contract with respect to providers only and the reason for it is because when it comes to other people third party because third party creditors strangers the contract will actual value no no purpose being there in first place if you so cause it makes sense when it comes to the providers of the very services the contracts exist to reimburse they make no sense if this very clause says exception a the in the area welfare benefit does correct and the general rule of law in our country is that assignments are favored in fact the free market argument is really on our side free market rights people to be able to freely decide their property but there's a departure from that as a writer there's a rise in the pension side that would be good policy reasons for and generally speaking if we figure assignments end up to parties that are not the parties that actually are affected by the time negotiate an with regard to health care plans it's silent the only way to read it is you can't have x nothing prohibits you from from doing that and you've got six services that wait what that logic leads to why should we go why should we create a sort of split well i don't think the logic actually needs to but that's what something that's what that's what the first circuit says that's what th says so why are they all wrong and logically you are right they're wrong because they did not recognize exactly what this court recognized in north jersey brings time which is  much through this is that what they claim the insurance companies claim to care about networks and think that that is the best way to achieve cost something they opt out of never coverage and then they want to be able to evade any sort of responsibility when the party that is in the best position to challenge their reimbursement from the fossett let's talk about the alternative and the money power of attorney and i because the the document that was perhaps backgrounds but i think they serve to actually different purposes deciding allows me to assign me to step into the shoes of the assad or whereas the power of attorney allows the greg t to simply file suit on their consequences of what we're doing here so what do you think would be in the circumstances i think that would be i think i would be allowed i do i do see that but that i think  think that that is if i had to weigh the equities i would say that it probably should not be allowed for part of the issues in that that i thought about it first i think it does not make sense especially where the interest the patient is to be put above all other interests all other considerations i think in this case both we have some cause and a prohibition of the power of attorney to not up if the patient assigns the right to the provider and the provider says the providers right to reimbursement would be no greater than the patients so if the charge the out of network charge under the policy was appropriately assessed and paid to the patient then the network provider who suing is not going to get any more than that  well yes in this context and the context about a network case is similar to these which have really proliferated in recent years because in this particular context we're not dealing with a situation in which the out of network provider if she can to wasn't the correct name there's been no allegation of that in this case there's been constant references to under payments but there has been nothing in the record nothing proffered that these medicare prescribed medication based fee schedules insurance company and a patient was the four thousand dollars rebuy is not going to get any more and that more than that ensued i say well it shouldn't if we litigate this on the merits but that is certainly the nature of this complaint it's the nature of most out of insurance contract that when it insured chooses to go out of network and what an out of network provider chooses to treat someone who is insured by a carrier with whom he knows he doesn't participate there are substantial cost sharing obligations that go along with that we out of work provider is allowed to balance bill but the rate the plan prescribed weight is still the play and prescribe great but is there some gray area as to actually what what was done and what was involved in other words that the plan says you had a and b and this is just a clean shoulder or whatever and the person says no this was a laceration and you know you put in code five or six instead of five always and it ends fee schedules out of network fee schedules by health insurance carriers derived from some sort of metric the modern advent has been to have those three stead was derived from want to preserve medicare in certain cases and medicare medicare is the world's largest sure it has a very comprehensive system with the rb r v s and there's a prescribed rate for virtually every seeking teco might there be a c p t code for which medicare does not prescribe it for three reasons your honor one because i think the courts inquiry is first of all it's premised on something which i just heard a concession from counts one is not sure we're dealing with the power of attorney now here but we're asking if you have the power of attorney i would posit derives from the underlying right the power of attorney to act on behalf of a principle visa b a a substantive right you have to first look at the right itself and hear it that right is know and transferable as we said in our supplemental brief that was created by the court and i'm sorry if this sounds overly simplistic but as they say sometimes common sense makes for the best law one should not be able to accomplish indirectly by taking for what is all intents and purposes substantively procedurally identical language and that accomplish what one cannot but is specifically prohibited from accomplishing directly is it really your position that they for example a military twenty nine u s c eleven thirty two provides for a right of action to appoint a participant or a beneficiary to clarify rights under a plan to clarify terms of conditions of a point in the event that there's been a denial of adoption or terminations of benefits where that arises and the actual named participant or beneficiary might be overseas might be in color but it i would agree that a power of attorney could allow that person to act for the benefit of that principle all and they'd bonafide  acquitted but what we have here and what we have virtually every other out of network provider lawsuit is not a provider acting as an agent for the benefit of a principle we have a provider suing on in his own name for his own benefit not for the benefit of the principle giving the power of attorney seeking something that is just not described by the police and they get it if then if done properly that is and if the power of attorney reaction i would i would say as i said it by my supplemental brief that in that particular in that particular context were acting for their own what i could for their own benefit unrelated to or not necessarily related to a particular denial of a claim under a policy then all you're doing is taking the power of attorney calling it on the side of the benefit saying here's my iris a beneficiary status and i think i think the analysis is a little bit inconsistent with what this court ruled just two years ago in north jersey greenspun it what i take from the word jersey brainstorm i didn't remember before this court resolved that particular case there was a stark disagreement at the district level in new jersey there was a wide split of authority as to whether or not a directive of the right to payment necessarily trains first to receive beneficiary status for purposes of prosecuting the five zero to claim corporate example where i who someone would say oh that's a good reason you seem to be saying well it is for the provider to correct on the claim that's that's of batteries then but what if someone doesn't have doesn't have dependents or doesn't have someone else to act on their behalf and doesn't want to be in the business of trying to collect one hundred companies so they opt to grant only added technically correct power of attorney to the provider so good that's not something that they need to concern themselves with why can't they do that if the power of attorney i am i in something and that at in fact can be granted and i inability or unwillingness to act on one's own behalf could a specialized power of attorney that conforms with state law directing the attorney in fact to act for the benefit of the principle perhaps yes i would say yes but here when we're dealing with assignment of a right to pursue a claim to pursue an action that really is not related to any particular plain benefit it's simply a claim that we should have been paid for for this particular service i think that's something else entirely when one is asserting derivative beneficiary status under risk as the provider and most of the providers do well if there is a bad power of attorney then it can be for any number of claims right on the half of that individual if that something that is is is a viable right why shouldn't we as requested payment of benefits for the state a service based on policy provision x that's not what we have here that's not what the power of attorney is set up to be and there's never been any claim that there is here we have an out of network provider who is dissatisfied with a fee schedule prescribed by a plan that's not a power of attorney over a specific claim that is insurance companies should have different out of network fee schedules something else entirely and also as is a if i understood you correctly yes in my experience most play against actually do have limited circumstances where one can act for the benefit of another it happens in situations again for pasadena it happens in instances where the plane itself suppose there's a something that's created not by the specific area but it's created by the american medical association and there are most plans there's a member there is there is still a distinction between as evidenced by every other circuit court who has addressed this issue there is a distinction between paying a claim directly to a provider who gives a service in prescribing a corrupt provider right of administrative appeals and a wholesale transfer of ones or is a beneficiar status under wolf i bow to you which is why we have cases like cohen and why we had cases like advanced orthopedics where in the court noted that it was common for planes to do to pay clean was directly but participation in a thank you thank you rights that congress granted to members and purpose offense in their beneficiaries and transfer them to doctors but if the member beneficiary wants to do that why shouldn't it be up to them i mean that that's the whole point is that the individual patients want to do this why should they not be allowed to because their employers have the good she did not to do it and again in most instances the the cost savings here is that if you choose a network provider everyone sings that's good public policy the member he's less the member in this instance a good public policy but if an individual wants to go out of network because the network providers just aren't going to they don't think they're going to get the service that they want and go out of network and realize they're not going to be reimbursed that much that that's fine but why should we are and yes i'm my should be parts i'm an upright but it was there are hundreds of these cases and are you paying money on them in ninety nine point nine percent of them the claim has been paid at at the  network providers to say we don't like your reimbursement but this court is going to say well that's really too bad but we can cut that off again that's why the f b i assigned provision here should be approved every out of network claim results in a lawsuit because the out of network provider once more that's an astronomical cost and not only that you're in it i mean there might be instances where you are improperly denying planes or you're paying less than should be paid and the individual patient isn't going to have the wherewithal to pursue that i mean those are rare the jets the cases where that happens our investigation or experimental when you start injecting people and lawsuits into this process it starts busting a lot of money and it cost a member more than them or here had a two thousand dollars deductible i don't know off the provider collected it r the opposite why is the more natural reading that having prohibited same in one context congress was assuming that the status quo of rampant assignments to providers the have to say so i don't think by saying if you prohibit them any pension cut tax and the purpose of the statute is to protect pensioners as to protect employee benefits that you should also plans were indemnity plans or fee for service they were referred to there are generally two parts hospitalization and major medical and then the plans are not available any longer they're patients benefit tremendously by having robust provider networks where the most providers providers join the networks the conscious less for the member the provider gets directing it and speedy direct payment from the insurance company and the insurance compan administrative costs of administering all these out of network claims where they can be paid pursuant to the benchmark but if every one of them are great majority of them are going to be followed by lawsuits over forty years since congress enacted a recess and yes it was we had different kinds of plans in one thousand nine hundred seventy four than we do now but in two thousand and ten congress did a significant overhaul of our health care system and the m s in relation to medicare every year the approved one insurance companies policy are planned for use on the exchanges the most recent one that that i do not know but it's there's nothing in the act about that and there is a lot in the act about the benefits that have to be provided and if this was a problem you certainly would have expected to have founded in the in the a c a and it's certainly not there this is simply a money grab because it's never you didn't pay i you didn't pay esteem out we wanted the provider here charge over fifty eight thousand dollars for a claim that was paid approximately twenty six hundred dollars which was fifty immediately with him to a same cause isn't the effect the providers will not provide services to folks who can't and to simply pay a fine and don't have to wear with all to do that and why does that bring this back into the realm that's up to every provider every doctor has the ability to decide whether they want to accept medicaid medicare cigna aetna independence blue cross or any of the plans they all they all make those decisions if providers decide not to take insurance that's up that's that's up to them and they must know that in order to get paid they have to get the money from somewhere on the patient to go and collect on behalf of the provider well for example this is the pennsylvania plants in the member was a in new jersey there's a statute that requires out of network providers to be paid directly because they have a good lobbyist so if it was a new jersey plan that the out of network provider would have been paid directly and because it concerns it's one of the regulations of insurance so it's not created by arista but this was a pennsylvania plan and so the number was paid directly and plus the the member had a deductible now that's up to every individual but the broader picture is more important because the costs involved in having to litigate every suit because providers are the employer what benefits scheme porter will provide the employer could have provided no out of network benefits you and some employers to see money don't include out of network benefits then we are put in a situation with appeasing the patient we're also we have to deal with on the one hand during the lawsuit of being sued for unpaid bills and other hand they want to try to get out of that situation that try to sue the insurance companies a multi million insurance company they can't they can't and they don't have an incentive and it's simply unfair it's about and so it's true i don't represent patients i would present providers and with circumstance in this context their interests ally and exactly what needs to happen where i think the public policy is in favor of the position that we are putting forth here today and this court has the authority to use public policy institutions in common here is a contract