medicare or secondary payers provisions an argument during virginia mason on whether such violations are actual even if medicare hasn't made payments to prevent private insurers from pushing medicare eligible patients with end stage renal disease or  that because the plans here facially singled out dialysis for disfavored out of network treatment plan here did not differentiate in the benefits it provides between yesterday patients and others in order to take into account that an individual is eligible for medicare payments there was a period of time where people are not eligible for those payments and there are people who it least in that st category who are never medicare eligible potentially so it isn't it also true that there are some people who are not eligible who are also covered by this policy but well there are some people who are who it your position that the statute requires some sort of numerical parity if there is you know are great pro con derive some want to category versus another or is it just you have to treat everybody a life in the policy and it falls more heavily on some than on others i think that the thing is you just have to figure out what congress meant when they differentiate in any manner and amy's good you can take the position and the court below t differentiate mean well it treated differently and i think that if you were just going to be treating it you know and stage renal disease patients differently from p well with a single rare kidney twenty eight thousand people said excuse me best phrase does not is not absolute meaning even if it doesn't mean what do you suggest for example treat it differently in any manner or might not mean monetary dysfunction in payment if it might mean more family forms to fill out or you know more of our doctors notes or some other irritating procedural problem but they could have they could have written year and so all the actors on the run and as far as preponderance and i had a rep for just a minute one of the points you're making me that's the central point you're making is that congress could have written this differently and to your ear  more clearly but that's that's true for an awful lot of statutes the congress could write things better leave our business is looking at someone awkwardly written statutes and i have trouble reading it in the other ways th congress saying all dialysis treatment treat all dialysis patients should be treated the same way rather than alice's treatment treated patients should be treated the same as cancer patients and other patients didn't just doesn't read very  statute that says that all serious illnesses must be compensated at the same level or something along those lines something exceedingly different from what exists here i think let me see  necessarily market power are now on their orphan drugs that only are made by a single manufacturer non there and i think it's fair to say that if there is virtually perfect identity mean people who are medicare eligible and dial up agenc their employees and their families the appellate division provided alice's services in this case to patient one and amy's plan paid all of the dialysis benefits that were defined by the plan s and those are the benefits that were paid here dialysis treatment that benefits the defeater received were made pursuant to the dialysis preservation program in the record amy's and as a result of the cost containment measures that amy's plan talk as well as other plans that took similar approaches to cost containment for dialysis or across the country just sued in his plan and in the percentage of claim paid between dialysis and other procedures or other types of illness and  are cannot recall the answer to this better all other procedures and conditions in the plan are treated at the same level in other words you know eighty percent of the usual and customary for everything and that regulation provides that it's permissible so how do you know form limitations on dialysis and use an example where a plan limits its coverage for dialysis sessions the three sessions  of procedures well judge tiger held and correctly so that the relevant comparison has to be focused on the benefit of providing the treatment of particular treat as opposed to trying to compare what really are apples and oranges between one type of treatment when the benefit for about and other types of treatment what matters under the statute is that patients who are similarly situated in the interpretation and it doesn't require anything more of an internal parity with respect to that analysis is that a fair characterization yes that's correct  reference to medicare in any way in making its plan definition and determination and my answer was there is nothing in this down from ours that would warrant is treating individually wants to try to make a comparison that is not the correct as judge parker pointed out you need to compare patients who have yesterday who are medicare with similarly situated individuals and those similarly situated individuals or those who need dial eight percent and court held that was not a violation of the m s p a because it provided the same level of reimbursement for dialysis treatment regardless of the insurance reason  even i i'm aware that counsel is planning to address the primary right of action in nd argument today but i would like to just speak briefly because i think that is a clear alternative basis they were paying the amount that's defined as usual i'm using the ball in the plan because there was no win you so there was no injury in fact to the patients the patient got all the benefits fact the amicus on its side acknowledging the defeated has not ever not allowed to do so this is not the kind of injury in fact it's too speculative and too hypothetical to satisfy the other  disagree what we have here is that in these kitchen pays full freight blue cross blue shield negotiated rates for every other condition except for dialysis dialysis alone a single doubt so you don't have to say what's apples to apples everything else gets the rates that blue cross negotiated and i think the best totally valid reading of individuals having and fit renal disease and other individuals covered by such plan the statutory language doesn't say anything at all about being limited to other dialysis patients so and again that brings us to the take into account and the opposing counsel tries to slip out of this argument by saying that  only applies to considering an individual's medicare eligibility but i think that you know when you when you recognize it overwhelmingly is covered by medicare by medical overwhelmingly the condition is covered by medicare that is considering the individual is covered by it and certainly pay for it one could have gone secondly i would like to address the thirty treatments provision which is i don't think that you have to read very much into that that's four hundred and eleven point one renal disease and that is prohibited by literally the provision right ahead of that subsection be roman at five so i think a better way to read it is to say that it's just saying as a general matter you can limit it you can say only thirty treatments for dialysis only six months of insulin you know only whatever a certain number of chemotherapy treatments because you you can have a bad plan you just can't have a discriminatory plan finally on the balance billing we don't