hellerstein and may it may it please the court this is russell petty representing ryan a and with respect to the standard of review which i submit is that the key issue here in this matter the law is clear but in this area is clear about anything it's that when an entity with discretion utilizes another entity to decide claims for it unless there is an effect delegation of discretionary authority then the decision will be reviewed the noble that's the the holding essentially of every case that addresses this issue before the court and particular it's the holding of the  acting it was acting as an agent anthem rather than as an independent contractor so i'm trying to understand your positions your position here as to why that was not ok well i mean that that's essentially what happened in this court changes asian if it's evidence as i'm sure the court is aware and shane you had just like you know you had trustees with discretionary authority and the ability to delegate in chain the trustees delegated to the vice president of human resources mr snow and mr snow utilized the medical review committee or m r c to actually make the decisions now mr snow attempted to delegate discretionary authority to the m r c but this court and shane held the plan did not contemplate that type of a delegation and as a result a review the district court properly reviewed the m r c decision to know about so i mean there's no question and that in fact that that the m r c was deciding claims for mr snow and for the trustees both of whom had discretion but the fact is and then the law is clear that no making the decision actually has to have discretion your honor and and this case was actually directly under the same argument was made in the st circuits rodriguez lopez case in that case the there was a you know a plan in any that had that had discretion utilized rd party administrator to whom there was no grant of discretion to decide the  and you had the power to decide claims but that doesn't mean you had discretionary authority those are two separate things and if i conclude directly from the decision over at page twenty three it says as we have noted it just means that triple s that's the administrator had the power to decide but power to decide this not amount to the existence of discretion and i submit that's the exact same same thing here your honor anthem you him may have had the power to decide but it did not have discretionary authority because there was no effective delegation of of discretion what was the formal d relationship between denton and then answered you when you're on a there's there's no evidence whatsoever as to the formal relationship there are some notes on some of the letters that says that in effect th anthem uses anthem you m to perform claims handling decisions but other than that there's no evidence whatsoever of whether you know anthem un was a was a contractor or an agent  know if the decision were made by employees of anthem it would be anthem decision if it were made by employees of anthem u s it's the decision of anthem you m and if there's some question about you know  employees of more than one entity which was the case in the campbell and certain door for an andersen cases well then you know there has to be a fact will decision will who actually made this decision and you know the district court found the decision was made by anthem board so i think you're in agreement with that correct i completely agree with that your honor so the board delegated i can just kind of just figure out what happened here but the board delegated its  discretionary authority and because of because it seems like there's no imitate in limitation employ those by the law or the plan itself on whom anthem could rely on as  has proceeded and a lot of other district courts has have followed that way i think it's the sun darker be versus you have life insurance case and i realize we don't have review claims for it then you know discretion is automatically conferred or auto automatically covers that what happened in campbell and turned door for and anderson which is a similar case is there was a situation where the decision there were employees of multiple companies involved like for example anderson there were employees of you know i'm a life insurance company and you know my belief you know  america and so the question is and you know my pad this question you know america did not and the question is well you know it's a factual question we see there are employees of numerous companies involved here who actually made the decision and offer and temple that was the same factual situation but in both of those cases the district court held it with the entity with discretion that made the decision so so none of those cases stand for the proposition that when   the courts have been fully you know the noble review in the case were cases where they have relied on evidence to show that those who made the complaint decisions were not acting  again there isn't a case anyplace standing for the proposition that when a and any with discretion uses an authorized agent with no discretion to decide cases that discretion automatically flows between them and in fact is as i said at the beginning of this argument that's directly contrary to saying because in saying there was an authorized agent it was the m r c they were working for mr snow mr snow had the discretion so you life insurance company of this court held that agency principles apply in the context of a receiver universe or claims immediately that case did not involve the circumstance we have here which is you know what happens in to what extent  by definition a corporation only does actions on you know if you authorize agents raided corporation is not a person or person can't take actions other than through its representatives and that there's nothing inappropriate about relying upon you then we need to put some clothes on that and let that out a bit about about you know what does that mean it's one thing to have folks who are helpers compiling medical records doing research and what not i don't know what it means to say they make new law i think i think in this case because we're presented with a factual five mins of agency there isn't a need to reach the issue that you know the end of the day the standard to review the factual findings of the ultimate determination of whether they did  the agent in the ultimate determination of who made the determination you know are are really the factual ones that are being challenged there wouldn't be any reason to do to make you are here so i mean the legal issue is whether and as a matter of law the agency relationship well and that kind of gets to my next point which is you know the case with bicycle ation tried on the history of record and administrative record doesn't contain any information about this particular issue so you know when judgments gerald is looking at the record  trying to just discern what's a fair reading of what happened you know he makes his findings about what occurs and that's the nature of a recess you know it's somewhat of a quick and dirty process we just look at the ministry to packer we just look at you know i understand what you're saying but all of this hides the really precedent human issue here is this very sick young man nothing works his this order but it's also associated with streptococcal action at perhaps the problem is the metering and so they want to use a drug that has not been tested in this situation they think it's appropriate and necessary us nothing else has worked i think is clinically appropriate and might be effective they think it's within the standards of good medical practice to try a drug like this when everything else has failed and that given the context it's the most appropriate procedure even though there is no valid scientific evidence that the expected benefits would be clinically significant in this particular issue in other words most of the definitions of medically necessary are there not all and the problem it gets subsumed into our questions about agency instead of high level anthem official making this decision with regard to this poor unfortunate ten year old it's sort of passed down to be treated as a routine matter into a subsidiary now if you look at it through like kind of a window there's any answer change t are not used in one particular incident and are found to be effective in that incident yeah and nothing else has worked here nothing now the real question is should the insurance company pay for this experimental device or we're not but that's a question medical necessity in the context the trying to cure a ten year old who is shown violence to a sister and his mother and everyone else wants to commit suicide and has this terrible disease so if you look at there is that rate we need to uncover who are these layers are tactical agents and the like and i and i fully appreciate and understand that i have you know little kids under five myself and when i got involved with stacy there's no way you don't read the records and you know fuel for the climate  mean stanley you know your that that sad we have a definition of medical necessity in the plan and the other thing i think that is somewhat important to kind of keep in mind and as a countervailing your consideration here is this case is not against anthem this is a lawsuit against the entertainment industry flacks plan which is by definition a self funded health care plan that means that the contributions from the plan come from plan members  and expenses are directly coming from a pool of people it's not as if there is just an insurance company with an infinite pool of money to pay things that fisheries of the plan have to consider how expenditures on behalf of the plan are whether they're authorized and you know how the power will impact the other beneficiaries or the other beneficiaries because you know if if the plan spends more money then that directly comes out of everyone's pocket because again this is a self appointed plan kind of literature out scientific literature and i think if we've tried to explain as best we can all committed leave there's a lot of dance material here there is anecdotal evidence to suggest and i think one of the article says very strong anecdotal evidence to suggest that issue with what the guidelines say what they what they have you know that they don't specifically address plans but as as i think if the trial court correctly found you know that's really because they can't list every single procedure out there and if you dive into the medical research think we have anything specifically in the record i think the record does indicate that they are updated but you know again because this is a case that's right in the ministry of record no testimony is provided to provide any context for it i don't know that we have anything in the record to demonstrate o i think in this you need effectively what can't what campbell and turned offers and which is in this you know very limited context where you have a valid delegation of authority to a company and then the company acts through it basically is acting through agents by definition there's nothing inappropriate about letting that company use you know employees and representatives of its affiliates to perform that role denial determination was made by anthem u m c medical director dr robert o'boyle your honor that that could not be clearer that the decision was made by anthem you when i'm an anthem you know when i'm alone that's entirely consistent with the evidence in the record you know all the denial letters are clear they're coming from from anthem you m there's not a shred of evidence of any involvement whatsoever by anthem employees in the decision making process and really this is not an issue that was challenged in the briefing i mean this sort of being raised for the st time on on an oral argument and i think if the court will look back at the records we'll see there's a real absence of of this type of discussion in the brief because it really wasn't it really was an issue with yes i'm sorry your hon anthem ever participated in this decision making process the with respect to the to the agency argument you know your honor i believe that the you know the flex plan it is really sort of you know reading this that out of context st off by the way i sort of confound oral argument as i did my papers i you know issued a challenge i says look there are no cases standing for the proposition that when an entity with discretion uses some works to say that this is the side cases someone who's independent well outside the company it's stretching a point the point is this is an end at the works to it  the employer those weren't people that were outside the company they were inside the company you know everything that happened and saying versus albertson's with inside the company but the law is that you have to have an effective delegation of discretion to the entity that anthem you m at one point turned to dr snyder for an opinion it's just a medical necessity you know dr snyder is not an anthem you employee she works for a company called m e s which is a claim to do service no one would argue with spite of the fact that she these are factual issues which were resolved at the district court and and you're out of i know i'm running a little long but if you just give me another thirty seconds to kind of address the medical issues i really disagree with the notion that the pen's is experimental i mean there's