title of the calendar under arrest but this is really a twenty six dollars motion case and the pleading standard unfortunately the complexity of a recess bleeds into this case just a bit and standard but it brings in different elements and i'll explain so heat underlying actions which is not at issue it will be six the contention that the defendants violated the mental health parity laws and other things of that nature that's the direct claim but the ruling by the district court really indirectly violates these parity laws as well as the fordable care act which amended arrests when it was passed in two thousand and ten so the two questions really what is substance used to sort of treatments and mental health benefit treatments became part of the essential health benefits for qualified health plans are required to be a part of health insurance plans going forward and as a result that became quite costly to a lot of these insurance companies  there is a this is a one billion dollars issue present the core of this case that you claim that you were not paid the amount of money that you were entitled your climbing through the the patients that you treated the rights that they had and so the core issue is whether or not you alleged enough facts to support a plausible inference under it ball that here was the amount you were supposed to get and here's the amount that you got explain to me why as you cite you know the case why you're likely innova case in in laying out that plausible inference and so what your statement is absolute correct that is what this case is about the problem lies where plaintiff doesn't actually know the amount it is supposed to receive because that information exists with the defendants through these plan documents does these a risk of playing but that doesn't excuse from having to plead the plausible inference and so the innova case had the same problem but the court there held that there was enough to draw the inference given certain things that were in there so tell me why you've alleged provided in detail and really there's only a handful of services that are provided still like a hospital where it could be hundreds of different codes we're talking about maybe less than ten total with respect to these patients the details of conversations that were had between individuals employed by plaintiffs individuals or agents of the defendants authorizing you know the services benefits making sure that they're insured  that and then there was one of us the plant was produced in the case so the answer to your question is how much more or how much are we supposed to get is something that a i would not be able to answer until i got the plans and be even with the plans i'm not sure i could answer because most of these but the innova plaintiffs and again that the case we rely on they said that you know it would be some formula based on reasonable and customary he would based on the market it probably be about eighty percent i'm getting a lot of an percent on the inference is that i'm entitle my man i don't know exactly how much but it's a lot more than eleven so i've played enough how are you like that did you did you show that kind of a gap that something must be off that it's so far that i must be entitled to more even if i can't tell you the exact formula yet sure and with respecting the patient privacy fidelis in the names individually as a public record i think it was under seal i believe at some point that yes we allege the amount of issue that we were paid and what we were not paid and the difference that which you said you listed for each of those patients the amount you build but in nova what was alleged was what was reasonable in customary for that because your bills may be excessive you need that's why i'm wondering did you bring yourself within an over so to answer whether what's reasonable in customary your honor is is that we've got forty years of history and hospital setting and they still can't quite figure that out and this is just starting in mental health and behavioral health you've got a whole you've got dozens and dozens of cases leading up to the central california and children's hospital in blue cross which i believe was a two thousand and sixteen of those fourteen decisions state court california you've got nothing comparable to that although on the one hand you also have the mental health parity laws that say that these insurance companies have to try eight have to provide the same level of care and benefits to mental health as they do medical surgical how they compare a case of schizophrenia vs not been back to me is a different issue but that's not really woods on  dollars motion so weak to plaintiff alleged everything that could possibly have alleged without the plans and even to have the plan that would have had to say what's reason one customer that's going to be an expert who's going to commit and say this is what's reasonable in question mary for this kind of a procedure to maybe issues of medical necessity and things that nature but without the plans would not only we are to a certain extent flying blind i guess but even with the plans we still would rely upon experts to make that's terminations because it's not so covered and that usually comes in the form of you know a certain percentage of reasonable customary which doesn't really give us an answer as to how much in dollars but these we know that there are some benefits there's no plan documents exchange they're just telephone conversations in the main purpose is to make sure that they're covered by the insurance that's really the gist of it they make it co pay information or deductible information but they're not going to get it for this amount of money and this is what you and if even if they were get it over the phone there was taling to verify at some point based upon some written documents and plan documents and then when you say they failed to fully reimburse say you had a certain amount at the and they reimburse you for another amount so yes you're correct that when it was full charges that were part of the complaint and whether those were too high or too low that's something that's not an issue right now because that would actually be nother thing would be an all underpaid and they were underpaid substantially in some cases and i don't have exact percentages in front of me but some of them were extremely low and some of them are just low and with it let me just clarify this you're you're you are an out of system provider correct that's correct all right so you have no idea what this insurance company that the defendant in this case cigna pays it's  it's in system providers because that's proprietary correct it's from the plans allegedly or proprietary and they won't give you the information they'll let us know maybe that they're covered and they might there's no but they'll give the better i'll give you the numbers ok so that's completely within their purview but they're saying they don't have to give it to you because it's proprietary and you're billing and you are you what you bill you believe is fair and reasonable that's uncontested that's what you believe because that's what you're billing and that's why they always bill right doesn't so you know to know what this plan believes is fair and reasonable you need to look at their records and they won't give to you that is correct or a j and i position is that that information is within and i don't believe these this process never involved voluntarily plans ever voluntarily providing the plan the actual plan documents they'll appeal it they'll get information maybe and if you had done that administrative appeal for these patients you would have learned more about how they calculated the amounts would not necessarily we would learn that when an appeal is done or when an explanation of benefits is provided there's maybe for four or five different denial reasons or or whatever with some medical necessity might be its reason the customary terms might be used we don't know what that is or who are paid at the percentage under the plan but not being able to see the plan document or just a flat out denial but we would not get any of the information that we would need to be able to specifically allege exactly how much money to which we would be entitled so i mean i've had my fair syrian's policies that i've looked at and i'm just wondering whether the exact amount that they would reimburse for each type customary and then out for these services and not give any specific dollar amounts and in any event some plans may have had in that maybe some grandfathered plans may have had specific numbers specific terms of the policy or the plan that you what term city want you to put in there other than we know it's going to reimburse for the usual reasons why you know you have to type in the exact language but we had one morning your honor my name is emily coston and i represent the signal pollies all three of them all refer to them collectively a signal this morning i think i'd like to start with addressing what judge collins raised which is how have they alleged a plausible claim here based on the plan terms that they have specifically alleged in the complaint and those are in the mary out plan so with respect to the one patient who is a patient under the the marry up plan provides a definition of what is reasonable and customary reasonable and customary is not an amount that is in a book off the shelf somewhere it is the defined term in the plan and it is defined in the plan as the lesser of the build em out that the provider charges or the usual and customary amount that cigna determines is allowed based on a variety of factors including this database that they use that  constantly updated that she a graphic region the services rendered and then on top of that that particular plan the marry up plan indicates it might only be fifty percent of that if that specific individual has not met their out of pocket maximum yet so here with respect to the one patient that's alleged in the complaint i think its name is the age new method is alleged that they only received forty percent of what they billed for the services rendered or forty percent is completely consistent with the merry out plan terms the plan terms say they allowed amount if it's lesser than the build him out and even then it might only be fifty percent if that individual has another out of pocket maximum so to your point new method has not alleged a plausible claim here with respect to the one patient that participates in the one plan but i have a way i didn't read your brief as saying that a no vote was distinguish but i would remind the court again here about the relationships between the parties saying that does not have a relationship with a new method it does not have a relationship with any of its out of network providers so there is no incentive for an out of network provider a quote reasonable amount because it could just increase its prices to whatever it wants to charge because it doesn't have an agreement with ignite has no contract it has no relationship it also has no obligation it has no relationship to even take sick patients if an out of network provider like new method she uses to accept a cigna patient that walks in the door then it must understand it is only going to be be reimbursed according to the determination of benefits in the formula for each of those claims there are very specific procedures for administrative exhaustion in the plans and each one of those administrative procedures differs by plan again each one of these plans is individually negotiate contracts between an employer plans sponsor and cigna and there is an administrative process and in that back and forth administrative process the key claimant whether that be the participant or an authorized representative like a lawyer or and or new method if they had the proper authorization to to pursue those appeals in response we get a more fulsome explanation than what is provided on the original explanation of benefits which might include clear plan language that says this is the plan language that says how this is priced it might also include specifics about that individual so i used the patient before there may be something in the plan that says that patient hasn't met their out of pocket  haven't had their deductible that's why the pricing is different and in fact if if in the rd amended complaint new method doesn't a loss illustrations of some specific plaintiffs and says this patient we only receive ten percent this person we only receive forty some of them they receive upwards of fifty or sixty percent and all that does is illustrate that each one of these plans is unique and each one of them depends upon the specific circumstances of the individual and their unique situation but aren't they supposed to argue supposed to reimburse fair and reasonable if they're out of system regardless of the p coverage as long as there is coverage or is supposed to give a fair and reasonable compensation to out of system providers reasonable being what's defined in terms of the plan is fair and reasonable and in this specific instance as they've alleged that term about reasonable and customary i understand there is no there is no got any faster we are miller that is updated all the time and that formula yes what we have to go on here all we have to go on here is what they have alleged in the thirty minute complaint what they have election a rd amended complaint as a representative language and there are a host of reasons why that language is not representative of all of the points at issue but the language that they've cited is there is a term that is defined what is reasonable plus to mary and what they're entitled to receive this isn't some you know amorphous amount in the industry that they can just say we think reasonable and day answer this complaint and just say we pay it we deny all these allegations because we paid the fair and reasonable amount and that's why can't we just answer the complaint like i mean why isn't there enough in the rd amended complaint for you to answer it it's to me they're saying you underpaid us and you're at responses not according to our proprietary information we didn't gender pay you it's not about our proprietary information it's about whether or not they've stated a claim under rissa by making a plausible claim they haven't alleged a plausible claim based on the one patient that does belong in that plan and that's frankly what it's on tumblr all i read it and i thought i mean t now you're just arguing with me but i mean you could just as easily you know with their content but but nothing in the complaints nothing in the complaint says that cigna has to pay out of network providers what they pay there in network and network and saying that ok i'm saying they're saying they got less than you're obligated to pay them they're saying i'm sorry they're saying in their briefing we got paid less than what we build and what i'm saying is that that's not a plausible claim under the terms of the plan that they allege because the terms of the plan they've alleged says that's what the plan says we're going to pay and they're an out of network provider there is no there is no link there there is signifies no obligation to this out of network provider and the sick for the same reason this out of network provider doesn't have an obligation to say that they don't have to take significations if they take significations there are risks that they're not going to be reimbursed they're not at risk that they're not going to be reimbursed anything and that's not without sounding like what you're saying is that cigna will reimburse exactly what it feels like reimbursing network providers signum will reimburse in accordance with the plans and that's exactly what the rd amended complaint alleges door we want to know if they have coverage and the allegations make clear that cigna confirm they're covered but then the only statements that are alleged in the complaint are that cigna confirmed they will pay the usual and customary amount as it is defined in the subject plans and it is their decision at that point in time to accept the cigna patient but they don't have to accept this thing a patient they've also alleged two other alternatives in the complaint that they could have done number one is that they can always require the patients to self pay up front and the patients can come seek reimbursement from cigna the other thing they can do that they've alleged in the complaint is that they can require the patients to sign a form that they'll pay whatever differential based on what cigna pace but what this is coming down to is that cigna doesn't have a contract with this out of network provider it has not agreed to pay them any amount cigna only has an obligation to it plan sponsors and to the participants who participate in those plans and their obligation to that plan is to only pay what their contractually obligated to pay out of the health fund whatever that is for whatever they decide for the out of system provider i mean that's defined in that your hand but the plan nobody knows what the plan is except you and you won't tell anybody about how you came up with what is reasonable and customer is no allegation here that they had that authorization the arista requires only that these plan documents be provided to participants in beneficiaries so that they can understand their rights and obligations under the terms of the plan that they belong to the provider does not is not a party to this this is an agreement between cigna and all of these different employer plans sponsors and each one of these plans is individually negotiated this is proprietary information whether or not mary  offer certain benefits to simply versus samsung offering certain benefits to its employees and what points and what they cover and whether they're fully insured or self insured each one of these plans is is a contract that is proprietary and i'm happy to take any any more questions but i would urge the court i would would like to address judge collins this comment about the innova case that is cited by new method in their opening brief we distinguish the innova case on in our responsive brief and new method has done nothing to distinguish it upon a reply i would also urge the court to take a look at the sanctuary surgical center case which we cited in our brief  at the th circuit sanctuary surgical case affirmed a series of four cases that were filed against cigna blue cross and united similar situation on their failure to allege the plan terms and it went up to the supreme court and the petition for the supreme court raised this very issue if providers don't have access to plan documents how are they supposed to make those allegations without discovery and the supreme court tonight plans we just don't know that and why didn't you invoke the patients rights to get the documents and you have a contractual relationship with them and as a condition as a service you could insist that they  the i still believe that it's the obligation of the cigna of the defendant to actually produce this information for us because they're the ones who they haven't they're on notice of it and so they're the ones who really should be providing it dismiss on the arista claims based upon that similar fact that the planter in the possession of the actual parties of the actual put the defendants but in terms of reasonable customary i mean it's taken almost forty years to try to get there for hospitals and they're not quite there yet it's not so simple and the formulaic response by by counsel isn't really the until we see the plant this is the beginning and then it does become an expert issue it becomes a factual issue but we didn't even