provider here d s i should be reversed and rendered for two reasons st the any assignment provision in the c h s plan vars is calling nd to the extent is on a state assignment statute that statute is preempted this court's decision on anti assignment turn oh is on all fours and just does it just as the any assignment provision they are rendered void any purported assignment between the provider and the participant the same is true here and the turnover cannot be distinguished to the extent the district court relied on harris to distinguish the turn o that reliance was misplaced four of harris says that would turn a was a case about coverage but reading the turn on itself it's clear that it's a case  about standing and the issues of coverage were reserved at the in the attorney as for preemption this court's decision in texas life says that a state statute that in essence assigns and i  of participants and beneficiaries and in order for a rd party who is not in privy with the plan to come to federal court to sue sorry right right absolutely and so i do have some questions because although the plan does contain no covered person still have the right language on page fifty four of the plan there is some language at the bottom of page twenty five for example that says you may must produce and deliver to the plan administrator all assignments and other documents as requested and there are several other little places here and there that seem to think that there might be assignments and i'm wondering why are those there if you believe you have this or those best judges from some other document that was cut and pasted or what's with the situation so the same language in material terms was also in turn on your own or if you look at the grey brief on pages nine through tienen the primary sentence that points to to create an ambiguity was also in the one turn to play on and it's speaks in terms of a direct payment and it simply authorizes the plan to pay to make a payment directly to a provider but it does not give that provider standing either administrative or judicially to participate in the administrative realm or to follow suit and in the turn no the court said that the language of the n t assignment was plain there was no ambiguity found whatsoever and  notwithstanding the fact that the plaintiffs turner who was holding the same document that the plaintiff here is holding the court found that it was worth nothing on page three hundred and fifty three dollars worth nothing it did not create administrative or judicial staining they were left to deal with the discretion of the plan administrator just as d s was here never had an assignment when they were pursuing the administrative remedies here all they had was a document that authorized them to receive benefits approved by the plan administrator that's it and that's the same thing that they held in the turner and that's not enough to open the doors of the administrative role in a self funded or receive plan to a rd party with whom the plan has no prove any of contract the preemption argument is the same as it was in texas life because this statute that the district court relied on assigns in a receive cause of action and that was the exact situation in texas life that's one of five rd to eighteen since then the go belly decision has swept away any presumption before we skip to go belly up and we can we deal with louisiana health yes so is it is the best argument on your side that really the texas case predates sienna health and i'm just about preemption now just because the leasing and health in louisiana statute there and the assignment of payment rights sure seems very similar to what's going on in this case so there are three ways to distinguish louisiana health st is that good belly has overtaken a nd the statute in louisiana was simply a direct payment statute whereas the tennessee statute is an assignment statute and rd this is a self funded plan on the nd one though we are your whole point is that piece of paper that the plaintiff is holding in this case is just an assignment of payment rights correct right not just a it's not an assignment at all so you can avoid all of that as to and decide this case purely on that issue alone because it's undisputed that until four days before this lawsuit was filed the side of not having to sign so any assignment statues irrelevant if they didn't have standing to pursue any administrative remedies they have no standing to file suit in federal so you can decide that issue and not get into any of the is to distinguish we in louisiana health is that this is a self funded plan as the concurrence in the louisiana health makes clear the self funded plan cannot be deemed an insurance company for purposes of a state statute the tennessee statute here speaks in terms of insurance companies must allow assignments and they must put those in the plan and so what the district court has done is take a cell phone did plan and deemed it an insurance company for purposes of that which is court decided to mention the other circuit the other circuits that seem to be split and relied on this presumption against preemption to say well we feel like we must go this way because we're following travelers now that the supreme court has made it clear that travelers was a mistake and there's no presumption against preemption that sweeps away that reason and i would ask the court to stay consistent with the th and th circuit decisions in the blue cross case in st francis and find that this state statute is preempted i'm really confused as to what it does and maybe this is the it's not exhausted argument we believe there's a document where where there were signing their benefits in two thousand and twelve the idea that deep they could just be paid directly and so that document says that i request that payment of authorized benefits be paid to today yes exactly and then the nd next not in that's not into print there's really not a problem with and the issue is whether or not certain benefits are authorized or not you know whether they're actually the right amount and whether there is customary in that sort of thing and but it doesn't seem like that was ever litigated out this all the time and then the next senate says the plan will not honor claims for benefits which is what participants under the language of a risk and its claims regulation participants and beneficiaries can file claims in the case that plan had the exact same language there's no there's no tension between direct payment that a plan may authorize and allowing a rd party out of network provider into the administrative room to whom you do shiri obligations and to allow them into federal court right i completely understand that but i guess i'm what i don't see is them there's a big i don't see the argument about whether or not these things are customary and reasonable and should be paid and all of that argument i don't see in our briefing it will in the record i think like it we we've jumped sites for those documents thirty two million fifty three thousand two hundred and three your two examples and the plan administrator says anything in excess of two times medicare is an overcharge and it its discretion and they have not shown that it was arbitrary and capricious to limit their claims to what was authorized thank you thank you sorry for running over appreciate you answering our question apparently he has four minutes it'll be your turn in a minute you'll get your full time may please the court scott clarke for appellant med partners administrative services i'd like to speak  particularly and briefly to a couple issues that concern bed partners in particular that partners administrative services like the name suggests provided administrative services they were hired by c h s to assist exclusive final authority over claims decisions if a party is unhappy with the initial claims decision they can go through two levels of appeals the c h s plan expression provides that the party that provides the initial claims decision in this case that was made partners that party may not be the party that acts on the nd and final appeal if you dig into the procedural history of this case you'll see that when the lawsuit was filed c h s had not yet acted on the nd appeal so the district court abated proceedings and re managed to c h s with instructions for c h s to make a determination on that nd appeal which c h s ultimately did and that's what the district court then evaluated and that's what's before this court that decision by c h s med partners played no role in that decision by c h s on the nd appeal as was supposed to happen under the terms of the c h s plan which says that c h s has sole exclusive and final authority over the claims decision there's a lot of discussion in the briefing this case about this course life care opinion the life care opinion says that a proper defendant is a party that controls the administration of the plan in the life care case the life care court decided that the rd party administrator of the party in the role of med partners in that case in that case the rd party administrator had essentially become the defacto plant administrator and so in that case the rd party administrator could be liable but there's a distinction that's discussed in life here which i think is essential for our case the life care court said that  if the rd party administrator in that case had referred all disputed claims to the plan administrator then the rd car party administrator would not be liable for that decision and that is what happened in our case under the terms of the c h s plan final appeals go to the plan administrator c h s that is what happened in our case c h s made the final decision under this language in life care that means the rd party administrator in our case made partners is not liable for that plan decision there are cases which are discussed in our brief that follow life care and apply life here i don't have time to discuss those now but if you get into them you'll see they say that where the rd party administrator has some level of involvement in initial claims processing but then some other party makes the final decision the rd party administrator is not responsible for funding the benefits based on that final decision it's whoever makes th yes i mean we're joining c h s and all their other arguments but even if the court would rule against the sales in you're not responsible because they made the final decision in the case law holds that means they control the decision process and they're the party  litigation the defendants had acted in good faith and so the court i'm talking specifically about post remained exactly the district court re minted at which point c h s made the final decision bed partners was not involved in that decision the district court decided that c h s had acted their decision was neither well reasoned nor supported by evidence they wanted to discourage that kind of conduct the conduct the district court wanted to discourage with c h s misconduct so it was error to make made partners jointly and severally liable for those joe made that argument to the district oh yes we did your ok tha first just it does get a little confusing the st benefits determination was made by med partners the t p a who deny d s ties climbs on the basis that they exceeded twice the medicare rate the plans definition of customary is within the range of what other hemo dial says clinics charge in laredo so by going to the medicare rate which is not mentioned in the plan definition as the district court judge said they just stretched for something they made up their own definition that was an abuse of discretion argument as they were the  a they didn't even have the plan administrators right so that really should have been a novo review but the district court said even under the b s abuse of discretion they misapplied the plan deny d s is claims to the extent they see a consulting charge for per the nominal dialysis the district george said i mean the district judge said that's bad faith that's not what these services were so she denied that then finally at the end of the case the judge on her own said i think we should caf the size charges that fifty percent a motion to reconsider and the judge rejected that position she said no there's ambiguity in the plan about fifty percent cap i'm not going to apply what's important to note is that there was never a benefits determination on the fifty percent cap that's not something ben med partners or c h s ever decided so all the decisions that stem from that are not before the court c h s did not appeal the nd benefits determination and to the extent they appealed that fifty percent that's a red herring because that was never a benefits determination the judge grasp it for a little while and then let it go all right with that having been said let me talk about the assignment the assignment was i hereby authorize you to pay my provider directly and judge oh roger held up the assignment of benefits form for thirty years since the herman cases that language i hereby authorize the pay or to pay the benefits directly  and it's been an assignment to the provider of derivative standing to sue for nonpayment of cover in a fit so i understand the argument that it's an assignment or purports to be an assignment but can we talk about the text of the assignment clause in the plan ok the word assignment appears in there three times and it says absolutely no assignment right it's not obvious to me how they could have done it any clearer other than say we absolutely really really really mean it no assignments then there's a th sentence that talks about payments for convenience but doesn't use the word  can make convenience payments i don't understand how that seem big as to whether and to what extent the insured h s can make an assignment to your client d s i let me address that the assignment cla language the patient may authorize the pay or to pay the provider the right has it whether you call it a receive federal common law whether you call it gap filler whatever you want to call it that language means there's an assignment to the provider of the right to sue for unpaid coverage benefits now that can't be right because well literally the next sentence says that you can't bring clip rd party claims ok let me let me your point is what the what they needed to do if they needed language to displace this thirty year body of a result law they could have done that in fact they brought to your attention a rd circuit case which is a perfect example of language that displaces this it doesn't it's not enough just a conflict it to say something contrary because that raises a ambiguity you need to displace so they could have displaced it what could they have done they could have said as you saw in the rd circuit case that the the patient's authorization to pay the provider directly does not assign the right to sue for benefits that displaces it then all the rest of your language is consistent but without that language that displacement language what you have are a bunch of sentences that conflict and that's exactly why the district court judge said if you want to do these plans and you want to do an anti assignment which you know we don't lie because as judge said it's completely contrary to the real world then do it in plain simple language that makes clear to everyone including federal court judges what you're trying to do and they didn't do that adding more and more sentences doesn't help just make it clear like the rd circuit did two sentences they did it now also in the real world this hardly ever happens you know why because since herman and since all the circuit courts have come out and said your authorization lets you do this what plans now do is they authorize themselves to pay the provider directly and when they do that you don't have a conflict with the patient's authorization that assigns the provider the right to sue for unpaid benefits and cite twenty cases in their reply brief but you look at those cases and there are about the plan authorizing itself the discretion to pay ok here c well in the may st if you authorize us we may do it ok but may is we'll do it and that's what they did there is no despite that it was up to the plan whether it does it or not could be authorized by the patient but the plant can choose to do this to make it easy for the patient or not well in this case there's no issue that they honored the patient's authorization they paid directly right but that's different than having a right to come back after the plan that you may say as a courtesy will pay directly but that's different than saying you can sue us directly if for that any benefits you didn't get paid that's a very different thing isn't it well two points one we can't ignore the thirty year body of a risk law that says a patient authorization assigns the right a provider to sue for unpaid cover benefits it's not fair to not read that that is well established broad consensus of the circuit courts ok that they bargain for something different i mean we can argue about whether was a real bargain or  not but they they got something different in this plan and then to the extent that we are fine tuning the word may in the concept of a thirty year rissa body of law and all the other things then i think it's fair to say that the ambiguity is construed against the play and in fact i used to that because it isn't the rule normally that ambiguity is construed in the favor of the plan administrator they get to win an ambiguous term they win unless it's not you know unless it's completely outside the ballpark that's a good point and that goes back to what i was saying number one the st benefits determination was met partners who denied the claim on the basis s ok and the court found that that was a bad day ok you know the wilbur factors bad faith is one of them and c h s did not appeal the nd determination so you don't have before you that point of appeal about the plans administrator having discretion to resolve ambiguity about the antis on that you don't have that inference so we just have to be did novo on the plan itself that's what the district court did that's what you would do ok so if we so you believe that the normal ambiguity goes to the administrator does not apply because they failed to appeal that properly is that  issue because it's coming up all the time or have some power so read in the issue and if the court finds that the anti assignment clause apply then the alternative that the district court found was that the anti's song clause is not affected because of the tennessean we have to reach the tennessee issue well if i mean if you were to find for me on the assignment you would not have right but if we go the other way so you go the other way than you would need to address that now ok so going to going to the tennessee assignments and of course c h s did not appeal that the plan was a tennessee issue insurance express anti asylum clause so when you're talking about a state statute here which was about a pension plan there is an express a receipt provision that says no assignment so the unsurprisingly found that that was connected with and preempted by arista but that's not what we have we have a wealth purply and and as we all know a recess says absolutely nothing about assignments in a welfare p so looking at the risk the risk preemption analysis in a nutshell is it related to that doesn't help you much is it connected with ok what does that mean well st of all as i said a recess says nothing about assignments so we're not talking about a matter of plan administration set forth interests cases like i pronounce it go be but perhaps on this pronounce it that related to was preempted we're not that case because our are a recess says nothing about assignments so the real question before the court is does this interfere with nationally uniform planet ministration and we all it's saying is that if you have a risk the plan that's an insurance policy all it has to do is say that the patient's entitle to assign benefits that's a one sentence not a great burden you could even put in there if the if the put the rice ok so that way all your plans all over the country could say that same language and it would only apply to something like tennessee or you still have an assignment of benefits which is simply one party gets substituted for the other there is not an expansion of rights there's not new plan administration it's just and think about it in the world this is what happens we work with the interaction is all between the pay or in the plan claims are processed electronically they're paid this way they work it out ok what c h s is saying is what w dispute all the sudden now it's too burdensome on the plan to interact with the provider what's changed nothing's changed it rep heats the st circuit specifically noted that the statute appl bringing an action for benefits the hospital got assigned that in this case the provider gets assigned that there's no added burn benefit or burden or whatever finally my last point is is that if this one provision about putting a saying in the plan that the patient is entitled to assign benefits if that's too onerous then that part's not that parts preempted the rest of the statute which is what our argument is the rest of the statutes fine our argument is that what our defense against the preemption is that the patient is entitle under the governing tennessee law to assign benefits that we don't we're not arguing about whether it was in the plan or not the speaking of things not argued there's a ton of stuff argued about for p rip how we pronounce that case the louisiana case repeat us texas health and the presumptions of preemption or against preemption that specifically says that this person may assign these benefits to the health care provider the plan itself says again if we get to this part of the argument we have to assume argue indo that we've said it doesn't fact prohibit the assignment of benefits to a health care provider seems really related to they do the exact same thing just in opposite directions well the argument is that the tennessee state statute is not related to risk because we have pursued the a ris may now or hereafter relate to any employee benefit plan just back clause of i just have short time remaining but you might take whatever time you need to answer judge oldham's question which is an important question to the case sure so you know go back to look at the states rights look at what the risk is intended to do look how clear a receipt is or isn't on the subject now with a recess or any federal law it's all preemption of state of federal law so on a risk because it has that nebulous relate to language then you have to do an analysis if the if if what is in the your wrists and language is so clear pursu to the text the plain meaning then that's what the courts auto apply they should do a presumption against preemption when that text says what it needs to say let's use an example it's that franklin case the california franklin tax case that's a federal bankruptcy court case a federal bankruptcy code case it was clear in the text and the supreme court said we're not going to do a presumption against preemption we're going to write to the the text is clear we apply that compare and contrast that to the you risk the body of law which is what those relate to me ok let's look at the text of a receipt if it's not clear and in this case absolutely nothing about assignments ok so we can't go right to the plain text so it's appropriate to step back in a recess and say states rights police powers what is a risk or want here there's still a presumption against preemption when you relate to a recess i don't believe that that california franklin law says travelers overruled a presumption against preemptions wrong we don't follow that anymore and then to take it to a risk a level it doesn't say any of that franklin doesn't say anything if we were to conclude with you would we create a circuit split on that issue i don't believe the circuit courts that they referenced in their brief were a risk they were a lot about f and other federal laws maybe the bankruptcy well bankruptcy code got up to the for in court but other federal court cases addressed other federal law i haven't seen a split where somebody that travellers presumption against preemption when the text is not clear is gone i don't see that thank you counsel we have your argument  them you asked about the tennessee statute it specifically tails and recipient and what it must contain not only does it mandate assignment it says that assignment right must be stated clearly in the policy so that goes right to the heart of the plan rd if i have any time left from what i took up earlier i just wanted to quickly go through the thirty years of risk the law is he's citing the herman cases from this court herman one and herman two herm two was written by judge wiener who also wrote the turner there's no conflict between those two cases the turnover looks at specific language that's also in this plan if you look at page nine of the reply brief the senate's he's relying on is not as a convenience to the out of network provider it is a convenience to the participant interests of requires a plan to be the trustee to its warns the participant the insured as you've called him h s he is whom we do shiri obligations his incentives are the same as ours which is to keep health costs low and when he's in the administrative realm we have those same incentives in common and he's he's the war fiduciary when an ad of network provider comes in there incentives are the exact opposite their economic incentives are to get as much as they can get and so it's not the same client and it's why this language exists in the plan is to say if i have an if i have a negotiated rate with you in my network i'll pay you directly as a convenience to my participant because we are improving we know what dallas has cost us when someone comes in and charges six thousand dollars for one dialysis treatment when medicare and the secretary of health and human services have looked at cost forty two dollars u s c thirteen ninety five dollars are our congress told the secretary to study all of this make sure what are the costs what profit margin can a dialysis clinic or earn the secretary studied all that and two hundred and fifty dollars is the right but that might be different in laredo and the in the statute speaks to that honor subsection b fourteen tells the secretary to adopt a system that has upward and downward adjustments based upon geography and wage in land is not tied to the medicare rate no it's tied to give you a record but you did not argue that whenever you were getting the claims process at the time at that it you were just argue that at the time in the administration yes indeed in the in the lawsuit we did yes thank you i'm sorry to know your front belabored so i understand what i understand the arkansas blue cross and same francis both support you on the relates to argument as a risk of preemption or keystone in particular on this assignment question are there any cases on the other side will just make one point back to med partners as the rd party administrator in this case if initial claims processing by a rd party administrator was enough to make the rd party administrator liable for paying benefits under the plan even where the ultimate decision is made by a different party acting is the plan administrator then the rd party administrator would be liable in every case because the rd party administrator is always going to have some level of initial involvement in the claims handling process what life here indicated in what the cases since there have held is that when the ultimate decision is made by another party then the rd party administrator is not liable for paying those benefits thank you council we have your