reason in my opinion is that the district court held that the plan is in big us in that an average plan participant would not be alerted to the paragraphs on the lifetime limits that they do summary plan description or both i think it's part of both your honor because it's included in the summary plan description in i believe that there is a notation on the bottom that indicates th a summary of material modification that's correct ok yes different than the s p d that's correct but in this case the summary material modification is included within the booklet of the essays attached right it's attached so so along with this you know that they're included within the book that makes up the s p d and i'm arguing that the way that the summary material modification is drafted makes the d completely ambiguous and unclear as to whether there is a lifetime limit for retirees plan participants and if that's true do we have to get into any question about the recent past dictation  event in that case because the plan violated because the s p d you did not clearly set forth when this person could apply for disability benefits it was retirees and then there's the twenty ten s and m ok and i think you're viewing those as one animal ok but i'm looking at them separately and it might matter because i even even collectively which is the way i think you're speaking of it your position that it was in comprehensible it was vague and right but but the case law that we've got talks about if an exclusion isn't fairly highlighted it can't be enforced well that's why it might and then it's really tough i think i'll give you that to follow around the columns that it says on by the way this doesn't apply this lifting of that restriction doesn't apply to retiree plans yes does that change i don't think so your honor because we look at these plans from the perspective of an average plan participant when an average plan participant picks up there as beaty they they see the first thing they see are the summary material modification are you explain to me why you think it's vague i understand why it's really tough to follow you but going back to i think to judge a person's question about what is the what is the relief here i don't think we have any case law that we have case all the talks about you can't enforce an exclusion if restriction i don't think so because it what it does is it it takes the exclusion which which arguably was clear in two thousand and six in the cap yes the ok which is an exclusion i believe in my opinion  benefits that a player participant is entitled to and it takes an exclusion exclusionary language that is arguably clear it completely  up the two thousand and ten summer material modification makes it completely unclear and these are in one document a single document that the that but they're not you have to read isn't it right i don't need to have you know keep doing it forgive me but there's the summary plan description i think i would have to read that then i don't have to read every one of those annual yes an amazon or you figure what is or isn't there not humility of are they as they go i don't understand your question in order to figure out whether i was covered not i think i have to read the s p d which is with the two thousand and six sort of base document right and then i have to rebut i'm thinking of as i think i referred to these as pocket parts of my lock x it turns out they don't know what that means anymore but every year there's an  annual s and they came out right right and they're not cumulative so wouldn't wouldn't a plan participant have to be the two thousand and six document and whatever was issued in two thousand and seven two thousand and eight and two thousand and ten zero zero zero your honor because the as i said this is it's one booklet i've got it right here yes and you're telling me i wouldn't of the plan participant would have to read each of them to figure this out well i'm just i think the point participant which would be nice would read through them yes and  of material modifications yes right so if the end there are several of those yes but the two thousand and ten summary material modifications as i understand it doesn't include the some of my material modifications that came out the previous year that's true so i'd have to read each one of them yet figure out what ok yes but i don't i don't understand i don't believe that that makes a difference because i think it makes it a lot harder to figure out what your coverage that it does do that that's for sure your honor it does  but back to judge a person's question i think you're asking what what the remedy would be and i don't i don't see how there could be any other remedy other than their forcible from i think as an attack says essentially you would make the exclusion  health plan for purposes of their stash my understanding your honor is that it applies to all group health plans well if it does apply that was my original understanding if it applies to all group health plans but they've also said that i'm not going to apply it to the government plans and other plans just the plight on which they agreed applies to so when twenty nine u s c a eleven eighty five d says to the extent that a provision of this part conflicts with a provision of such party with respect to group health plans the provisions of such part a shall apply if the party says it applies to all group health plans that it conflicts with any requirements and and then other cases some cases have gone on to apply the recent books petitions doctrine i think it can be applied in this case but i do not think it's necessary thank you i will save some time for and we've divided the time between ourselves let me first start out by addressing because i listened very carefully to your questions just christian you obviously have some problems in your mind with the way this was written and i think counsel let me explain why it meets the statutory requirements first of all there's only one reading if you really sit down and with a plain fresh reading there's only one reading that takes into account every symbol and every word in the s m m only one reading and that's the reading by the claims review committee and i can get through that in less than three minutes i don't know that you need to you convince the district court the second time paragraph that you have to agree down one column and that's all the way over to the to the next page that the elimination of lifetime maximum benefits is really intended to be part of that first subheading i recognise your argument that the font is different  ok under mr king's reading there are no following change wait a minute wait a minute it's not a change that's the first problem you've got now this wasn't a change for the retiree plan but your honor that's because there's an asterisk on health reform that says section does not apply to retirees everybody agrees that at least whatever belongs to the health care reform title does not apply to retirees the only question i mean how i can it could be i mean what you're claiming here and then we're supposed to know that something that's a patient a half later on is part of this is health care reform with the astra and if i may your honor that's a great question but in sharp and in a state of shock early this court has said you look at the whole document before saying well it's a page and a half and it's after you look at everything and in a state of shock and scharf they say you have to read the whole section so let's look at  particularly with regard to exclusions and it's not just change reading but it's a reading then that will have it has more information isn't twenty five twenty nine c f r twenty five twenty point one zero two dash two and then what there has to be for s m m because they they understand their partner labor understands that's going to be dealing with a smaller subset of information is under twenty nine c f r twenty five twenty point one zero four b three what judge burrs on talking about the proximity issues we will know that hands down because in p d to get back to just kristen's point earlier is it five twenty eight and five twenty nine direct pages directly next to each other it says here's what you get for retiree plan and here's that big exclusion that you're talking about judge on page five please walk all the way through it you'll see that their argument requires you to either add or subtract words to that document and there is no case and i will stand on that as an absolute there is no case that says when somebody is reading  subtract or adds words that that means that my reading and let's not feel that it's not just that and if you want to really engage with us and have an opportunity it's really tough why would the average time we know from the first paragraph that there are the following changes that are in part of this health care reform paragraph section and we know that the health care reform section does not apply to the retiree plan so then the only question that we're faced with is ok what are the following changes at the trial court the player said well there isn't any because the next sentence doesn't have any changes well that makes no sense because it would read the words following changes right out of the s and m and scharf and a state of shock i say you can't do that so then let's look at what's next the sentence before and after the ones with following changes talk about the an acronym for the health care reform act p p a ca this is really important so watch what happens here you then start to go down and the question the only question is how far down do you go it's not some of the following changes it's the following changes plaintiffs only can create some confusion by changing that to some but not all of the following chain flow but it's not all of them and less you are paying attention to settle differences in type you think it was it wears a stop even without type your honor we win and here's why and if you notice on our brief and appeal we were not relying on type the district court was very interested in that we were focused on the fact that you see following changes and p p a ca watch what happens after the first item grandfather plan status p p a ca then flip to the next page the one after there no that doesn't have no your honor because it says the following changes not some but not all of the following changes so you know because there's no modifier on following changes you're looking for when that list will stop  and i don't think so a because we win on this language but let me point out one other thing the court in more oil this court said to have a violation of these regs there has to be causation and harm the only statement in the record of what the kings look that does not even say they ever review these documents excerpt of records one hundred sixty two one zero two so what they're saying is we never saw this we never saw it and if you don't see it under more oil which was decided before the reply brief and i thought it was in their reply brief but it wasn't so we submitted the twenty eight j letter on it it was after our brief closed more oil rejects a claim where and s p d was inaccurate because it said well nobody ever  so the s p d claim goes out the window and the reasonable expectations doctrine should for the same reason but even if it doesn't you have a state of shock only which says that it's limited to insurance plan and there's great rationale for that because a receipt has a preemption provision and it has an exception for insurance plans but as only a reza could it has an exception for the exception so congress drafted this one not us and it said if it's a self funded plan you don't apply the law of insurance that's why shockley and other courts say yeah if it's an insur plan fine we apply reasonable expectations but we don't apply it here so we relied on winter's right and it misrepresented winters you know the this court after winters said winters only addressed the reason expectations and dicta that i believe was in sharp so and then shockley says it really never discussed the issue in winters winters holds it but nobody there's no indication that that distinction was even briefed well i'm not sure is mentioned before and after the paragraph we're talking about not mentioned in the paragraph we're talking about and then i said where does it end where does this provision in and you said the next major heading which is mental health parity i think is what you answered but how do i know that isn't is it just font it looks a whole lot like the we don't even have to win that point once you get down to the fact that there are p p a ca provisions on either side i got that part of a lifetime maximum we'll weigh in on that point now on the statutory point you bring up  statutory structure that starts first george burns on for us with eleven ninety one a day and when i say a the first day is little and the second one is in parentheses ok that says nothing in this part and the part of course they don't tell you right there you have to read it starts at eleven eighty five and ends at about eleven ninety three nothing in this part shall apply to a health care plan that is for retirees except section eleven eighty five right so we know when we read eleven ninety one a day that only eleven eighty five which is why there's a newborn's the stor health insurance providing health insurance the provisions of such part a should apply all right so part of a is saying or this says the party applies to all group to group health plan generally and you're saying that in there and then it says and if there's any thing that conflicts with that part a a plus and now you're saying but the exclusion statute when you get to the doctrine of implied repeal there has to be doesn't imply anything there's a very specific provision that says how this how these things interrelate i understand your honor but it's not the provision that has to be expressed it's the repeal that has to be expressed and let me let me get to that point because i think i can show that it's implied the way that the court and this is the reason why the supreme court hasn't found a single implied d congress new because eleven ninety one a already existed if we want to accept it so that it applies to retire replanned let's put it in eleven eighty five instead they did not they put it in eleven eighty five little d then you get to this explanation by d h s g h h s about why they came to the opposite conclusion which i understand they did but their explanation seems to run directly in the other direction until they get to their conclusion because they point out that the earlier version on git have the exception directly in the p h s act the same exceptions i understand  was the exception in the original patient as act because that covers far more than employer plans and so what they're basically saying what congress is saying i know what i'm so at my understanding is what happened here was the original covered far more as an employer plans but it had a specific exclusion itself for retiree plans and then when they redid it and the p p a c n a they took out the specific exclusion and they put and the existence of eleven ninety one so in other words where they place it in a recess makes that exclusion irrelevant so then they don't have the exclusion as it relates to other plans that aren't governed by rest and then the government goes on and says there's no statement of intent nonfederal government retirees any plan should be treated differently so we're not going to even know or even as to what is covered by the plan and this fashion we're not going to we're not going to one force and obviously that's my point you're exactly right we have to read all the statutes and we're now six years seven years past this point and it's been something that the agencies have remained a lock step in and no court has as taken a different position ha this i'm not aware i'm not aware of a case either way let me ask you if we're going back to the first argument if we were to disagree with you on the plan disclosure issue what what happens we still where they are they entitled to a judgment the district court is a further proceedings we still win because there's no link between the alleged efficiency and the alleged loss that's what the moyl case very diligent about getting pre approval for this very extensive procedure she would have thought we don't know what those conversations consisted of and what the diary entries might indicate from the claims are presented so why why isn't that a question of fact if i may answer that in two parts because one with respect to what was said by the reps that's ms ridley's argument and so i don't want to step on her toes because those are the employees of health care service corporation so i can answer the question for you with respect to the to the summ modification in summary plan description if they never read it and they put in a sworn statement three pages talking about what they believed what they knew and they never even mention reading these made th good afternoon your honor my name's eileen ridley i'm with foley and lerner representing blue cross blue shield of illinois also referred to instances as each c s e so really the issue with regard to us really relates to the claim that we fiduciary and that there was and you think under kyle you're not a fiduciary that's exactly right i thought your representation of the holding of that case was pretty different than what the case says i want to be very upfront with the about that and ask you to tell me what i'm missing discretion whatsoever in the handling of this plan in fact that was also represented by one of the declarations we presented in the context of this motion client had any authority to grant deny or review claims it reviews claims applies the terms and then informs the plan documents are quite clear that the ultimate and final to thank you for this hour is ample we had a case the other day where the question was whether something was an emergency room service wasn't or mercy room service and we were told at great length that more the second the ultimate in a fact shown even by the king's counsel wrote in june of two thousand and thirteen to the plan administrator about the determination related to whether or not the limit apply we don't determine what the terms are applied by and for example as to signing issues medical necessity for example or medical when there's a proper medical service we identify when it is it's not properly medical service we to say whether or not there's a medical necessity based on the plan terms noting that is not a guarantee of payment and noting that they would have to rely on the plan terms well we get the plan we apply the plan terms to the claims and they impose on the way home a nation is i mean if i mean the only thing that doesn't seem to me to be a sensible argument a sensible argument is we're not the ultimate decision maker and i don't know whether that matters with regard to project sharing necessarily and not be a fiduciary given to the point you want to make other than that there were in fact no misrepresentations with regard to the allegations that king presented no misrepresentations by c s e to the king with regard to the plan or the application of those terms to the point to the claim ok thank you but if you had a minute or minute or some time left  just a couple points your honour's the council was referring to the paragraph that states the following changes and i just want to point out that you know typically when you say the following changes you in colon and then you state the following changes this is interrupted by a sentence moreover as a score pointed out that you can't tell that these you can't tell the difference between the subheadings he says that there isn't reliance even if we if we disagree with him on the  not on the question for mines that's correct in fact they never even argued in summary judgement as i recall that they never disputed that the plan was was was unclear is is the discovery done completely so that and others do you have discovery from you know we did not hear or we did not but the record shows that she was in i think the weekly contact with them right weekly contact with blue cross right well how could this be on their record i mean they were in for alliance or have to  out that the other cases that have found that you know provisions in the summary plan our own enforceable based on failure to comply with the nose requirements have never discussed reliance i think it's an objective standard i haven't seen if he's talking about more oil more i am not completely familiar with moily i have to be honest to cancel it's different there's a difference and again we're so far over time but there's a difference between saying we haven't reached that question yet and taking the position that you think you don't have to show reliance on the plan document if the if the plan document was misleading i'm not sure which one you're telling us well what i'm telling you is i don't recall in reading the cases that there ever being a  discussion i'm not talking about i know what the cases say i'm sure asking you whether you're saying that in the district court that the case didn't advance to the point of litigating reliance versus you telling me you think you don't have to say reliance i'm telling you both i think i'm