this case is here today on a twelve b one ruling by the district court who found that my client's did not have standing as a risk to the beneficiaries and we believe that he erred in that decision in that we believe that our client has standing as a person designated by a participant or by the terms of the plan who is or maybe become entitle to benefits they're under and those are the two areas if he is designated by a participant or by the plan  terms and so the direct beneficiary would be if it was just going by the plan and then the derivative beneficiary would be someone who is dizzy by the participant but it does seem that in the ward case that we  specifically that assignment of a right to payment to a provider does not make the provider a beneficiary in the sense that you're talking about from the plan terms correct and i mean yes that is the way that most courts have interpreted it in the state circuit hinted at that i believe in the war decision and he said the fact that a provider may be entitled to payment  were bound by public opinion that seems to be pretty on point as it is not somehow now i believe it is distinguished one argued that in my brief i don't know how much time we necessarily have to spend on that today because i think that the other side the derivative beneficiary  is frankly a much stronger argument however i don't want to just leave that alone because i think the statute is actually clear an assignment limited to the description of the assignment given in the assignment the courts that have under the statute to create a assignment that would give you standing under under the resistance to get the payment to get what is assigned to you exactly and actually the third circuit spoke to this very d actually was not dealing with this issue is dealing with whether the plan terms and so on and so if the if if under ward and we are down by one i think you would agree  know but it just seems like it's a major hurdle period so if you if you agree that's a major hurdle why don't you go to the beneficiary i mean the derivative beneficiary argument ok let's go to that and i think that if you look at the circuit court to have looked at this issue the first the to payment or even just assigning direct payment is sufficient to get derivative beneficiary status and that's not just in the circuit court but also all the way through the district courts of the the vast majority of course that have looked at this issue  said and i list a whole long laundry list of cases in my brief that as long as there is an assignment that provides direct payment to the provider they have standing so for that reason alone  clients had standing and have standing and the district court's opinion should be reversed so so that's one issue and of course because i believe that the law is pretty sound on that issue the defendants instead in their refer response brief turn to somewhat of a kitchen sink approach of throwing every other argument that they could find if they're valid absolutely so let's look at some of  argue that that right then gives you some sort of plenary status to assert any plane under a risk and i guess my question for you is if you're right  f the right you were signed is simply a right to payment and blue cross has in fact made the payment on behalf of the patient would you agree that the patient as things stand now would not if let's say the patient had not assigned their rights to your clients the patient would not be able to sue blue cross at this mall right based on the disagreement between your agreement is recoupment covered under blue cross is trying to what agreement is recruitment covered by recruitment is under the provider agree ok and that's what blue cross is saying is the only thing it issue here but that simply is not the case if you look at what the provider agreement list as the reason for denying approving a claim they say it's the individual plan that underlies the entire policy the insurance policy the plan every ad the provider agreement lists when we make a claims decision we go to the plan to wrestle plan if you look at the policy manual it says that the claims decision is going to be based on the underlying plan of the individual member in fact if you look at document party to the provider blue cross is pursuing suing whatever they're doing hero your client under the provider agreement you were trying to assert rights and in your capacity as asked in the of a patient and those those two capacities just don't mix the under the provider agreement isn't that true well i think that the real issue however is and what all but let me just tell you when we ask a question you have to answer directly then you can talk about whatever you want to talk about isn't that true that asserting defenses that a patient could assert is not helpful to you in dispute regarding the provider agreement if this was a dispute under the provider agreement i would agree however it is not and the reason why it is not is because when a person or an insurance company wholly denies a claim it is no they haven't wholly denied the claim they paid the claim and then they've come back and said this was an investigatory procedure is not covered and we are recouping what was provided and recoupment is an item covered by the provider agreement and the beneficiary of the plan beneficiary is not a party to the provider agreement and if we're koopman is just talking about the amount of payment vs what the denying or prove the claim then at that point it would be something that would wholly be under the provider agreement however this is not talking about the rate of payment is talking about the entire right to payment and that always are going to be governed by the underlying a recipe land courts simply have universally found that when it's taught we're talking about and entire denial of benefits at that point you were no longer talking about the rate of pay me you're talking about but a beneficiary could not bring a claim against blue cross for the amount paid for the investigatory procedures because the claimants had the beneficiaries had signed an agreement that if the amount was refused that they would be personally responsible for it and therefore they have no right of action not only because they are not parties to the provider agreement but because they have signed an agreement that they will not seek reimbursement to themselves for investigatory procedures and i think  that's not accurate on what we're looking at here is the provider is stepping into the shoes of their patients and because the claims have been tonight they step into those shoes and are asserting their rights on behalf of the  patient when the patients have no right because they have signed for investigatory procedures they have signed an agreement that they will absorb that cost themselves what well i think you read light on so you can see where i'm coming from absolutely what i would call an end run around the expressed terms of the provider agreement which we content is controlling in this building let me ask you the district court in its decision fight it the wart case but the proposition that brown this court to probably look to some of the more decisions from the second and more recently judge mr brooks decision from the seventh circuit that really really digs into the discussion on that and makes very clear of the myriad of reasons why a provider is not a  that the fact that a provider may be entitled to pay but under a plan does not give rise to beneficiary status i think that principle though is helpful here because that's also a principle that was alluded to in the robust decision from the sufficient to confer benefits or status under wrestle here we're talking and i'm jumping to the derivative issue for the moment we're really looking at a document that arguably does the same thing it says i hereby request in this case i request that sufficient to arise to the level of an assignment under risk we contend that it's a very limited assignment the to your point it is only limited to the right of payment and i think that's very critical in this case to recognize because i think it's  for services covered under the terms of the plan and that's critical because we're talking about and you want to be claimed anyone be talks about recovery benefits under the terms of the plan and forcing rights under the terms of a plan or seeking a declaration as to future rights under the terms of the plan in this case one can vote high and low in the plaintiff's complaint in their amended complaint they are not asserting the rights of what is covered under the plan to be clear they're they're not seeking any kind of merits based determination as to what's covered they're making a very different argument under a three they don't even dispute that these services are investigation i've seen no allegation that they even disputes that they're saying is the briefs indicate that blue cross is liable because we violated the claim regulations and those regulations that were promulgated under missile eleven thirty three and so that's what this case is about regulations are what are promulgated by the department of labor under twenty nine us eleven thirty three that's the enabling yes your honor so that's the eleven thirty three is the enabling statute under which the deal well has probably gated these yeah there's a number of complaints of it we didn't need to timeliness requirements we didn't meet the notice requirements these are procedural guarantees been active thing that could under eleven thirty three and that's very significant because that's the their complaint in fact out that the top of page fifteen on her gets reply brief they make very clear to remove any doubt from the issue this is not about what's covered under the terms of a plan this is about whether there are allegation is that blue cross h violated rescind its claim regulations so a claim for the violation of the claim regulations falls distinctly under a theory that's the catch all provision under arrest so it's a very different bundle of rights than a one b which again is wrapped up with what's covered under the plan which is not what we're talking about in this case no court certainly not one sided by heritage has said that language such as what we have here which a best an assignment of the right to payment extends to these equitable and other remedies under a three i think those are very substantive remedies that congress carefully and deliberately enacted to protect participants and beneficiaries and it's a four way to your remedy then the language of these patient forms can bear to say you know all we have here is a document that says i hereby request that the insurer pay the provider directly there was no basis under any certainly any traditional content contractual principles to interpret that language to mean that the door is open now for harr take all the sorts of allegations that they're entitled to enjoin blue cross from exercising its contractual rights that they get a declaration that that we violated regulations and that's very significant the violation of regulations number one these are procedural guarantees they don't mean if blue cross violates then you win that's what they're saying they're saying blue cross you didn't you didn't make you were coogan's within the thirty or forty five day window therefore you lose that's their argument when somebody when an insurer violates the regulations all that means is that the claimant is excused from exhausting mistr remedies and they can go to court without further ado but for a merits based determination for a determination of what's covered under the point again that's not what they're asking in this case they're not they're not saying we need a finding that all cats covered under this plan they're trying to stay away from that they're saying we win late challenge that's right and and the that's not what you know they're trying to invoke substantive rights under procedural rules and i don't think there's any real valid authority to do that so they're trying to get a toehold under a one b and then they're trying to leverage that into a right that they clearly don't so again what we're asking this court to do is number one affirm the district court's decision that you had to sign forms don't assign any rights but to the extent the court does find that they  right of payment that that right does not extend to what's at issue here because what is it issue here is this really far more than the right of payment it's about the violation of regulations and whether that you know they're entitled to injunction and a three really that's what getting back to what we were talking about before i had to want to address a couple of things that opposing counsel brought up but what we are about here right now is actually the plan benefits and the plan benefits under the right that argument would be a lot more effective if we were dealing with a different type of claim the type of claim that he's talking about is the claim where and then all the cases he cited in his brief are cases where the interest company denied the claim at the initial face and the provider is actually bringing the claim saying i am owed these benefits as the provider would if it was asked and the haitian insurance company had refused to pay out right exactly here in which case it would seem that the patient's rights have been satisfied and really what is left is this agreement between two parties to another  provider which the patients assignment has not and if so what's wrong with that so well because at the end of the day it's going to be the patients that are hurt now the patients not heard the patient has been reimbursed yes but the and the health care provider can't go against the patient why the provider is allowed to go after the patient if it's a non covered service and we ask the questions sorry i apologize this provider agreement says the clinic may not seek payment from a patient for services rendered better considered investigational which is what i understand the services here so in the provider green and blue cross has agreed not monies at issue in the dispute between her again across blue cross the terms a great read are you saying harry gets not allowed to take the money back from their patients yes no here on a blue cross has been paying these claims for years and never letting their providers know that their investigation they're going to be denied and so now they're saying we can go back and recoup money from two and a half years ago claims they've been paid long paid blue cross and the provider as what blue cross is arguing however what they're doing in fact is end run around their rissa defenses that the patients have this is patients aren't affected so the patients don't need to exercise their defenses