bike at high speed he went to the local hospital where the doctor discovered severe internal injuries and ordered that he be flown via air to children's hospital in little rock now the child was insured by blue cross which despite federal and state regulations requiring it to do so does not create a network of air ambulance transportation it has no in network providers so eri back and out of network provider was called to transport the child to children's hospital charge was about forty five thousand dollars and there are good reasons why that number is so high which i'd be happy to talk about but the reasonableness of that figure is not an issue on appeal what is that issue is how blue cross pays for the service requires blue cross to pay at least what medicare would have paid which in this case is about eighty seven hundred dollars and arkansas regulations require that when someone uses an out of network provider because knowing that we're providers available they shouldn't pay any more than they would have paid for an in network provider which in this case would leave the child's family liable for their co payment co insurance and dr bill because in in network provider can't balance a bill that is charged the difference between its regular price and what it got from the insurance company here's what blue cross didn't stat they paid one thousand dollars and it left the family liable for a balance bill of forty four thousand dollars th because the payment was lower than medicare would have paid and it violated arkansas regulations because it left the family liable for more than their co payment co insurance and deductible the overarching question what should the and how much would the they were if they truly weren't in network provider then they would have agreed with the insurance company to accept a negotiated amount and not bill the patient for any more than that so i thought you said you don't negotiate these are set federally and you go by what's that participant to obtain an injunction or other equitable relief to redress the violation of the plan if blue cross is correct is blue cross correct then when it argues that that plan participants in the situation have no remedy at all so you don't represent any plan participants right we do by sign no no i mean other than the assignment i get that issue but there's not a name planned participant in this case right not one right person yet so the the of a plan participants rights be read to be an incomplete assignment of some of it's right we think the answer both of those questions is no under the arkansas deceptive trade practices act there's one question the arkansas insurance commissioner has never approved blue cross is policy of not creating a network in violation of state regulations and federal regulations nor has it ever approved the policy of not paying enough for out of network air air  transportation to ensure that the patients don't pay more than they would have paid had the provider been in network which is also you know which also violates arkansas regulations are those unlawful practices that the insurance commissioner has never approved nevertheless specifically permitted by the insurance commissioner the answer is no why what is the relief that you're seeking i should be can't be that blue cross has to pay the full forty five thousand for an out of network is a it varies by claim for the or for claims under risk we are seeking reformation of the plans to make sure that blue cross paying at least what medicare would have paid because that is what federal law requires and the form of that and and we are not asking this court to actually go and take a read and change the plan you know one one way to do that would actually be for for this court or the district court just say here's what the law requires of you now you are in joint to go change your plan to comport with it for the other claims for claims that are not subject to a risk what we're asking is that blue cross be required to pay enough to air evacuees so that the remaining so for those claims were speaking the difference between the billed charges and the patient's responsibility under their insurance plan one of the one of the main arguments here and really dug into some very old treatises was is reformation even available in a situation like this the answer is yes and and this court said that the risk had his payments cut off because they had expired and he said that that cutoff date had been imposed through an unlawful or an amendment to the plan and what this court said was he seeking reformation of the plan and to seek reformation of a plan because the plan term violated the rest you have to bring that claim under section five zero two a three of a risk which is beyond my knowledge exactly how it works but it has to do with whips occupations of cash balances in a in the risk of pension plan in these cases which are fairly common people say that the the weight of the plan said that their venom fits would be calculated violated specific standards under rissa and in those cases the courts have said that the plans themselves can be reformed to get it that they all say all rights too but does the next limit if so any benefit claims and or payments that you can ask for reformation or to put it differently do you have to specifically say a little more in that to even get going no you you don't for a few reasons they want to is if you just want to rely on preston you can look at the several cases we cited in  which you know people were allowed to bring claims for reformation under five to a three four year for violations of plan assignees even what your closest case i'm sorry because have executed a standard assignment of medical benefits form which among other things assigns to riverview any cause of action against the health insurer or insurers arising from my contractual rights arising out of the procedure provided by rebels use the magic word causes of action thanks for quoting it if it does but there are others that don't know what's the best one that the the shah case out of the district of new  but in the shark case it says i your revocable be assigned to you my medical provider all of my rights and benefits under my insurance contract for payment for services rendered to me i authorize you to file insurance claims on my behalf for services rendered to me and the specifically includes filing arbitration litigation in your name on my behalf against the p i p a carrier healthcare carrier arse as the district court noted our assignment language also includes the right to bring litigation due that the corps can does that does that include the kind of thing that you're requesting now it does and when it was because when you make a benefit claim under risk in your rights are your risk of rights you really don't have any other state law and so your right to bring a suit under section five of two a one for benefits donor the plan for section five zero two a three those are all rights associated with the benefit claim and benefit claim is is different from payment in this in this case because they you know because two different terms are used so it was actually no it's intentional that it's more than just the right to payment it's like to skip to the common law points if i could because i want to make sure that there's no mistake about the differences between the situation here in the n r unjust enrichment claim and situation that arises when just a run of the mill out of network provider wants to get paid its full billed charges there are two main differences one is that in the run of the mill situation let's say you're just an out of network dermatologist and the insurance provider has plenty of dermatologists and network you can choose whether to see let's say you're not in blue cross now you can choose whether to see blue cross patients or not if you do you're you're making the choice that you're going to take what blue cross pays you for those out of network services area that doesn't have a choice airy fact is called to the scene of an accident or to a hospital by a first responder or medical professional and by law has to pick up whoever it regard less of their insurance coverage or lack thereof so they have to you know they have to provide the service they don't get to choose blue cross has an obligation to make these services available through a network and doesn't which is different from the situation where you've got a network and if anybody's going out of network it's because they chose to here they have to make the service available through network providers and they have this extra requirement that doesn't apply to say your out of network dermatologist that if no in network provider is available they have to pay enough to make sure that the insured doesn't pay anymore as a result they've chosen not to do that either so we have a situation like my original example whereby by the way so in that i think what happened in that case was the patient's family agreed to to pay thirteen thousand dollars because that's all they reasonably could pay under the circumstances so they paid more than they had to under the law and the local insurance commissioner to the local exchange regulators to the u s department of labor to the u s department of health and human services all of them regulate the practices that issue in this case none of them have found anything wrong but not issue what is your response to the to the argument that that you're going to sort of open with the there's clear illegality here because the statute is clear you have to at least pay the medicare reimbursement rate and you're only paying one thousand dollars our position is there's no illegality at all that the that first of all their theory rests on these being there are services being deemed essential health benefits which they are not on the wrist a side of things their theory rests on those being emergency services and they're not there ambulance services as opposed to emergency room services their theory rests on a local regulation about provider networks that applies to only one small segment of plans which are the exchange types of plants  individual exchange plans and even there the regulation on provider networks doesn't apply when it's impossible or difficult to set up a provider network here the idea that in reality we're played out of the bad actor but in our it's our view is that the prices that the air evac wants to charge are so high that no network can really be created a reasonable price but that even would still only apply to it's a small segment of the claims which is the exchange claims that the regulation that mr quinn is touted over and over limits on these that we somehow violate some some prohibition on annual limits that only applies first of all to essential health benefits which there ambulance services are not and second of all it doesn't that regulation doesn't apply to treatment limits here that  the provision is balled up in the treatment limit not an annual and annual price and so and arista claims of the court already delved into the language of the assignment and this court rojas case out of the second circuit where the d b healthcare case out of the ninth circuit mr quinn decided a couple of district court cases which i could take issue with but those three circuit cases come closest to the language of this assignment particularly the spine addicts case where rights and benefits of the employers agreed to that's not anything that the language sort of taken in its full context could possibly could possibly cover there's no indication that the employees wanted to give the right to a provider in its own self benefits do under the terms of the plan clarification of rights under the terms of the plant those types of things don't apply when you're trying to rewrite the plan much like in the future breach cases you have to turn to five or to a three to get the relief what about the words in the assignment that say pursue litigation in order to obtain payment that's pretty broad how do you get around that well it's very much like what the language wasn't by the decks where the court said the are you begin with the presumption then and sign it gives only limited rights because the assignee the assign or only knowingly would give away the most limited amounts seemingly the court cases a narrow rule and so when you get to litigation regarding benefits the case law prior to these assignments in fact indicates that the benefits do under the terms of the plan the typical ordinary benefits type of claim that's what in a sign or would understand to be an issue it requires more and i think your honor put it he's put it before do you need a little bit more in order to get to what the air event wants to say and that it does i'm not saying that area of acted could even get there under affect the terms of my plan that would be something that could have been put in the assignment i'm not sure it would be actionable because you'd have to then under federal common law say that and the society with that type of assignment gets fighting gets to you use five o two a three five zero to a three in what i was indicating was that it's not clear the supreme court would say we're going to expand five to say that more than just participants beneficiaries and fiduciaries can sue under five to a three instead we are now an assignments aren't expansive enough to give five to a three relief instead they're only expansive enough to get five zero to a one b relief which this case isn't that that was a claim in the original complaint but they couldn't really pursue it it was not actionable and so they left it out be illegal activity old equity courts and it takes a while in the briefing to spin this out because you have to go through some of the old equitable treatises they would reform a contract for mutual mistake or fraud not when it patrick was supposedly illegal in the side tells the other side here's what the law requires and duped the other side into thinking that that the law is what the one side is saying perhaps that would be a fraud case but here the duping would have to be between two sophisticated actors the employer not that we're not tied up and dispense written about employers and the insurance company and the treatises say that both of them are mistaken as a result the base of the law the court doesn't reform the contract because it would then set up a contract that neither party expected instead it might  d the contract or come up with some other remedy but not reformation and justice ginsburg and her dissent i think in the months and he'll case that all of this is very bizarre very bizarre that we're looking back at the one nine hundred thirty s or earlier to figure out what the relief  that's what arista contemplated according to the majority of course in that opinion it may seem it may seem that equity has only limited remedies and why would you want to transplant those here but that's what the supreme court  the reformation point the only other thing i wanted to point out was that in their reply brief they raised a series of points that we didn't have a chance obviously then to respond to and one was that the usury cases somehow set up some special president well they're special document thirty three below pages twelve to fifteen where we fully explain why the usury cases don't apply in this particular situation i'd like also one other point is they cite the dobs treatise for does not apply to actions or transactions permitted under laws administered by the insurance commissioner and certain other state agencies and federal agencies are said to have specifically permitted if it did as if it didn't in the version governing th low that's a change in the law it's a change in law but thank you but then the arkansas supreme court said that even under the earlier version they were going to adopt the later version as a clarification of the earlier version so specific and now says specifically  d but the language in the original was permitted and but it says permit if it's permitted unless the director of the division here the insurance commission specifically request the attorney general to implement the powers of this chapter so the harbor doesn't give blue cross card lodger absolved of liability entirely and simply leaves to the insurance commissioner the decision with the possibility that the attorney general could enforce and here there was no request at any point by the insurance commissioner to go to the attorney general the safe harbor applies because the amended complaint the allegations chant challenge the policy the policy terms and the rates there's a dispute as to whether their complaint does that among us but the district court didn't find that to be a dispute the district court found it to be found that in fact the complaint in these parts doesn't exactly challenge the terms of the policy and the rates that were presented to the insurance commissioner and approved by the insur ga is the terms of the plan they deceive the subscribers into thinking one thing when something else is actually occurring those are plans that used the word subscribers in arkansas that they have subscribers we have to know deserve a cap subscribers in our s document that was submitted to the insurance commissioner the only other allegation that really comes out of the a t t ailie vermins is that blue cross is getting some unconscionable windfall in its rates by not providing what it leads people to believe it's going to provide namely air ambulance networks and that's a challenge to the rates in other words we're charging a premium that doesn't that is that is creating a windfall because we're not getting what we're explaining the premium is supposed to pay for the net comes a paragraph at one point and say they might have found one church plan claim that is not an insured claim it's a self funded claim but their own complaint would kill that claim because they note that the network access rule under arkansas law applies only to carriers in who are insurers and that comes a paragraph fifty three there amended complaint where they say it doesn't apply in self funded situations it applies only where blue cross active the health carrier and blue cross is in the health carrier in a self in a cell phone a church plane it's only a claims process or because it is the self funded plane that carries the risk it's not insuring that situation so under their own complaint her rifty three their church plan case can't it isn't actionable at all if they didn't fall within that is the reply brief the first time the church affiliated plans have been mentioned in this litigation i don't think it was mentioned anywhere in the district court it's conceivable it was mentioned at some point in the arkansas supreme court but in this report litigation it was it was never mentioned in importantly once we were done in the arkansas supreme court i asked the district judge for further briefing so we could explain why we still win after the arkansas supreme court said no no more briefing they don't want to raise anything else we should be allowed to raise anything else and the district judge that went with them and said no more briefing i have enough in front of me and i have all the briefs plus what was in front of the arkansas supreme court and blue our point of view it's waived its weight but in any event it doesn't fall under the under the network access rule because that the self funded plane as opposed to an insured plane can i go back to something you started at the outset you said that these are not emergency services and that they're they're pretty sick routine ambulance services and so on and so forth assuming that area of act or plan participant disagrees with that or disagrees with your reimbursement and i think you s you remind me what did you say what are the remedies i mean what if if you think that if they think that you should be reimbursed at least at the medicare raids or they think there's something else that you're doing wrong under some federal or state statute do they have a remedy they don't have a backward looking remedy they would only have the remedy going forward because of course the only remedy they would have in the recess situation would be and it would be reformation under eighty three but it but reformation doesn't exist to reform a contract that's a legal instead they would only have a forward looking remedy they could bring a suit on behalf of the plan not necessarily themselves but on behalf of the flame to get forward looking relief in that situation any backward looking relief would be up to the insurance commissioner the department of labor department health and human services of the exchange regulators they can dispute a claim though right if you send them a notice of denial of course of course under the terms of the plan they could dispute that they'd have to argue that the terms of the plan require more than five thousand dollars payment that would be a one claim if they want to say that the plan is illegal the employer set up an illegal plan with the insurance companies help that's not something they can get they can pursue they'd have to they'd have to be backward looking they could pursue it forward looking if they want to backward looking relief they have to go to government regulated but they could they could sue under the terms of the plan that you weren't paying the benefits that you would contract to pay and they could have signed that claim to provide could but and that's why they left it out of the american plate because we went in because under the terms of the plan we were wired to pay five thousand dollars and we did the front the front two pages of the insurance plan note that this doesn't cover everything we cover what we're required to cover that the insurance commissioner says will require to cover federal losses we're required to cover but we can't cover everything and the employers made a balancing of what should be paid and what shouldn't be paid i see my time is almost up and the one last point i want to make is we haven't at all talked about the filed rate doctor which is that the very end of the brief but i wanted to point out that there are a series of arguments that are made in their reply brief again on the f again in our document thirty three below those of pages twenty seven through thirty one where we show why each and every one of these reply arguments should be followed so with that i would say that the district judge got things right and every that he brought up find x and rojas and d p health care because you can look and you can look at the at the assignment language in each of those cases to see how vastly different it is from the one in our  tax if it's the court said in relevant part the assignments provided that the plans would make payments directly just find x for services rendered any such payments would be considered quote payment toward the total charges of professional services rendered this is a direct assignment of my rights and benefits under this policy with court says was in context they are only talking about payments here that's what the very first sentence says so everything that comes after that is just me for services rendered i understand that i'm financially responsible for all charges including those related to physical examinations whether or not paid by insurance again only about payments that's why the court said they didn't you don't get to bring a f hereby authorize my insurance benefits to be paid directly to the physician that was it so in those cases every single one of them payments were the only thing that issue so it's if if you look at our language versus those there's really no comparison if you look at our language versus the shah case and some of the other ones that we have assigned some of the other ones that we've cited in our brief you'll see that ours are much closer to those and i recommend because it has the most thorough and possible discussion of the issue of any of the cases that either party has lied i want to talk about old equity because it seems like he's we've  ignored the idea of constructive fraud that if you put an illegal term in the content a contract that always going back to the hundreds was considered constructive fraud and that's why you cirie was usury is contracts were able to be reformed even though there was no deception involved the person who borrowed knew exactly what they were getting into but they could get it reformed anyway and you know they have and and you know i won't go through all the citations in our brief but we go through every single treatise that blue cross submitted to the district court and show where in that treatise it talks about constructive fraud and it talks about the ability to reform unlawful contracts and i i didn't hear a response at all to the whipsaw cases which apparently if you know if blue cross is right we're all decided incorrectly and the people who and the people in those cases had no remedy should have had at most some sort of forward looking injunctive relief but that's not what happened they were able to you know if the merits supported it they were able to recover back benefits as incidental to the reformation of the contract and the argument that you can in this situation that you can only get forward looking injunctive relief as opposed to payment that results from reforming a contract is the exact argument that judge posner called in the johnson versus mirror case which is cited in our brief which was another one of these said if you are a form the contract then you go back and you recalculate the benefits and pay people what they're owed you don't have some forward looking relief only and and actually when an issue like this came up in the district court and what blue cross with my last forty five seconds i'd i'd like to talk about what i think is a mis characterization of one of our eighty t p a claims first there to eighty t p a claims one is for unconscionable practices that's fraud on behalf of their event and i didn't hear that addressed the other is on behalf of the insureds who have who have been deceived and we clarified from the beginning in our briefing with the district court that that was not based on the terms of the plan that the deceptive conduct was actually the failure to create a network and the failure to follow state law regarding how you pay people when you don't have a network and you can look at the you can look at you know the language in our brief for the rest of the discussion thank you thank you both for your argument case number eighteen to twenty two sixty four is submitted for argument the court will stand in recess for about ten minutes