denial of benefits under a recess health care plan for something called partial hospitalization treatment for my clients severe eating disorder and related major depressive disorder when she was nineteen years old  as you i'm sure you know this is not the st time this case was before the court i wasn't here in the last occasion but last year the on month th circuit overruled its longstanding precedent in pierre and held that  novo review is applicable to both the legal and factual determination by am planet men a stranger but despite this favorable ruling remanding the case to the district court and mandating application of a more stringent standard of and nd the court concluded that despite her groundbreaking victory in the prior appeal in this case area on a had not achieved the modicum of success necessary to constitute it yes i am going to concede that point yeah record is missing so much of the medical records well your honor ariane was not represented in when she was nd in treatment and you know it's hard to know exactly what happened but it appears that humana and humanise reviewing doctors never requested or reviewed that medical records what they did do apparently was talk to a couple of her treating providers and you know took notes of those conversations which did support you know many of the things that i've said most everything course it's a moving target when somebody is in treatment for a while but we certainly would have submitted the record up to the time you know that we were making appealing the denial of benefits and you know our practice at our firm  also to then again submit records at the end of the treatment process and make what's sort of a post treatment claim for benefits and renew it again but we you know as i say we weren't involved at that point in years so we're stuck with the records we have and yes here in those records is there not evidence to support what the district court well evidence to support what the district court did so what's left for us to consider i would i would disagree that the evidence that is there are really what we have as i said as the two reviewing doctors notes of their conversations with with  physicians and those who know her history of you know over exercise they they know that she was covered with self inflicted cuts when she entered treatment  in april they noted that you know her doctors that she still had urges to restrict her food intake to over exercise to harm herself by cutting herself at the time of the denial all of this is noted in in the reviewing doctor's own notes and then they come to these conclusions that are really don't seem at all supported by what her treating doctors were saying about both her precipitating symptoms her condition at the time of the denial of benefits and what they considered you know based on their their own treating doctors had the full medical record the reviewing doctors did not and based on that they made a prediction about what would happen almost immediately if she left treatment which is that she would over exercise as she did terrier a very rapidly she would over exercise she you know she was saying this that she would harm herself you know she'd start cutting herself again and you know based on all of this her treating physicians very clearly said in the state and the record that the limit of record that we have that they believed and i think it's clear that she needed to continue that they believe that she needed to continue treatment and the conclusions to the contrary by the reviewing doctors really have no support even in the this is very limited record and  exercising her parents had been given some therapy so that they could be more helpful during the intensive outpatient treatment which was what humana was proposing to prove i mean isn't that some evidence to ed for treatment she was one hundred over one hundred and thirty pounds which was considered you know above her ideal body weight so this was not anorexia wasn't there weren't these while gaps in her weight it was staying fairly steady i'm not saying that's just terminal but it is a factor if actually her weight had gone up then you know it was it was it was a little bit higher towards the end but but again that weight really is not a symptom either even under the criteria that humana was supplying the you know which we don't think are really appropriate but even assuming those are the right criteria  is not shouldn't be one of the factors and that really didn't have to do with that i mean her eating disorder involved you know over exercising the kind of eating disorder she has has symptoms of both bullying me and anorexia so you know there's sort of a variety of very destructive behaviors but it's not like anorexia where it's really about weight so that when that factor i have to say was irrelevant i don't think  progress on that front i mean we have we have talked and yes but you described her what else are you looking for you're looking for readmission on i'm just not sure where you wore at this point and this client's life exact amount it's over one hundred thousand and four the into the one hundred and forty dollars and it's a little bit debatable too because humana usually pays a little bit less than the sort of off the rack price so there's always some negotiation ations about the exact amount but it's are additional fees that we believe you know we're we'd be entitle to but regardless of whether you overturn it you know aristos section five of two she we believe we're entitled to attorneys fees because about what it was and how it alternately benefited your client yes i mean it was groundbreaking in that it overturned a precedent that was decades old pierre and  you know we think it was obviously the correct decision and brought the th circuit in line with with the other circuits on on this issue of standard of review of that shriek out to the benefit of your client miscues well sta highly sought by insurance companies and de novo is obviously highly sought by by claimants it benefited her in that we got a room and you know we were we were at the end of the road road we got to remain on to the district court for a nd look we think the district court got it wrong and should've is particularly underage and over a standard of review awarded reverse the denial of benefits and awarded benefits to area and  you know that is enough to constitute some success under the heart st as reliance standard decision from the supreme court which expressly rejected that you have to be a prevailing  party and succeed on a claim for benefits in order to get attorney's fees as a french all standard review on the attorney speak question and so are you suggesting that although judge rosenthal stated the correct legal standard she did apply it you know it would be deferential standard of review if he's if he got past sort of the heart and malice us but i would say that i don't think the prevailing party standard of review intitled to deferential review in that it's sort of a legal question you know more than that that i mean ok so abuse of discretion does encompass that when you make an error of law and that's an abuse of discretion on the other hand if you say well waiting everything i don't really find that you succeeded on the merits somewhat that's more factual or maybe at least a mixed question so i'm just it's a death it's a deferential standard view and judge rosenthal announced the correct legal standard and then said you didn't have any success on  success on the merits with its success on the merits with being a prevailing party and i think that was fundamentally the problem because you're saying she fired the wrong people stay yes because i do think that that's correct i mean hart i thought i would say probably left it open but you know we've looked at decisions for other circuits and particularly the gross decision from the st circuit where the court in remarkably some success on the merits regardless of and re mandating back to the to the lower court in the administrator for further look at it is is is some success on the merits regardless of whether the benefits are ultimately obtained and so we think that's exactly the same situation here that court the gross court said that increased the likelihood of getting a favorable determination it was more than a minor procedural victory like like a victory on a discovery in the ended in a discovery dispute or something like that and it benefited every participant in that circuit and the same could be said here because this new ruling in the area on am is something that's going to apply to you know all plan for participants and beneficiaries in the future in the th circuit so applying that analysis and we think that that analysis is consistent with the history of section five of teach either which was designed to ensure that people could have representation in court even when you know benefit claims were relatively low when you know and and given the fact that the that congress rejected very clearly rejected a prevailing party standard which requires that you went on the merits we think that you know there's got to be yes i mean that's exactly what the st circuit said in the gross case and we think that that's right i mean honestly i think we probably could have applied for attorney's fees at that point you know when when the decision came out i say my time and then we using the mahal a criteria reversed and provided for that treatment the determination was made that partial hospitalization that level of treatment was no longer warranted under the plan he has prevailed in this case both at summary judgment on an abuse of discretion standard and a dyno post standard initially back in two thousand and fifteen we had moved for summary judgment under then existing peer standard but also asked the court in the alternative to rule judicial resources to further remand the case we would agree and we're here asking the court to end this litigation that's taken way too long and remain and nothing new happened and there was nothing additional that changed  what we're looking at really is a snapshot in time as of june of two thousand and thirteen what has driven this case and i think we heard a lot about it in the st during counsel's argument and it's noteworthy that in their brief they say they want more argument because of the attorney's fees issue this unfortunately has been attorney driven litigation fees has been the driving force why we couldn't resolve the case we could see why they needed turning sooner because how on earth could you all be making decisions on the medical propriety of her treatment without reviewing the medical records i just find this appalling that maybe that's what our precedent allows you all to get away with but how can you possibly do that and find that to be a reasonable approach your honor if you know that the doctor who's review he was talking to the provider i had very detailed notes so i'm not sure whether he had the actual medical records at that time but everything in those medical records for that time was included her prior history was included in that analysis or them from even talking about the medical records because they're not in the administrative record and i understand that's our conclusion and that ordinarily makes sense because we don't want to bring in a bunch of experts to redo everything and whatever but the actual on point day to day records that are being kept during the treatment in question absolutely should be part of the administrators record and if they're not because you all having the superior knowledge and wisdom are able to trick someone in hot getting that in the record how can you possibly be accusing them of having too much attorneys they had two little attorney one of your honor i think if there had been a remained to the administrator or a request to supplement the records as to any relevant time period we may be dealing with something totally different but what happened in this case is that they dumped all the medical records after the fact there's stuff from before the relevant dame question and so that it doesn't really go to the issue in the case which is a snapshot in time but they want to do is try to use those records from subsequent that the rest of the time she spent at the facility in utah and suggest that it was an to made the decision when it was made based on what the doctors were telling the evaluators the administrators at the time and then i think that arisa certainly provides the opportunity for a participant or provider to supplement the administrative record in any way they would like to at the time there's also an appellate process that they did go through and nothing was supplemented at the time obviously a receipt is a little bit different than a standard commercial counsel say that she thinks that the amount at stake was one hundred thousand dollars and i'm not aware where that is in the record i don't think that's in the record anywhere that's certainly the st time i became aware that's what they were suggesting under the plane and what they would be due for the benefits correct our calculation or estimate was that this was more of a twenty five dollars to thirty thousand dollars estimate but what we haven't seen is actual proof of what arrangements there are between the facility and the lawyers and and miss the ems family as to what was actually paid or not paid and whether there's any discounts or agreements and cetera but under the plan we're looking at it was a very small amount originally in dispute the attorneys fees requested were large and here we are because we don't think we should be held up to pay a claim that's not warranted based on the potential that we might be liable for  the intensive outpatient would have paid nothing there was no intensive outpatient so my understanding is that humana did not pay but would have paid had she ever failed her self of that treatment at her home in the houston area why wouldn't they pay that because she did get treatment it was so unlike in other words instead of getting class a treatment they thought she should get class b treatment they were not even paying for the class b when she got the class a there's my sense is that because it was submitted and because of the process of how the claims work it was probably submitted by the facility in utah and it didn't qualify for medical necessity into the plan and so it wasn't paid i don't know that there was ever a request that  just pay us whatever the intensive outpatient i mean that's typically what happened i got some feeling in my teeth that the insurance company was too high and so they paid for the low end but the low end feeling would have cost  to do that i don't know that that was ever offered to humana and i don't know that that i don't know why exactly i can't tell you are honored with precision why that happened other than what has been submitted and what has been requested and was full payment from the or through the facility in utah that the partial hospitalization treatment not the the lesser amount that that would likely have been approved it was in the denial letter that you may qualify for that there's been nothing very much submitted on you know directly with her other than obviously the records and the requests for payment but it seems to be a strange request for payment if you don't know what it is how much i mean typically i don't know yet it's been eleven years since i practiced as a lawyer but when i would send or receive demand letters they were foreign amount and typically i would suspect that's be supported by some documentation and that would be part of the record i'm not aware of it being part of the record and certainly as i mentioned no one no lining up or attempt to correlate to what the benefits would have been under intensive outpatient or any other calculation  what is the standard and it's not just some success it's some degree of success on the merits and i think the word on the merits has to mean something and it can't just mean a procedural like the court said in part a purely procedural or tactical victory in this in no way benefited are you going to am i may have altered the standard of what's done in the future in certain cases because there are still cases that are reviewed for abuse of discretion if they're not in your depending what the plan provides for and there's not a discretionary clause band for instance so there was some change in the law but it's not degree of success on the merits i think if you're an attorney's fees ok obviously i think everybody agrees that some degree of success on the merits is something less than prevailing party how could you possibly square that and if you have to win something then you're prevailing party and so how can you how can we have a lesser than prevailing party and still have to be a prevailing party or do you think it means prevailing party in spring court got it wrong no your honor hearts have been very clear it's not prevailing party it's sort of a little bit like the declaratory judgment action in texas practice under chapter thirty seven in the sense that there's no no requirement that any fees be awarded to any party st of all that's what the plain language said and the heart supports that then it's and as this court would review in a district courts award for abuse of discretion and our position obviously is that dead roosevelt did not abuse her discretion in not awarding any fees certainly humana prevailed in this case at every step on the merits we could have sought our attorneys fees but chose not to we certainly don't want to come after a person who a young lady with her talents and stuff for attorney's fees in a case like this and so some degree of success on the merits doesn't just mean a procedural victory or like a reversal of an era lots of tory appeal or something along those lines it has to be merits what's different than for instance gross and gross it was remanded to the plan administrator and the st circuit actually said busy fee should explaining it all also i would note that in the original heart case i think this is interesting to go back firstly start with statutory construction it's purely discretionary then heart is clearly the law and  circuit and some other circuits have gone too far i think is the st they've gone too far in requiring prevailing party so they scaled it back and hard but that didn't mean everything and entitle somebody with modest this modicum of success to obtain attorney's fees and what's telling in heart is that the district judge said if you don't ward benefits to the plaintiff to the claimant then i will enter a judgment against you so while there was no prevailing party at the district court level it was clear that the court had weighed in on the merits and advised the plan administrator to reverse the ruling so that plaintiff it certainly gone much farther in obtaining substantial success on the merits than what we have in this fact pattern and also note that i was surprised to hear some expression about that there's a case that i just recently learned of apparently was about two weeks ago from the th circuit where counsel for the claim in this case also did not prevail on the merits in the th circuit said that flipping the standard of review did not  justify meeting one of the five factors that would apply if fees were to be awarded in that yes or honored said july fifteen two thousand and nineteen opinion it's alexander age versus oxford health insurance other side and know about if they're the lawyers in the case i guess you know about it getting ready for argument we found it and we thought about citing it but it didn't seem relevant to any issue because again it's now well because the issues have been raised now but we thought that the issue would just end it whether they were entitled to any attorney's fees or not this goes more into that robinson factors and into how much right but we're certainly not going to decide that if we were to reverse on attorney's fees it would be well i speak only for musters any other questions from the panel from a policy standpoint we it's not a good idea to and it would certainly part of the statutory construction and good policy for people to be able to afford attorneys and for there to be fee shifting  arrangements to allow people to be represented but that doesn't mean that you turn things on their head and kind of create a system that incentivize does claim is generated just to try to seek attorney's fees the court in the davis case that we cited and has written about that recently and there are other cases where the court has noted that that's a problem and it's not the possibility that somebody might be able to get attorney's fees does not turn something into a blank check or slot machine or a license to turn  as i just have a few points st of all i think that it is her act that there is nothing in the record that shows the exact amount that's two there have been some discussions and there's  disagreement about that so i'm you know i'm not saying it's yes it would necessarily be the amount that we're asking for is for well you should have at least gave the amount that an outpatient intensive outpatient treatment would have cost since you agree that that's appropriate you man agree that's of her job or make that i don't believe we made that argument but we have been fought on those kinds of arguments before and i think even here even though avalon hill's provided that kind of intensive outpatient treatment i think what i'm hearing humana say and i think what they've said previously in the case was that no she wasn't she couldn't get it there you know as it was their area now was getting partial hospitalization treatment but she was actually boarding there because this was a long way from her home of the treatment facilities in logan utah and she lives in texas and you know so her her family was paying the additional amount for her  oard there and you know it i don't believe that humana saying that they would have paid for intensive outpatient treatment at at avalon hills they wanted her to go back home and and they they didn't even approve intensive outpatient they suggested that that might be appropriate that would have been a fight another fight i'm i'm guessing just just one point one more point on the merits and the the lack of the medical records in this case which i too find appalling arista is different than commercial plans you know rissa plans are different thing commercial insurance plans but the supreme court a ministry of record before the for humana and other words go back to them and say y'all need to consider these medical records either the post hoc after the treatment or at least the medical records  at the time of your final ruling well that was part of our battle for a couple of years about trying to get in these additional records and i was in the district court and again i think our law  that is clear that and i don't have any problem with our on buying decision on that right but humana i guess what i'm saying is humana fought us on that humana could have said oh yes of course we made a mistake here you know here let us look at these records that was clear that you know we wanted to get those records and they were very relevant and you know that was certainly not the approach that humana took in this case turning to the oh and just one more point i'm relying on you know what little was there which i don't think at all supports what the reviewing dr setting concluded on the on the attorney's fees issue it's true that in the heart case the the court not the supreme court but the lower courts have weighed in on on the merits there and the supreme court said because you know it the court essentially said if you don't grant the if you don't decide this within thirty days i'm going to grant the benefits and so you know the supreme court said that was enough and that you know if that was more than half more than some success on the merits and in heart but in gross the  courts did not get into the merits at all that the court of appeals the st circuit simply said that the standard of review was wrong it was sending it back for a new look under the c standard of review and over a standard of review and said you know it doesn't matter you know that a benefits haven't been awarded that's a prevailing party standard it's enough that we have reversed an old precedent and that's that's enough of a success on the merits on the standard of review so it's really hard to see how gross is distinguishable from this case the alexander age case which which my opposing counsel  referred to it it it's true that fees were deny there and we asked for them even though we didn't you know prevail on the merits but you know i have to say it's not nearly as analogous as the gross of out of nowhere but i'm sorry thank you so much appreciate both sides arguments and the cases now under submission