good morning please the court my name is mike eight percent james jarrett and this action which comes to you from me order a summary judgment from the district court of idaho on cross motions or it was denied for the reasons we stated in the brief i would like to ask the court yesterday afternoon i received a copy of a letter from counsel to the court attaching a exhibit for lack of a better term a char counsel this morning that she received word that the court was going to entertain that and consider it having read it and not knowing whether i'm an admin the opportunity or later on to review it i think it is  in any event it occurs to me that it it fairly well graphically lays out at least in part our position relative to the terms of the plan itself and that is that it's our player in this case where as it might have not granted mr jarrett status that he enjoys it nevertheless does consul can ask you something sir before there there is something somewhat appealing about your argument that he went to crystal i forgot her last name or do your believe and she said on what basis in the record would you indicate that he can rely upon what crystal has to say and that's what tells us that she has any me just say for the purposes of this question yes or let me assume that the effective was it because of what she said he didn't file he is born form on time ok let me just assume that because what correct probably right but he asked crystal and let's say crystal said that and i guess my question is so what what authorities she had to speak for the plan well it's my understanding that her own affidavit indicates that she was the point person invested by emeritus to deal with employees such as jarrett it was her job to do the o she she she did provide him with the with the package she says that mister and she says that she did tell him he was too late and she says that her attitude mister but can one find  plan by which he says that's my problem i understand the plan documents if you have any questions call this eight hundred number yes or i think one may stop the plan from taking a position inconsistent with the position taken by the individual it put in the position to interface with mr jarrett our position relative to ms gorgio is it is relative to the notion that if america somehow prevails the appointed individual i had americans by the plan i believe so yes are on the record from the record it's that and this is in part why americans corp is named as a defendant as well it's in the supplemental excerpts of record that page two fifty one where in america this is america this america assisted living is the name both of the plan and of the employer itself and i frankly can't distinguish and it is the full source of funding and for the life of me i can't distinguish at the front end whether there is functionally including specifically in this case by virtue of an affidavit dealing with health insurance benefits and how one might apply for them if you do get around to looking at illustrative exhibit council has been submitted to you i would point out that is it is deficient in one respect and it's a significant respect down the left hand side of the page we have recitation of some language within the plan specifically excerpts from the craig's list and condition clause definition of the term in roman date and that's it on the right hand side we jump over to received a statutory and regulatory definitions what is missing from this exhibit and what is the is missing from the analysis of this case applied by  merits the defense is that the plan itself provides a definition of the term late enrollee for whatever reason and they certainly were compelled to do so the draft consequences are then he is not to late in rowley well can he be neither at leyton really nor an early enrollee but something in between not for the purposes of whether or not he loses his waiting period and therefore changes his enrollment day in one body may not qualify as a late employee because he didn't sign off affirmatively on something i don't want benefits this or didn't sign up for ten years yes or ten years later signs up  certain draw from that that the enrollment date isn't when he signed up ten years later when he started working for the company if the employer does not require require the employee to do what the employer's plan says it should do there's nothing stopping americans it's only absurdity if america doesn't follow through and make sure that it keeps in its files for those employees who are not getting onto the plan evidence that they're opting out it does seem that it's an ice of bigger hurdle they've they've they've they've assumed for themselves more responsibility than the law requires of them but as the regulations we've cited in the briefing spell how slashed a wrist establishes the most that a  pursue that because it's true that they don't have to have that provision but i i'm not sure that i understand why it is that the failure to be allayed in relly automatically means all the time before someone signs up is defined as a waiting period the waiting period is the period that must pass in the fact that he choose not to sign up for ten years what makes that a waiting that wouldn't seem to think the time passes before somebody affirmatively signs up for the plan that you are not required to wait yes well they certainly could have written a plan that way i have no with the notion that they could have written the plan exactly as you're describing i haven't figured out what's says or they haven't and what is it that says a waiting period include all the time that passes before somebody signs up well that the regulation itself is twenty one i see a far twenty five ninety seven a one dash to the definition of waiting period is the period that must pass before an employer dependent is eligible to enroll in the terms of the group and health help with health insurance plan if that's the definition  that necessarily any time before the enroll meant is a waiting period and that's that's really the question i'm posing and the hypothetical i gave you about the passage of ten years just because someone doesn't qualify as a late unrolling under the definition does that automatically mean all the time that passes is a waiting period is used here i don't understand why that would be the case because the waiting period isn't some time that must pass is time that passed because the employee elected not to sign up yes or right i think i hear what you say both sides to this dispute look at this definition of waiting period and both sides to this dispute look asked the term late enrollee whether one is or is not if one is a leading relly then that during the past before they actually enrolled does not qualify as you're waiting period any longer the difference we have which isn't that stands out in very stark contrast i think if you look if the exhibit council provided yesterday as what america is the definition of late and rollie that would have applied in the absence of the definition in the plan itself and what we look at is the definition of late and rollie but the plan itself put in a lot and i think that's an important point to understand that you want you don't look at what the arrow points to look at the definition in the plan yes or the question i  taking that just isn't there still some question as to whether whether or not someone is falls within the category of late and early as defined by the plan is that necessarily mean that all the passage of time prior to the sign up counts as a waiting period as defined under the plan for purposes of determining the enrollment date which is really the problem we're struggling with yes or and i think it does i don't know it and i have no other way to answer your question but by saying yes well well that would be just looking at it the way people do things that would be a pretty bizarre result for somebody drawing this plan do a plan on it we've got to admit that's pretty strange thing to have planned on the plan is not written the best and maybe we should find out who the drafter was but the plans are not written as well as it could have been en people in this category are treated better than people in the higher categories who don't get a waiting period because waiting period becomes a real benefit as opposed to a downside so isn't that what planet ministries are partly designed for is to construe this kind of stop and say well yeah that it's not it's not a perfect world but here's a week construe the plan means isn't that the point of getting discretion to an industry or because we know it's not a perfect world i don't believe so having drafted the plan the administrators are stuck with the terms of it now granted in hindsight i imagine emeritus would have preferred that the drafter of this plan not put on put the burden on the plan or the or the employer to go out and get this declaration of coverage for their certainly no requirement that they do it but it is nevertheless a requirement that they  it's my comments on that point are directed at the assertion in the briefing that the result that we're arguing for is an absurdity the absurdity being of the employer can solve that problem by requiring the employee when he or she says no thank you i don't want the insurance to simply sign the definition of coverage for me figure i just wait until i get really sick accepted what they think is happening and that's the result he wants when he when he get when he got really really sick he signed up and bingo he gets it right but that's not what happened what he's saying it's not what happened but let's say we we assume yes or scenario or let's make it just a little worse he's at the doctor's office he said dr i'm having these terrible pains in my chest and i can't breathe very well yes or let's just say he was saying that for the moment under your scenario he could certainly go down and then sign up and boom he's home and lifeline right it's there and it's wait until he's really really sick and then he signed up and he's got the insurance no waiting period no nothing as this plan is as this plan is written just  is not absurd and it sounds slightly absurd from the standpoint of what insurance is supposed to be about well only if one assumes that a preexisting condition exclusion is something that must be in every insurance policy course that doesn't have a risk the talks in terms of what limitations but it isn't this policy we know that yes or and we and we know obviously it's going to be in most insurance policies i doubt there are very many insurers even think it's called insurance when you get sick and then you pay your premium and start collecting i doubt that most people even think of that as insurance so pretty clearly that's what this policy is about and you say yeah but they clicked with this one provision and so for his purposes it's not even an insurance policy it's just cool i get very sick i sign up they start paying me i pay them a hundred dollars and they pay me a million dollars that's great but you're saying yes of this plan does but that's not what happened here he was actually insured for ten that since what happened you think that's ok right the way they handled as the as the plan is drafted sir i don't think it does i think the remedy for the employer and that scenario was to fall by him you disappoint him on the one hand and you go back to the drafter in the plan and you say this is unworkable we've got any way a critical mass of employees who are not letting us get them into later only status you can fix it one of two ways but they rather the way they me and please the court my name is katherine bradley and i'm here on behalf of all of the pelleas including the clan administrator who is with us today mary short in the back at the primary issue in this case is plan interpretation there doesn't appear to be much of a dispute at least there wasn't the district court level about the standard of review it's clearly abuse of discretion there is an attempt on appeal to create some sort of conflict i think that fails on the basis of the cases court needed to read this question was yes or no so he is not a light in rolling is a lady rowley within the definition of hip that he is not a lady and really within the definition the plan why do i care about the definition of the plan defines it differently because there is no link in the plan between the definition of enrollment date and lead in rowley the later the issue of lading rollie only comes into play if there is a preexisting condition and we need to determine what the appropriate look forward i would like to hear the answer to the question just fine and just ask you having now pulled it out with with with the answer that he is not and later on me for the  road map how this plan was interpreted and why it is consistent with us on the left side of the chart is the language from the plan that provides us with a look back here in the definition we look back to see whether he has a preexisting condition within the six month period prior to being roman date we've provided at the bottom on the left the definition of an roman date within the plan the first day of coverage or if there is a waiting period the first day of the waiting crystal says to him if we accept his affidavit crystal says to him when he goes to her within the time he can sign up according to your folks sorry your true life because this plan requires you to sign up before the end of the waiting period and not after so you're too late and he says he's a poor guy says ok then i crystal said to him you can't sign up now because you're too late and that's what she said to him if you assume what sounds ambiguous does that mean thirty one days before or thirty one days after i think it means thirty one days after you think so but but if i said i'll see you with ten minutes eight would you expect me ten minutes after eight or ten minutes before eight so the extension is indeed what time would you expect me ten minutes to eight i would expect i don't see true i said i'll see you at ten minutes of eight would you expect me cristal wouldn't bind and stop the plan because it's clear based on the cases that you need to look at the documents that mr jared received i have i'm looking at the docking that's what he was i actually think that there may be an issue with respect to the nine hundred ninety eight benefit summary which i believe is the one you're looking at least one of them says sixty days and now i'm looking at one says thirty one days that's not a role and they both say the same phraseology so with a different period of time well does that make it very clear though that he had to enroll and that if he had questions about enrollment that he needed to contact the emeritus eight hundred number he didn't have a question he came in with his honor that is that is an issue that was not explored in discovery it was not raised below it has been raised on appeal for the first time but it is not an issue that was raised below briefs or decided by the judge and from his higher date to complete a return the forms to me and she followed up with him several times to inquire why he hadn't in ninety days from his higher day that would mean she interpreted to mean the four and so told him and he says when i went to her after the ninety day she said sorry as to what we can't take your form i believe the district court properly applied the abuse of discretion standard determined that the plan administrator is discrimination was reasonable it was consistent with hipaa the players interpretation does lead to an absurd result think happy to answer any other questions