labor will speak for five minutes yes playing it properly pled his mental health parity act lang's when the district court dismissed this case under rule twelve b six it sent an impossible and unfair bar for pleading a parity act like the district court ignored the holdings of other just for court judges in the circuit and the prevailing standard for pleading a parity act claim throughout the country play it did everything right to plead his cited to the terms of the plan and his explanations of benefits that supported his allegations he also cited that he asked the planet ministry eight or through its council to identify the physical conditions if any to which it applied the exclusions and the non quantitative treatment limitation or n q t you know analysis that was undertaken in required by law the planet ministry and or refuse to respond nothing the plan violates the parity act by applying militated and not restored to speech therapy exclusions only to mental health conditions he pointed to evidence in the literal terms of the plan billeted of services are defined as a type of mental health services in the plan and not restored to speech therapy exclusion is the only example of habilitated services provided the plainest explanations of benefits over and over and over again show that his diagnosis with autism was the sole reason for the denial i didn't alliss of whether risk restored of denials were triggered every single time by his diagnosis and nd this is consistent with the history of the term facilitator prior to the affordable care act the only time that term appears in case long and in statute is in relationship to services for developmental disabilities like autism it was added by congress to the affordable care act to make sure that services for people with developmental disabilities were not left behind in this massive change of health coverage rd if you go through the plan the only time habilitated and not restored speech therapy is referred to is in relationship to autism services no other diagnosis or condition is a dental find in the plan is triggering the exclusion the defendant's response is two fold st they say well even though we didn't tell you ahead of time we exclude not restored of services for medical and surgical conditions like for a cleft palate that is the disputed question of fact their statement in a brief cannot be the basis for just missing a case at the pleading stage nd defendants argue that the claims were not clad with enough specificity because the plaintiff did not allege the requirements and standards applied to the plan to medical and surgical benefits nor how those requirements or standards differed well st of all they're wrong we pled that there was this sir the exclusion is never applied to medical and surgical services since explicitly on the basis of the complaint and we showed that we asked for this very information this exact information from the plant pretty litigation that is the entity out disclosure requests we asked for but they refused to provide they cannot argue that they cannot different but overlapping remedies since the department of labor is going to address that it would be argument not bless your honour's have questions on that i'm going to go ahead t does not require a monetary loss executive director yes your honor that's exactly right that's exactly right and that other circuits have found that it's very typically what happens in the th circuit when we bring these kind of claims arista provisions at this early stage of the litigation we want to make sure that all of the remedies that are available to plainest are available at the end of the case finally in terms of the risk sanctions since we did a supplemental briefing on that i'm going to let that top for us on this issue but there's one point i want to raise at this point the court should consider if it raytheon has not done the end q t l analysis and completed it correctly if they have done that i mean why won't they disclose it to us the fact that everything on continues ringback to refuse to disclose this information even after all of this litigation after that they have ignored the required and you t l analysis were under law and that in application this exclusion is only applied to mental health conditions we've asked repeatedly what are those physical conditions that they provided us is we intend on february th day after the new law takes effect just another letter once again asking for these disclosures we'll see what they say but in the supplemental briefing they indicated that they're not going to give us anything further if they don't i think that will be evidence in this case as to that that it depended simply never did it require an analysis that  all right thank you m want to lay out at the outset what we think are the key facts and issues that warrant that departs participation the key facts are that here the beneficiary was denied plan that's pursuant to exclusion that alleges replied violation aristos party protections his plan also denied of access to information to which he was entitled under department regulations about the factors cutter like the plans application exclusions information that would have allowed him to better understand and better articulate his parody concerts said parkins here today because it's our view that the district court's approach to these allegations the plants violation of its disclosure obligations and determining whether the plaintiff adequately played a parity act is problematic and we think this problem is directly follows from the failure to construe this as benefits going so i'll provides a cause of action to recover benefits  that's what the plaintiff your six plaintiffs alleges that there are plant terms that is the exclusions issue here which violate a rosette it's those plants or if so which the plant relies to deny benefits and so the question is does the court need to take those arguably illegal plant terms to account considering the benefits we know that those if they really are illegal if they really do violated those terms need to be disregarded we know that because of contractor similarly in signal versus mara the supreme court noted that while you can't bring a claim to change plan to to the practical problem to about the failure to account for the disclosure obligations a recent requires the claimants are entitled to a full and fair review of their benefits claims  which includes access to information necessary to take out your entitlement ok it's particularly important in the context of a parity act like which is inherently compared it requires an understanding of the factors that underl application of a treatment limitation on a category by category basis for example what's the purpose of what evidence does the play consider determining whether the limitation should apply to a particular plant benefit of rails a category procedural question your position on whether the request for information for disclosure was made to the right party claims that i guess it went to a claims administrator instead of the plan regulation the obligation of disclosures plan administrator but rather on the plan itself and here it just not seem there's any dispute that the plant received a request for the nation and therefore had an obligation to provide it as part of its its obligations  that the play it was and she took the request for information the dispute as well are where any of those parties acting as a quote plan administrator that's my understanding yeah so going back to the process that you were describing to us i mean their response is they don't cover anything ability to period whether it's for is a cold or anything i mean is it  either the congress or the department said exactly how that had to happen the department issued guidance that said well one thing you have to do is you have to you can't do it the street limitations for discriminatory certainly can't impose it for an arbitrary reason but there are lots of reasons you can't impose for example are you worried that a particular benefit is subject to fraud or are you worried that a particular benefit that the professionals who provide these services are properly credential and that you identify that the factor that is driving the purpose of the limitation that you look at the evidence that you look at that by which you determine whether it's going to be applied in parity so whatever the sources are that you know you figure out you document hopefully or you have some reason some basis to show someone later on here's how we make sure that we were applying was paired to date the information that has been that people with physical ailments may nat impaired he would say that you need to have a reason why you're not covering it so it's not an apples to apples comparison necessarily i think that's right chops because it doesn't necessarily mean there might be this might be out of thirty i mean there might have but they don't do it now so say well but you know when you weigh everything we have a good reason for doing this but we just we're not there yet and i guess does it take to allege a plausible as applied parity act violation and rather than wrestle with that now it might make more sense to we certainly say reversal the five which we were the issue because as as we speech therapy in the ability of services and what the the parity act asks us to do is to look at what they call litigate surgical conditions and treatment limitations i'm sorry to compare to see whether or not the the action was taken limitation and in this case for speech therapy that services for not resort to speech therapy is a parity with other actions taken on the medical surgical side in other words the two categories of services that the health plans can address can identify and if the health plan decides not to provide any mental health services that is acceptable but once the the plan decides to provide some they have to do it after parity and that have responded mr mystical feels explanation that you're looking at it incorrectly where our response is that we're not looking at it incorrectly because what we should be looking at and what we are looking at is a comparison of the speech therapy for and not resort of purposes versus to with mental health issues i have unique signs of health problems that you can't make that kind of comparison that's how i understood explanations to be at the  standards that are applied to the plan as a whole and this plan as a whole says we'll give you speech therapy but only if it's restorative if you're out in an accident and you get hurt and you have to learn how to speak again because your mouth was damaged then we will pay if it's something that originates in your birth so to speak so there is not going to restore anything there's no ability to speak that you had in any one time then the plan doesn't ok and so if you have a congenital heart condition it only surfaces years later at the transitions into a condition that is obvious there's been some detriment to the person's health and therefore the treatment would be such as to bring that person's health back to the position there was before the symptoms displayed so that would be covered and the same thing with the built of services but what isn't covered is the situation where the person wants to exceed their capabilities that they've had at any time during their life and it's that difference that's easy to compare here this is a comparison statute the whole purpose of the satchel was to as the civilians case is to eliminate discrimination in the handling of health care better health care plans and benefits and if we see here because a simple is one exclusion that applies for both people with medical services surgical conditions in people with mental health situations and on both of those tests is exactly the same and the plan benefits are exactly the same if it's non restored as there are no this is the reimbursement for the speech therapy if it's we sort of there is both on the mental health side and on the medical surgical side and that the parity act and that's why we say that this no need to send it back down that's why the judge stearns allowed the motion to dismiss because in this instance it's it's very simple comparison and nothing more as is necessary i thought i understood the counsel for the labor department to disagree with that and to at least make the suggestion if he didn't argue this forcefully apples comparison and that he's suggesting that you have to do in more nuanced parity analysis he may not have argued it quite that way but assuming that he did for a nd what's your response to that it seems to me that you're saying this is an easy case because you always do an apples to apples and we've had a suggestion made the fets not how the law should be working  you are correct you are in that i am saying this is an easy case because of an apples to apples comparison but to take your question i'd characterize what you've asked and what you suggest could and that it could hit harder on some individuals than in mine on others but the regulations specifically say that disparate impact should not be considered  posit makes sense in one sense that's not what the water is in the regs have actually said no don't don't consider disparate impact so there's not there's not a time to be made as to whether or not  speech therapy should be an appropriate treatment for certain people or not it's simply whether or not under a health plan terminating who should pay there is carroty between what from people who have unique health situations i thought i thought the parity act was was the purpose of the parity act was to correct that now the worse we historically health plans weren't covering such things as substance abuse and mental health treatment and so those those health problems those health concerns if you unique characteristics yes you could you could set up a system where it looks neutral on its face but in fact it would specifically exclude coverage only to this category of individuals and this is not a statute that is designed to find the best possible treatment or the employees of the of the company that is making th is some what the let me read to you the standard for non quantitative treatment limitation so this is when you have a benefit and you want to put some limitation on it say for example treatment limits and that's where the the speech therapy comes up because in the speech therapy it's the limitation is what i've got to pay at all if it's not for  it's not making a medical judgment as to what is the best treatment for somebody or it's not providing any rights to get certain treatment and unless of course there's an issue as to whether or not this is a medical necessity for that is a requirement for all all of these things we're talking about but that medical judgment is an eight it's it's whether or not the the benefits apply and treated with less concern that and the other one that's not what it what it is it's just whether or not there's parity between those two let me ask you order to determine that get sort of as a matter of course the materials that are prepared by the employee those materials go to are made available to the department of labor if requested the new statute doesn't i don't believe require that they be turned over t counts without prejudice the plaintiff decided not to follow judge stern's implied invitation to change the language in the complaint on those two counts so we have the cases reach just end in the in the trial court and because the statute has been changed forward looking it doesn't have any retroactive a fact then i don't think the case should go back i think it should elations which you yourself you were arguing in your brief we should ignore because they weren't reflect where they were properly reflective of what the law plan to provide materials loose of the palm of labor a fast and also in discovery if there's a lawsuit they'd be have to be turned on as well but  outpatient health services are compared to outpatient medical and surgical services not not restored to speech therapy and to not restored of speech therapy on each side and the purpose behind this makes sense  it's designed to prevent my exclusion to just one or maybe a handful of physical condition when that service predominately impacts people with mental health for instance the parity act wanted congress and the department of labor wanted to make sure that a claim couldn't say well we're going to exclude all psychiatric treatment because we're going to exclude psychiatric treatment for mental that you see coverage for treatment that would be considered non restored if physical conditions and you know we pointed to one shot but you know there's plenty more we will find out that they treat terminal cancer or they treat pain conditions where they're not being restored to a preexisting level and so the and are not properly thank you chief justice howard you asked about well this issue about who the letters got sent to briefing that they directed us multiple times to send the stuff i did health care well so then we sent the letter but we copied rate beyond and mr bull's counsel on that letter and so this new disclosures but it's clear that raytheon either haven't done the comparative analysis under doesn't apply this exclusion of physical condition despite its representations and breaching or that they're going to refuse again and so we ask that you consider the remain a conclusion that claims that while been adequately  this concludes argument in this case attorney hamburger attorney career line attorney kavanagh you should disconnect from the hearing at this