good morning mates please the court my name's drew again don't represent the plaintiff alan jason springer like to reserve three minutes for rebuttal and i'll be sharing time with the department of labor today part of labor's going to address standing i'm going to address the standard of review and the to the plan or its minister to construe the terms of the plan itself and this court really need look no further than its university hospitals versus emerson electric's case and compare the language of the plan in that case to the one in this case the emerson electrics plan gave explicit discretionary authority to the administrator to construe and interpret and create rules for interpretation of the provisions in that plan there is nothing like that here the plan here does what virtually every arista plan does it establishes an administrator and it gives that administrator authority to make determinations for benefits using an administrative appeals process if that were acute in this case because the plan operates like many do under a structural conflict of interest where it's both the administrator and the one paying the benefits and in turn now into the merits there's no questions on the standard emergency involved at all the father was given the baby transported to the city where he lives for his convenience but the he was the w having the child transported to a medical facility for murders and medical care the baby soon was being cared for adequately medically where he was i'm just wondering even answers the first is what does the plan language provide for coverage and the plan here provides that one hundred percent of the air ambulance charges will be covered the requirement is not that it be an emergency transport that is not what the plan provides it does not require it be an emergency transport it only requires like many other medical services that it be medically necessary and in this case there is no dispute that but there was no need for any urgent care the baby was being relocated for the father's convenience he was being adequately he wasn't being transported to a medical facilit any emergency or or you in urgent care really and i'm just just just having having trouble seeing where this fits within the contract language so i think there is a human element here which is it would be difficult absent a medical degree for me to describe how critically ill this child wants and it was a team of experts what i think you're missing judge clay's point what he's asking is we we understand an empathize with his situation at the time what we're trying to figure out is the way we view emergency or the way i view emergency rooms say is the reason you were transporting him is to get him to a medical facility for an emergency like an ambulance just think of an ambulance and ambulances are going to pick me up and transport me to another city they're going to transport me to a medical facility right because of an emergent need here the reason he was being transported was because his dad was being transferred so how does that fit within the just the ordinary understanding of emergency so the plan does not require that the transport be an emergency actually the plan does provide for convenience that anyone outside of that perimeter racial it is but that's a provision that would provide coverage in this case so why rely on the emergency provisions we have an emergency provision in any stage of this case it was not the original claim for coverage it was not the administrative claim for coverage it was not in the district court complaint and it's not in this appeal or have never relied on emergency it was the district in our as the district courts error to impose an emergency requirement when the only requirement in the plan is that it was medically necessary the word used in the plan is required was the transport required which we view as meaning medically necessary meaning was an air ambulance needed to effect this transfer or could the transfer have been done using ordinary ground transportation in our view there's no dispute that it was medically necessary the district court read into the word f one of the provisions of the decision that has to do with whether the expense could be incurred during the period of time after which  progress but hasn't hasn't been completed and so the person can subsequently ask for the coverage and receive it but and and all that seems to also contemplate that it be an emergency situation which is not what this was and so i'm i'm just i'm just having a hard time determining whether whether there's any in any coverage at all here been a covered service that the plan has never disputed that one hundred percent of variability is unapplicable coverage in this case what the defense is is that there was a failure to obtain pre certified cation for what is indisput a covered service so i don't courage the court to examine the plan again if there is some confusion about whether this would be a covered service it indisputably is a covered service the denial of benefits was only a result of not having received priest certification for that service the plans your position is that this was an emergency transport and the district court by characterizing it as such was an error is that what you're saying  the district court rewrote the plan to include a requirement that any transport which did not receive pre certified cation during this period in which pre certified cation could not be obtained because the gentleman was not in the system yet so are you're seeking coverage under the same provisions that the district court referred to which i think i believe that the district court was referring to another provision in the contract that discusses emergency transports in an attempt to a little more subtle which is pretty certain occasions require the plan says that but there are periods during which preset of occasion is impossible for them after that so is required under what provision the emergency transportation provision or some other under all provision if it took a week or two weeks the completion of the processing of his application had his claim approved and moved the child then but that's not what he did he took it upon himself to have the child transported at the time he did when there was no immediate need for that i mean what i would say is the immediate need was keeping the family together so that the child did not pass away while separated from his father issues difficult has to be balanced so it went well so there's nothing in the in the administrative record which says that the move was inappropriate or that it should not have been undertaken the question is one of tiny where the plans position is because there was no pre certified cation obtained they shouldn't have to cover it unless it's an emergency situation and what the plan says is if the move is medically necessary not emergency if it's a medically necessary transportation which this wise no one disputes that the only way to transport the child was by way of air ambulance no it was medically necessary if that's the way he was going to be transported but transporting him with stuff wasn't medically necessary letter from the physician also says that the transfer is not for the convenience of the patient but i guess your argument is that the transfer at least in part is for the convenience of parents on if you really want to use the word convenience but for the benefit of the family unit or something to that effect yeah i mean i think there's obviously we're dealing with plain language on the one hand very cold and sterile on the other we're telling with a very difficult human situation and in equity i think those two things do play into each other that you can't oh i've just sure i understand it so i think i get everything you're arguing the back and if so i want to just ask you quickly about that so as i understand it you were trotting you would have gotten pretty certification in your argument if he wasn't in this enroll me period where you could and your argument is a it's covered one hundred percent b it's covered for non emergency situations and see all we have to do is get preset of occasion but we couldn't but the plan says we'll handle it on the back that went on the back and does that mean during this and rolling period basically anything you do write priesthood of cation to anything that would be subject to pre set occasion and we'll pay you on the back that there's that makes sense can you just answer my contest i think there are because it i think there's a an interim fear that during this twelve day or thirty day period we're going to run out and get a full body scan because some doctor said well you know that might be medically necessary so there are a lot of people would love the product so i think there are maybe two restraints the first is that it does have to be medically necessary ok so you can't go out and get a bunch of elective procedures done during this period the second is that the charges have to in the end be reasonable and they're going to be adjusted according to the contracts that the plan has entered with various medical providers the and their argument is ten percent is not reasonable right so the usual and customary i think there's a couple of elements the first is the don't have because your time's up now i understand your argument ok rest of this i think you answered my question about the controls like for lack of a better word ok my second question is just a real simple i know your court's going to address standing but why didn't you perfect the assignment after because i think you'll  the one who knows this why didn't you protect assignment after the first one didn't work so i won't be the one who knows that ok it was all handled prior to any litigation the assignment i think it was just between the medical provider and the patient and you know the morning your honors may please the court my name is christine hon representing the secretary of labor appearing as curia in this case i'll be presenting on the issue of standing that dr springer has constitutional standing under article three to suit a plan for his claim of denied benefits because his claim confers a personal concrete stake in this case which constitutes an injury in fact i have two points i'd like to make today first dr springer claim is based on his contractual right to plan benefits which constitutes a concrete injury and second the district court's opinion contradicts that forgo the bill is there any indication they've demanded opinions that state that a bill is not necessary for a planned participant to have standing but in all those cases it was different i mean each of those is distinguishable on their facts at least when i wrote them which now seems to be forever ago in most instances like a breach of contract the congress has stated that the purpose the principal function of is to protect contract defined benefits and this was a contract plan correct it was a plan that he had contracted to with the plan because under the plan document there is a cause us says that one hundred percent of the air ambulance services will be covered and dr springer submitted this claim went through the appeals process and it was denied and now he's seeking traditional review of the claim or tempted to be as it was attempted to be assigned but the district or find that there was no assignment and there was no appeal of that issue and therefore whether there was an assignment is not an ask you what happened what your opinion of that was i was to try to find out factually what what happened in terms of the the attempt to make the failure to do so but i'm getting from  judge to your point there are two components of the transportation provisions the first is an emergency transport to an emergency room and i believe the analogy or example that you gave a spot on but what they're saying is this is an  heart misunderstood we aren't seeking it under the emergency provisions i agree the second component of it is however is that if a transportation becomes necessary if you are outside the state or outside the venue of the cleveland clinic foundation you have to approach the cleveland clinic and get preauthorization for their transportation that kicks into the medical necessity review under the terms of the plan and there is a medical department under the employee health plan that in evaluating medical necessity looks not only at the medical necessity for transport but also how the transport is going to be affected under the plan and they immobilize a team literally to address how this is going to be accomplished in accomplished through its tier one providers which include air transportation as well as other forms of transportation so the preauthorization requirement really kicks into the medical necessity component and how the medical department of the health care plan does ineffectual it's the transfer so you go in you ask them for the transportation and to judge clay's points earlier there was no medical need for transportation at this time the child was stable everything was fine and they could have gone through all of the processes and worked with the cleaning clinics employee health plan and their medical department to effectuate a transfer if it was medically to go through the pre certified cation because there was no imminent medical necessity for the transfer during that short timeframe when the application of this disclaim would have been pending approval absolutely correct and if you look actually at the medical necessity provisions of the plan they tell you to call them call the medical department they provide a number in the plan that you can work with the medical coverage of or requested until after the child was moved is that right that is correct and it's a little bit different i think this is going to answer a question that you raised judge play earlier about the assignment there an assignment made in this case by the springers to get on this part of the administrative record in this case angel jet really kind of took over everything as this progressed administrative leave through the process and there's no evidence of any involvement by the spinners whatsoever no had the had there been on true medical emergency he could have moved the child for that reason without seeking prior approval but yes not the situation we have here that's correct that's correct so to answer your question there was an assignment what happened was angel judge instituted the first action based upon that assignment made representations through out the administrative proceedings that they were the agent of the springers based upon the assignment when it got to the district court the district court found that as applied to the cleveland clinic splay and the springers did not assign any rights to that plan the district court did not this claim have been covered on the plane i think the plan answered that in the letter that they wrote as the final step of the appeal process and it was the health care plan advisory letter and what they told angel jett at the time and  by virtue of angel is look had you followed the plan procedures and done what you were supposed to do under the plan in other words get pre authorization through the medical department of the health plan you agree couldn't get pre authorization during the enrollment period well there's upwards of a fifteen day gap that occurs when you sign in and before you become part of the system if you look at the plan actually but it and it also says they'll pay on the back was look if you had followed all of the steps and all of the procedures that the plan requires to get pre authorization in approval by the medical department angel jet would not have done the transportation anyways because clinically foundation has a tier one provider but they have an arrangement with that does air transportation when it is approved by the plan and that amount would have been roughly the amount that actually got paid out without enough of the three hundred forty thousand dollars what the is while they felt there was no obligation for lack of preauthorization to make any payment whatsoever in an effort to try and be fair to its plan participants in its employees it looked at its history of air transportation and how this relatively compared to it and the highest they had ever paid not believe if i remember correctly it was a flight from auburn dobby to cleveland was roughly half the price of blood they were being charged for a flight from utah that inquired of the plan as to whether dr springer was covered dr berger and his family and at that point the plants that we really can't tell you right now because it's then process and you know what's going to take th fifteen day period to expire or something like that when i read about that when you mistreated record reflects the enrollment forms are signed on july first telephone calls are made to determine whether or not he was eligible under the plan and there's a further record in there where they interviewed the actual customer service representative who took the call and that person indicated there was never any discussion about request for pre authorization or that it was just you see an eligible participant in the plan  there and do we know who authorized the actual transported that angel jet at that point except that they were going to make the transport a do we know whether dr spring if you look at exhibit twenty seven in the administrative record there is a record of a telephone conversation between the clinic clinic health care plan and the representative manger jet where they asked point blank who authorized this and the answer given by angel jett in the record is the parents know looking at the standard of review if you look at the district court's opinion the district court looked at this both under the arbitrary and capricious standard of review as well as the noble standard of review and said  standard i'm coming to the same conclusion here based upon the clear language of the plan and i go back just absolutely in the district court so one of their complaints is the district court analyzed the wrong section of the plan in making this determination i disagree wholeheartedly the district court looked at the preauthorization component of the plan and said there is absolutely zero evidence in this record that suggests pre authorization was ever saw out there is a specific exclusion for any type of medical care that requires pre authorization and does not get it but they their complain is lucky was in the enrollment period so they couldn't get pre authorization so everything relies on the backend probation well if you actually look at the plan there is a provision in the plan that specifically allows the plan to go back retroactively and make adjustments to claims being made in specifically advised this plan participants that they may have financial responsibility as a result of this kind of look back but i think candidly if you look at the overall and overarching intent of the plan is if there is kind of medical procedures that have been ongoing or things like that they're probably not going to cooperate or squabble over those in the fifteen day period if you have something that is really not necessary and can certainly wait until you are properly you know made a part of the plan through the documentation that would allowed the priest certification process to proceed and i think the point of the district court was there was no evidence that a delay or waiting implicated care or treatment in any respect that everything was stable the move did not need to happen at that time and they had every opportunity after that to seek pre authorization so they jumped the gun and i believe the court characterized it aptly is at times it's easier to seek forgiveness rather than permission which is precisely what happened in this case let me address standing very briefly and again judge i think to your point where you were you saw some distinguishing features from a number of the other cases that were relied on i think one of the telling examples if you look at the spin decks  they made the assignment there's a specific acknowledgment by the plan participants that they remain on the hook for the entirety of the medical bill so they have skin in the game unlike those cases there is no skin in the game there is no evidence in the record that dr springer owes a nickel regarding the coverage nothing is the evidence that he will never oh a nickel this the only reference that the district court made in analyzing it was that eggs are from the reply brief that was filed below that was suggestive that there would not be seeking reimbursement from the sprayers on the basis of the assignment made and again judge playback to your point the court didn't determine the relative rights and responsibilities per that assignment to between those parties and what that required but there is no evidence in this case that dr springer owes a nickel and that's why we raise the issue of whether there is genuinely any injury in fact so let me ask you a different question do you agree that a wrestler should be treated like a contract isn't that what the courts traditionally do historically it really emanates from the law of trusts which has a contractual component to it but it's a private right not a public right you know that words you agree with that i do agree with  right yes and no i mean i think that we have a statutorily conferred right here because i really don't know why because here there's a plan that's a contract and so the breach of that contract cetera to be held accountable on one hand as well as to pursue what the legislature has deemed its rights why i hesitate on it being a purely contractually type remedy is the preemptive effect of a risk i mean if you try to make a contract claim it's going to revert back to a risk does that change the nature of the right just because congress pre amps it i mean congress is not conferring a right here the calm the plans and the plan is a contract does that make sense it does but i think the risk that goes a little bit further than than saying we're just going to be an enforcement mechanism for contract rights i think it is a comprehensive scheme to assess relative rights responsibilities and liabilities within the context of  mind i mean it goes it goes a lot broader than you know one iota in applies and i know better than me but i guess there's no cases out there that say it's a public or private right right i'm not aware of any around and i believe the answer to your earlier question about normal damages that are not think they're available at riker's i'm happy to answer any further questions appealing out thank you very much thank you this is pretty simple dr springer was having his son admitted to the cleveland clinic there's a lot of preparation that went into that the idea that this was a surprise transporting the baby shows up then is moved into a room there was a lot of planning that went into this the specific item of the air ambulance transportation their air ambulance the cleveland clinic i mean like you said they're the best medical facility in the world they're not going to run it here for air ambulance why not use their yes i'm a little hesitant to answer because i don't there's anything in the administrative record but my understanding is that dr springer had researched air ambulances he is a physician this was the company that he had been working with for i think about a month prior to the transport being effected you know part of it may simply have been that he was not aware that the clinic offered the inhouse at a lesser cost i don't know i telephone so that was done on two occasions in which angel calls and you know my doctor did i think your doctors would do that we're not typically the ones asking aren't sure is x y or z covered in the first instance a claim form is sent you know so and so circumstances you're going to incur the expense of this magnitude stands the reason you check on your coverage right so that was done on two occasions in which angel calls to try to confirm coverage the next asked whether dr springer was enrolled and the answer was we can't tell you that yet he's just started he's in this paperwork process and period but that's why it makes sense for him to call because it seems like like what i do if i need a doctor i want to find out if my insurance company covers i look in the book i call him how he called they would say look we got this area of human service they're great they're one of the best in the world will handle on that sure that that's what would have happened i think if you call and antares the third party administrator you whoever asks is so and so and roll out whether it's the age of medical provider who does it or the the insure themselves they say well we can't tell you that well can you pre certified an eery influence transport for me or can you give me recommendations on another no i can't tell you that you're not enroll in the plan yet that's why it's impossible you can't get through the door to start asking those questions or having those new probably tell you who prefer provider is i mean most beneficiaries of insurance  but i would just say those are the usual customer charges under the arizona regulatory authority that's over angel and there's no evidence in the record that those charges were beyond what the market place for ariel is the only indication is that the steep discounts that the clinic receives from its own owned company would have been different if i can just say one more thing on standard we're going to do if we were to or from the district court's decision on standing i think we would be inviting a real practical problem which is that medical providers would have to pursue either through collections or enforcement actions all of their insured before the insured get standing to pursue planned benefits not if they're perfect and that's why well that i mean that might create another problem which is now we're asking everyone to assign their claims to medical providers to now be the enforcing plaintiffs in all respects are you going to enforce the money against you and they want their money that works and it worked in the fifty nine than eleventh circuit as you pointed out and i would think there are a lot of cases in which those assignments are not going to occur in occur and so we're going to leave tens of thousands of insured employees really with no recourse you have any cases for the proposition this is a private right i don't but i think i do agree that it is because it's based in contract and a recess simply establishes what that contract must include what its minimum provisions are what disclosures have to be made and then what administrative remedies must be exhausted prior to pursuing that c