had like to reserve two minutes for the body as i me this case is about a woman who suffers from a host of mental illnesses including major depressive disorder post traumatic stress disorder stemming from childhood sexual abuse and fees collective ailments of as i understand this record and need your help on it with respect to all the hospitalizations that are the subject of the dispute in this case the plan if you will to take collectively the defendant said we think a different form of treatment than the one you're receiving equally if acacias and less costly is that fair that's fair and that was tip outpatient treatment of some variety of intensity right well there are several levels of mental health treatment and at the top you have hospitalization i didn't and then you went on to residential and it reached a stage but something less than hospitalization was the most difficult was it reasonable this the question is was this a reasonable decision made by the planned for do sherry's and what and when does it become reasonable if they have the have the record analyzed by an expert who who says this is this is the best form of treatment or the most efficacious form of treatment and does become unreasonable simply because you have contrary evidence it becomes on reasonable well you have to look at the rationale for the denial in order to determine whether it was reasonable and simply the fact that the administrator has obtained reports from physicians saying that this treatment wasn't necessary just because those reports exist doesn't mean that the decision i see reason add to the fact that the reports exist the fact that your client the one hospitalization it doesn't seem to be at issue here the very st one  recommended outpatient treatment at that point is that those that make their determination reasonable i'm sorry not sure and your question is as i understand it the record there's a there's a hospital patient in this the appropriate next course i don't i don't recall i'm not sure i can answer that question i'd have to dig up the records and if that were true would that be a fact that we would that the administration might be able to take into account  n making its decision it's something they could take into account yes but also the court should also take into account the lapse of time in between her treatment it was there ever any outpatient treatment that your client had that helped or improve her condition she'd receive many forms of treatment throughout her life including up patient treatment but i think it's clear from the record of this court takes a look at it that she at this time she experienced a real exacerbation of her issues and so it's for that reason that we think and one of the foot grech or question there's no circumstance at least involving  claims here where optum slash plan didn't offer to pay for outpatient treatment although is there any circumstance where they basically said you don't need any treatment at all no off them always always offered a lower level form of treatment and that's what makes this case interesting is because in many of these types of cases there's one level of treatment issue but here in this case she received care across the spectrum she received residential treatment partial hospitalization treatment and intens  outpatient treatment and at every level of treatment options said this is the wrong level of treatment she and that's what makes this case hard at least from my perspective in terms of review we normally see a risk of play in denying treatment and we can say that was a reasonable here somebody obviously had a difficult problem and the fact you got an expert to say it's not difficult but here we have a fight about the level of treatment so how do you how does that how does that weigh come into our analysis and use of discretion if we have to do that right well i think the way you look at it is you have to look at the opinions of the treating physicians and then compare those with the opinions of their reviewing physicians that are us let's assume that standard views abuse of discretion is what's your best argument and just lay it out for us in terms of the facts or or whatever why optimum was still wrong to deny the benefits because it seems to me you have different varying levels of care that they approved and there are some disputes whether or not it should have been this at that time and it also seems that an abuse of discretion assuming that's the standard we apply so certainly certainty give us your best case yes and just as a broad overview these various levels of treatment are set up in a way to assist patients to give finally granulated treatment that will help them out ironically this very system of granulated treatment works against them i try to make benefit claims because then it gives insurance companies and plan ministers the ability to say oh yes you did need treatment we didn't need quite that you mean you need a different level of truth and in this particular case i can tell you why these decisions were wrong because under abuse of discretion standard of review what you're doing is you're looking at hopkins decisions were those decisions reasonable based on facts in the record and if you look at optimise decisions you see that they consistently use boilerplate conclusory language they use standards they apply standards that either work in the plan or in their guidelines on several occasions assertion that she's medically stable but medically stable is not a criterion for denying claims in the plan or in guidelines chamblee if somebody is medically unstable you denial for her treatment for her partial hospitalization treatment had to lend to it is the most egregious one because it's it's joining this period that she is engaging in behavior that i mentioned at the outset where she's dissociating from reality  and she's having trouble maintaining hygiene she's taking her clothes off in the middle of the day and it's drawing this period that optum addresses and says and it's the now letter that you're thinking was clear and you were not depressed that's what their denial letter the final appeal denial letter says and they say this during a time period when she is dissociating and is truly depressed because the treatment records say repeatedly that she's suffering from depression and so and this is a problem that we see t have suicidal intentions and she doesn't seem to have a dangerous body weight she is eating disorder and they they conclude on they conclude by looking at the time when she was admitted that her body weight wasn't dangerous is there is there evidence that those those conclusions that they made were are not supported by the record anyway with regard to the body weight that's another fact that i think good example of why the decision was  of discretion standard tilts the other way if we're arguing that they feel that they based it on facts that were not accurate or not supported by the record then we have a much stronger argument for abuse of discretion so you really arguing is that the fact that they were relying on shouldn't have been facts and even if they were accurate no i don't i very often as i just said they relied on facts that simply were not in the record ok that's what we're  asking i try to point to the record there and ask if those facts were in the record or not did doesn't the record indicated a level and she denied that she'd harmed herself word suicidal intentions she said that on admission but if you look throughout the record there are many occasions where the particular records show that she had passive suicidal ideation which is a desire to be dead but without any concrete plan and at that time when they made that decision that you're saying is probably the best of that beats behavior is ever addressed perhaps in any of the deniers in fact if you look at what optum didn't stand i letters it narrowly focused on what plaintiff was not experiencing instead of focusing on what she was experiencing and explaining why those experiences didn't support the payment of her claims if you agreed sometimes the record is conflicting you know the words she was reporting one thing then another or doctor was finding n discussions tannery view the important thing to do is to look at the dials and see whether they're supported by facts in the record and these denials either aren't supported by facts in the record or cite the facts that are about are irrelevant if such as example such as her weight and the fact that she wasn't purging and what's your best case because i mean it's certainly a fair point if the medical folks here were focusing in on facts not that she was not exhibiting what's your best case that says hey when when they do that we need to save abuse of discretion the lucas case which you said in a brief but the best one for that i see i'm sure in time and we haven't and i represent the motion picture industry health plan i would be taking ten minutes for argument today and my colleague ms klein representing optimum health would would like to take five minutes of our total time  i think that the court hit the nail on the head when it noted that this is not a case where there is an outright denial of any let me focus for a moment on ballantyne which he highlighted for us today according to his opening brief many of optimism findings contradict the evidence not necessarily that they were supported but contradict example in denying coverage of the lenten optum wrote that jacqueline did not have depression but the record indicates she was diagnosed with a major depressive disorder both recurrent and severe eighty five dash eighty seven and one hundred and ninety two so will you concede that at least some of them findings seem to lack evidence yury support and if they do then wasn't denial of coverage inappropriate no honor i would not concede that because i think what they're referring to is a april th two thousand and eighteen letter the final letter that was after the district court remanded the question back to opt out and as the district court recognized in its opinion there's an obvious typo in that letter and if you look carefully at s c r thirteen what you'll see is that there is a statement that reads while you continued to face challenges as you worked on recovery especially with and then this is where the typo exists it goes to a different sentence your thinking was clear what happened was somebody inserted some language in there and actually the end of that sentence is three lines later whether it was the way it should read is why you continue to face challenges as you worked on recovery especially with depression urges to be injured and dealing with past trauma you did not require the kind of clinical obviously you have the crimes hadn't been to these two crimes hadn't been decided it's true you're out and they came up and if they had a court has had to address them at that point it would have had to i think used it over a review but instead it decides to re man and it says i did this after discussing it with the parties the parties agree that a remained was was appropriate or do the court just say this is what i think i want to do tell me whether i think you think i know your honor we argued that if the court felt that that that decision ought to be made enjoy the way he would have made it but telling me if i didn't respond i think his argument may be a little more nuanced that i'll respond to your question st and then look to what i believe his argument to be has more nuanced argument the plan clearly does provide that the directors have the authority to delegate claims handling and their discretion to where does it say that and their discretion because that's the language if we go back right because you're want to may recall that there the case law says that you don't have to when you reserve discretion you don't have to use the word discretion it simply has to be clear that i do reserve i should there's no doubt in this case the planned reserve correction so his their argument is the plane may have reserved discretion but the plan didn't delegate discussion if we look at the administrative services agreement it specifically delegates discretion by name it says the discretion is delegated in the language  there is actually a provision that would allow a nd level appeal if plaintiff requested it and that it then that would be to the plant itself under under the essay optimise required to then transnet that lucas with me on there so i'm afraid i can't to address it directly here but spock that's my response to that is that the plan for optimum this case who was the administrator for the plan looked at all the facts and circumstances discussed them all and concluded that given things like her medical stability the fact that she wasn't actively suicidal the fact that she didn't have any homicidal attack the fact that she had in the past been successfully treated at an outpatient level shortly the fact that there was nothing to indicate that she couldn't be successfully and safely treated at a slightly lower level of care in the instance of process partial hospitalization they suggested intensive outpatient and then approved the tense of outpatient for a period of about ten days when she transitioned out of the unauthorized p h p and then said after that we need to move to outpatient so each time there was a there was a and and safe treatment at a lower cost is a condition to coverage and that's what happened here that's the bottom line so when i looked at the denial letters i thought that they perhaps lax and that i was backing but then as i reflected i thought well you're not denying coverage you're merely distinguishing what level of coverage is appropriate and that led me to conclude that by identifying the things that were positive in her records would support the decision that she needed a lower level of treatment rather than a higher level i think that's right your honor i think they were looking at her overall medical condition to determine if she needed this kind of intensive i mean in terms of the residential care it's two hundred and forty seven in terms of the partial hospitalization it's five days a week all day intensive outpatient kids depending on who you look at that is treatment and some lower level of care i think i'm not sure i can tell by looking at the policy or guidelines so what's the how do i know when when your folks sit down those are post hoc criteria if you will i'm trying to figure out whether or not in the earlier ones too because it in connection with each of these denials there's actually a letter that went out in time of the year at the time of the original denial as well that identified various standards i remember in one case a standards several of optimism turtle guidelines all of those are cited i'm not i'm a physician i know how to figure out what we have we have we measure a decision based based on facts against an arbitrary standard unless we know what the standard is for admitting for hospitalization treatment i think it comes down to the fact that you had four or five psychiatry us either employed by optum or by a p view company look at these apply their professional judgment and conclude that a lower level of care was appropriate in an abuse of discretion standard that seems to me to be enough when there's nothing inconsistent with what they're saying in the record sometimes for hospitalization was requested she got partial when when she requested residential treatment which is the tw briefly that as if you know this too jeff that the plan did pay for weeks of treatment so it's died as a fall payment was denied weeks of treatment were paid for and just very briefly your honor is the difference between residential is that tw forty seven care the person lives in the facility and gets treatment as needed partial hospitalization is the person comes to the program and spends hours in treatment every day intensive outpatient is the person comes to the program on a daily basis for fewer hours of treatment and then there's standard outpatient where the person is in standard treatment with the therapist but the points that i wanted to make on behalf of optum obviously we join in the pants arguments and when you cross appeal exactly so tell me why you're not the proper and proper defendant what is case here your exercising control over her benefits claim process they aren't you well we are we are conducting the doesn't that give you control over benefits claim process no it does not your honour's but especially since we're not paying the benefit and that's the key distinguisher here we are post judgment and the only relief that is what case do you have that says i know you are you're from general principles spend spend it x in our in our courts to hurt you tell me what your best case is that somebody who processes the claims makes decisions about denial because they're not complaining about how  so all the plaintiff is asking for is a money judgment arista section five hundred and two a one be permitted participant or beneficiary to seek three things one is a money judgment which would not be appropriate against optum because we don't pay the about future benefits and there's no ongoing relationship an ongoing right and an ongoing argument that this may come up again that we should not be independent because plain and simply we cannot pay the benefit and very don't really know how to go back to  favor with regard to payment for treatment four years ago so there's there's no allegation of ongoing treatment no allegation that octant could or could not do anything in the future this is all payment i'd like to return briefly if you want me i'd like to return briefly to two issues that we discussed that i perhaps did not have the best answers for when i was speaking earlier the court asked for the best evidence regarding the player's treatment for lent i would direct the court case was i mentioned the lucas case i'd also like to direct the court to the pacific shores case and in many ways that case is actually better than that case also involved ot them and the court found in that case that the medical reviewers had made critical factual errors and we the appeal and it's clear in this case that op did not do that and they only did it when the district court ordered them to do it so it was very clear under the regulation and under this court's decision in jeb ian says is that we're not go place then if you know the words wouldn't isn't the remained then completely irrelevant because the district court has to once again make exactly the sort of determination on exactly the same evidence that the that the plan makes record at that point you get yet a full consideration by the administrator of all of the appeals the question is well do you defer to those determinations or not and you have been very clearly says that if you don't comply with the deadlines then you don't get that difference and