[00:00:01] Speaker 04:
Good morning, Your Honors.

[00:00:02] Speaker 04:
May it please the Court?

[00:00:03] Speaker 04:
Brian King is my name.

[00:00:05] Speaker 04:
I'm representing the plaintiffs in this case.

[00:00:09] Speaker 04:
This is a case that involves treatment of a young woman at a residential treatment center who, this young woman, had serious mental health and substance use disorder problems.

[00:00:21] Speaker 04:
I won't recount either in summary or detail because

[00:00:25] Speaker 04:
The briefing contains it, but this is a very troubled young woman.

[00:00:27] Speaker 04:
She had struggled with issues involving, as I say, both mental health and substance use disorder for months before she was admitted and treated at Eva Carlston Academy in Salt Lake City.

[00:00:40] Speaker 04:
Primera is the third party administrator of the self-funded plan that provides health benefits for this family.

[00:00:46] Speaker 04:
And they denied coverage based on a lack of medical necessity.

[00:00:50] Speaker 04:
their allegation that the treatment at Eva Carlson.

[00:00:52] Speaker 01:
The key threshold issue we have is whether or not we review their determination and interpretation of the standards for abuse of discretion.

[00:01:03] Speaker 01:
Yes.

[00:01:04] Speaker 01:
What's your position on that?

[00:01:05] Speaker 04:
Our position is that we believe that there are procedural irregularities that exist that could cause the court to say, we're going to do de novo.

[00:01:14] Speaker 04:
But for purposes of the case and before the district court and before this court, we have

[00:01:19] Speaker 04:
agreed to an abuse of discretion standard of review.

[00:01:22] Speaker 04:
And that's important, Your Honor, as you point out, because one of the things that we're looking at, when you have deference that is granted to plan administrators such as Primera, it becomes all the more important that the procedural guarantees of ERISA's claim procedure regulations are honored.

[00:01:42] Speaker 04:
If the federal judiciary, as it can and should, defers, they've got to make sure that at the very least those procedural guarantees are followed, that there is a full and fair review provided, that there is a meaningful dialogue that is engaged in.

[00:01:59] Speaker 04:
And the Ninth Circuit's been very clear on that, as have other courts across the country.

[00:02:03] Speaker 04:
And what we see is an increasing trend toward, in these particular cases involving residential treatment centers,

[00:02:12] Speaker 04:
providing mental health and substance use disorder care.

[00:02:15] Speaker 04:
The circuits, the 10th Circuit is one, the 9th Circuit has this case, but there have been other cases where they've decided you've got to engage in a meaningful dialogue.

[00:02:25] Speaker 04:
And if you have information that is presented to you and you're a third party administrator

[00:02:31] Speaker 04:
an appeal letter that goes into detail in the medical records about why the treatment was medically necessary.

[00:02:37] Speaker 04:
As the third party administrator, the insurance company has to come back and talk in a meaningful, frank way with the family, with the petitioner, the claimant about why it is that their appeal letter doesn't work.

[00:02:51] Speaker 04:
And that's especially important here because what we see in the appeal letter, the letters that were submitted in this case, Your Honors,

[00:02:57] Speaker 04:
that the individuals who were treating this young woman and who wrote letters of medical necessity said to Primera over and over again, if you have any questions, please reach out and let us know.

[00:03:09] Speaker 04:
Talk to us.

[00:03:10] Speaker 01:
But even if there is a procedural issue, ultimately, there'd have to be some showing of prejudice.

[00:03:17] Speaker 01:
So ultimately, this case comes down to whether they properly used the inner qual

[00:03:22] Speaker 01:
criteria, and then whether they properly assessed that you didn't meet the criteria.

[00:03:28] Speaker 01:
And so what—can you address those issues?

[00:03:31] Speaker 04:
Well, what I would say about that, Judge Collins, is I would look at that and say we did make clear, and the medical records make clear, on undisputed facts that we satisfied, first and foremost, the interqual criteria.

[00:03:45] Speaker 04:
Now, we have some qualms

[00:03:47] Speaker 04:
about whether the Interqual Criteria puts a gloss on the language of the plan itself that defines medical necessity, that is improper.

[00:03:58] Speaker 04:
We say, and said to the district court, and we said in the pre-litigation appeal process, it's the terms, the language of the plan, and the medical necessity definition of the plan that guides you and has to dictate what the result is.

[00:04:11] Speaker 04:
They use the Interqual Guideline, PRMRA uses the Interqual Guidelines to then put some more definition and

[00:04:19] Speaker 04:
meaning to the more general language of the plan document.

[00:04:23] Speaker 04:
I don't know that on the facts of this case, that's dispositive at all.

[00:04:26] Speaker 04:
I don't have a problem with it.

[00:04:27] Speaker 04:
I kind of do.

[00:04:28] Speaker 04:
But the fact is, the information that was presented by the family, the undisputed information, shows that at least some of the interqual criteria

[00:04:38] Speaker 04:
this young woman's condition satisfied in terms of her symptomology.

[00:04:42] Speaker 04:
And yet, Primera never responded to us.

[00:04:45] Speaker 04:
They never came back and said, no, you're wrong, and here's why.

[00:04:48] Speaker 04:
They provided the most conclusory language.

[00:04:50] Speaker 04:
And what you see other courts saying, the Tenth Circuit is one in the D.K.

[00:04:54] Speaker 04:
and the David P. and the E&C case, but most recently, as our 28-J letter pointed out from earlier this week, the Fifth Circuit in the Dwyer case says, yeah, this kind of conclusory, these kind of statements from

[00:05:07] Speaker 04:
third-party administrators and insurers that don't come to grips with the undisputed information in the medical records about the patient's condition.

[00:05:17] Speaker 04:
That's problematic as a matter of process, but as you point out, Judge Collins, it also goes to the question of a substantive error in whether benefits were denied when they should have been granted.

[00:05:30] Speaker 04:
So there's a melding of the process and the substance here.

[00:05:35] Speaker 04:
I don't have a qualm with the idea that if you just come in, if I as a plaintiff's lawyer just came in and said,

[00:05:40] Speaker 04:
hey, the process wasn't followed, and you look at it and say, yeah, but there's no reason to think that the substance of the decision was in error at all.

[00:05:49] Speaker 04:
That's a hard case for me.

[00:05:51] Speaker 04:
I don't think that there should be a remedy for procedural violations when there's no reason to think that substantively there was a wrongful denial of benefits.

[00:05:59] Speaker 04:
But what we've got here is both these things, and they combine in a way that really creates problems for, in this case, Primera and the plan.

[00:06:08] Speaker 02:
So if, in fact, Primera had engaged in a meaningful dialogue and saying, we need X, Y, and Z information, what would you have provided that's not in the record now?

[00:06:19] Speaker 04:
Right.

[00:06:19] Speaker 04:
Well, we would have gone back and had letters of medical necessity supplemented.

[00:06:25] Speaker 04:
So the providers would have been able to say, you say that this child needs to have X, Y, and Z kind of components under the interqual criteria.

[00:06:36] Speaker 04:
And we can show you that, in fact, those things existed.

[00:06:39] Speaker 04:
So there would be a more meaningful dialogue, a specificity to a second level appeal letter from the family and from the providers of the care to say, you say, this is what interqual requires.

[00:06:51] Speaker 04:
Well, we can show that.

[00:06:52] Speaker 04:
Or interqual, we've looked at interqual and it doesn't just require those things, it requires, it says it's medically necessary if there are other things that happen.

[00:07:00] Speaker 02:
Let me make sure I understand your answer.

[00:07:02] Speaker 02:
What you were saying is we would have gone back and gotten additional records.

[00:07:06] Speaker 02:
You don't have any records now that you would have submitted in addition.

[00:07:11] Speaker 04:
Not in addition because the only records that we have are the records from Eva Carlston Academy.

[00:07:15] Speaker 04:
We would have been in a position to more intelligently and persuasively present information to Primera to say,

[00:07:22] Speaker 04:
this, the things that you're saying interqual requires in fact did exist in the records.

[00:07:28] Speaker 04:
So when you have just these conclusory statements from an insurance company to say, we don't think it's medically necessary.

[00:07:35] Speaker 04:
We think you could have been safely and effectively treated at a lower level of care, but they never tell you why they're ignoring the plain information, the explicit, quite detailed information, either the medical records or in the letters of medical necessity.

[00:07:48] Speaker 04:
Or in the appeal letters themselves, sometimes the family provides additional information.

[00:07:53] Speaker 04:
The appeal letters, it's not found either in the medical records or the letters of medical necessity that inform and enlighten, provide information to Primera.

[00:08:01] Speaker 04:
We didn't have any kind of a meaningful dialogue in that way.

[00:08:04] Speaker 04:
And that's the problem.

[00:08:05] Speaker 04:
So again, what we would come back to and say, Your Honors, is

[00:08:10] Speaker 04:
especially under an abusive discretion standard of review.

[00:08:13] Speaker 04:
This court must be satisfied that a meaningful dialogue took place, that there was a full and fair review as required by the explicit language of ERISA.

[00:08:21] Speaker 04:
We just don't have that here.

[00:08:23] Speaker 03:
Counsel, if I can jump in.

[00:08:24] Speaker 03:
I just have a couple procedural questions, just to understand how we frame this issue in this case.

[00:08:29] Speaker 03:
So the initial denial, as I understand it, was on November 8th of 2017.

[00:08:34] Speaker 03:
Then there's a reference to some further reviews that the insurance company did.

[00:08:39] Speaker 03:
Dr. Ali's letter, which was in, I believe, July of 2018.

[00:08:44] Speaker 03:
And then there's Met Health has their own analysis in January of 2019.

[00:08:49] Speaker 03:
Now, those came long after the initial denial.

[00:08:53] Speaker 03:
So I'm trying to understand.

[00:08:54] Speaker 03:
I'm asking the same question.

[00:08:56] Speaker 03:
At the end of the day, on the one hand, you could say, well, it's really relevant that these two independent doctors said that this claim should not be honored.

[00:09:03] Speaker 03:
But it also came long after the initial denial.

[00:09:06] Speaker 03:
So I'm trying to understand, is that something we do consider when we review the initial denial, or is it just irrelevant because it wasn't before the insurance company in November of 2017?

[00:09:15] Speaker 04:
Right.

[00:09:16] Speaker 04:
It's a good question, Judge Onsa.

[00:09:18] Speaker 04:
Here's the thing that ERISA requires.

[00:09:20] Speaker 04:
It requires a pre-litigation appeal process that is meaningful so that

[00:09:24] Speaker 04:
Parties can resolve their differences before they have to make a decision about whether they need to go to federal court.

[00:09:30] Speaker 04:
That pre-litigation appeal process is an evolving process.

[00:09:33] Speaker 04:
It contemplates that there will be a dialogue, as the phrase uses that word, that there will be a back and forth exchange.

[00:09:40] Speaker 04:
Information will be provided.

[00:09:41] Speaker 04:
Responses will be given.

[00:09:43] Speaker 04:
Follow-up information will be provided.

[00:09:45] Speaker 04:
The KD case, Judge Jenkins out of Utah from 2023, has a nice comment about how that process works and what it should look like.

[00:09:56] Speaker 04:
So what we've got here is,

[00:09:59] Speaker 04:
information that up until the point of litigation commencing, we think our position is that that is part of the pre litigation appeal process.

[00:10:07] Speaker 04:
That is fair game for district court or the circuit court to consider as to whether there was in fact a full and fair review.

[00:10:13] Speaker 04:
as to whether there was, in fact, a meaningful dialogue that came to grips, comes to grips with the information that the parties are exchanging.

[00:10:20] Speaker 03:
And then the next question I have, which is different, is, so the care that you want your client to have was a certain amount of money.

[00:10:28] Speaker 03:
The insurance company thought it should be a lesser amount.

[00:10:31] Speaker 03:
What happened to the situation?

[00:10:32] Speaker 03:
Do they have to make up the dip?

[00:10:34] Speaker 03:
Let's assume, just so I understand the math, let's just say we think that they're right, which I'm not saying.

[00:10:40] Speaker 03:
But they still would owe your client something.

[00:10:43] Speaker 03:
Is there a process for your client to at least get whatever they thought should have happened?

[00:10:48] Speaker 03:
Is there a way for your client at least to get that money?

[00:10:52] Speaker 04:
Not, no.

[00:10:53] Speaker 04:
The answer to the question is no.

[00:10:55] Speaker 04:
I hear what you're saying, Judge, is, well, listen, they acknowledge that at least outpatient treatment was medically necessary.

[00:11:00] Speaker 04:
Absolutely.

[00:11:00] Speaker 04:
And so they should have paid, instead of the full rate of treatment at Eva Carlson, they should have paid 15% or 20% of that through a flick.

[00:11:10] Speaker 04:
No.

[00:11:10] Speaker 04:
It's all or nothing in this case.

[00:11:13] Speaker 04:
Now, the family has gone ahead, as you know, the family decided that it was necessary to treat this young woman at Eva Carlston.

[00:11:20] Speaker 04:
And they made arrangements and came up with the funds to have her treated.

[00:11:24] Speaker 04:
So if this court chose to remand the case, and you see the Tenth Circuit in the DK case and then in the David P case, in the DK case, they affirmed the district court's decision to not just reverse the denial, but to order payment of benefits.

[00:11:39] Speaker 04:
In the David P case, they reversed a portion of the district court ruling and said, we're going to affirm that the denial of benefits was wrongful, but we're going to reverse the district court's order that benefits be paid.

[00:11:52] Speaker 04:
And we're going to remand the case back to the insurance company for an evaluation of whether the benefits should be paid.

[00:12:01] Speaker 04:
But that's a different question than you're asking.

[00:12:05] Speaker 04:
There's nothing that I'm aware of that requires Primera to pay what they would have paid at the outpatient level.

[00:12:12] Speaker 04:
What they would have paid.

[00:12:13] Speaker 04:
Yes.

[00:12:14] Speaker 04:
There's nothing that I'm aware of.

[00:12:16] Speaker 04:
And I'll reserve the remainder of my time.

[00:12:17] Speaker 04:
Very well.

[00:12:17] Speaker 04:
Thank you.

[00:12:24] Speaker 00:
Thank you, Your Honors.

[00:12:25] Speaker 00:
My name is Gwendolyn Payton, and I represent Primera Blue Cross and Columbia Banking Systems Benefit Plan.

[00:12:32] Speaker 00:
With me is Melissa Anderson from Primera.

[00:12:35] Speaker 00:
This case is about the confinement of a child in a residential treatment center, which is a 24-7 lockdown facility

[00:12:43] Speaker 00:
It's a significant moment in the life of the child.

[00:12:45] Speaker 00:
The child is away from community, from family, from peers, from friends, from school.

[00:12:50] Speaker 00:
And the issue here is, was it medically necessary for I.B.

[00:12:55] Speaker 00:
at the time of admission and during her stay there?

[00:12:58] Speaker 00:
To answer Your Honor's question about,

[00:13:03] Speaker 00:
Is this about paying less money?

[00:13:05] Speaker 00:
No.

[00:13:06] Speaker 00:
It's about paying for the right level of care, because just like hospitalization, we don't want people in the hospital when they don't need to be there.

[00:13:14] Speaker 00:
That's unhealthy.

[00:13:16] Speaker 00:
And we don't want a child confined when she doesn't need to be confined.

[00:13:20] Speaker 00:
Had the facility submitted the claims for therapy, which were covered,

[00:13:25] Speaker 00:
it would have paid.

[00:13:27] Speaker 00:
What's at issue in this case is the room, board, and tuition of the academy.

[00:13:32] Speaker 00:
Those things were not medically necessary, and what the plaintiffs want is this court to order payment of that room, board, and tuition through 12 months.

[00:13:42] Speaker 01:
Following up on Jojoen's questions earlier, presumably as part of the

[00:13:48] Speaker 01:
program at the Residential Treatment Center, she did receive counseling and therapy and possibly other assistance.

[00:14:00] Speaker 01:
Were those services paid for by Primera?

[00:14:04] Speaker 00:
If they had been submitted correctly as claims, they would have paid.

[00:14:09] Speaker 01:
Even though they took place at Eva Carlson?

[00:14:12] Speaker 00:
Yes.

[00:14:13] Speaker 00:
They could, for example, we often see therapy provided in schools and public schools and otherwise, and those claims pay.

[00:14:20] Speaker 00:
But what isn't paid is the tuition to go to school.

[00:14:24] Speaker 00:
And that wasn't medical care.

[00:14:25] Speaker 00:
And you see that in terms of what the facility is actually providing.

[00:14:29] Speaker 00:
The facility didn't do what Interqual requires for a residential treatment center.

[00:14:36] Speaker 00:
There needs to be a psychiatric evaluation upon intake within 24 hours.

[00:14:42] Speaker 00:
That did not happen.

[00:14:43] Speaker 00:
The child needs to see the psychiatrist at least once a week.

[00:14:47] Speaker 00:
And this is common sense.

[00:14:49] Speaker 01:
On this once a week issue, that's mentioned at the first level explanation.

[00:14:54] Speaker 01:
But maybe I'm reading it wrong.

[00:14:56] Speaker 01:
You'll correct me if I am.

[00:14:57] Speaker 01:
But it seemed to drop out when it goes up the level of appeals and that only the ground that

[00:15:06] Speaker 01:
you know, she had done well at wilderness and could have been treated in the community.

[00:15:10] Speaker 01:
That's mentioned at the higher levels, but the not seeing the psychiatrist every week or whatever, that dropped out.

[00:15:17] Speaker 01:
Am I reading that wrong?

[00:15:18] Speaker 00:
You're reading it right, Your Honor, and let me tell you.

[00:15:21] Speaker 01:
But doesn't that mean you forfeited that rationale?

[00:15:24] Speaker 00:
No.

[00:15:25] Speaker 01:
Because you had it at the bottom, and then as they went up the appeal, you dropped that and had the others.

[00:15:31] Speaker 01:
Why isn't the right answer we just set that aside?

[00:15:34] Speaker 00:
The right answer is you consider it because you look at the course of the ERISA appeal process.

[00:15:40] Speaker 00:
And I want to walk you through that and answer that question.

[00:15:43] Speaker 00:
It also answers the question that your honor had about how does this work and why is the temporal quality of it and what do you consider?

[00:15:52] Speaker 00:
And those answers are together.

[00:15:54] Speaker 00:
So the claim comes in, and it's already, the child has been confined in this treatment center for seven months by the time the claim comes.

[00:16:04] Speaker 00:
At that point, Primera says, you're not at the level of severity to be confined, and also they're not doing the things that they need to do to be a medical facility.

[00:16:15] Speaker 00:
And that's the issue, Your Honor, you're raising about the psychiatric evals on intake and carrying off.

[00:16:22] Speaker 00:
They say at that point,

[00:16:23] Speaker 00:
family if you disagree and you think we've got this wrong let us know you can appeal and you can submit anything that you want and you can have doctors talk to us they did that and in responding to the level one appeal what the family says

[00:16:41] Speaker 00:
and you really should look at that letter.

[00:16:43] Speaker 00:
It's 226 in the record.

[00:16:46] Speaker 00:
They write a lengthy and very thoughtful letter with a lot of history of the child, and that answers the question your honor was asking is, what else would they have said, right?

[00:16:57] Speaker 02:
The question I have, because I look at the denial letters, and they basically say, if you have other information, send it to us.

[00:17:04] Speaker 02:
But it really doesn't, they didn't, Premier really didn't communicate, this is what we need.

[00:17:11] Speaker 02:
It just said, send us information, and they did.

[00:17:14] Speaker 02:
But the argument, the level of specificity you're arguing today in the briefs, I see is not present in the letters.

[00:17:22] Speaker 02:
At least that's the way I read them.

[00:17:24] Speaker 00:
I disagree.

[00:17:25] Speaker 02:
And that's the question.

[00:17:26] Speaker 02:
My question is whether Premier really engaged in a meaningful dialogue about what was necessary.

[00:17:32] Speaker 00:
Well, they tell them, first of all, they tell them a lot of information.

[00:17:35] Speaker 00:
They tell them the plan part that they're relying on.

[00:17:38] Speaker 00:
That's that medical necessity definition.

[00:17:40] Speaker 00:
and they say, these are the interqual guidelines, and they have that, and here are all of the issues that we would expect to see for residential treatment.

[00:17:49] Speaker 00:
If you think there is evidence of that, you can submit that, and it's very clear what the requirements are, and that's what ERISA requires.

[00:17:58] Speaker 02:
And that- What I don't see is, we reject your submissions because, and we need something else.

[00:18:05] Speaker 00:
What they say is, you didn't meet these criteria.

[00:18:08] Speaker 00:
Here's the criteria.

[00:18:10] Speaker 00:
If you have information that you think meets this requirement, then you can submit it to us, including expert opinions, including treating providers, whatever you think you need to show us.

[00:18:24] Speaker 00:
And what you would expect in this case, Your Honor,

[00:18:27] Speaker 00:
in cases like this, would be a psychiatric evaluation that shows that the child is at the level of severity that needs to be taken out of the community, and we don't have that there in this case.

[00:18:39] Speaker 02:
So when did you tell?

[00:18:40] Speaker 02:
Over and over.

[00:18:43] Speaker 02:
You gave the general criteria, but as far as I can tell, in the letters, you did not specify that with the level of specificity you're giving us today.

[00:18:52] Speaker 02:
I know what you think, but the letters are just saying,

[00:18:56] Speaker 02:
That wasn't enough, send us more if you have anything.

[00:18:58] Speaker 00:
Well, this is what ERISA requires.

[00:19:00] Speaker 00:
You have to tell the member why you are saying no.

[00:19:04] Speaker 00:
And they do that with quite a bit of specificity.

[00:19:07] Speaker 00:
And then if there is something else out there that goes to the issue of why you're saying no.

[00:19:13] Speaker 00:
And that gets to the next point of when the family responds with the level one appeal, they never raise the issue of the psychiatric evaluation.

[00:19:23] Speaker 00:
It is not in that letter.

[00:19:25] Speaker 00:
And what Primera then does in response to the level one appeal is they send it to an independent child and adolescent psychiatrist who does an independent evaluation.

[00:19:35] Speaker 00:
And at that point,

[00:19:37] Speaker 00:
They respond to the family's concerns and nowhere in there is that psychiatric level of frequency of visit raised again and what Arissa and every single case you will not find any authority to the contrary.

[00:19:52] Speaker 00:
says is that you respond to what the member is saying.

[00:19:55] Speaker 00:
You do not have to shadow box.

[00:19:57] Speaker 01:
To your point is that you in the first one had these multiple grounds and then in the appeal they didn't challenge that particular ground.

[00:20:05] Speaker 01:
Correct.

[00:20:06] Speaker 01:
So that's why it's never mentioned again.

[00:20:08] Speaker 00:
That is correct.

[00:20:09] Speaker 00:
They are responding to the family's arguments.

[00:20:11] Speaker 01:
But why wouldn't you point out in the letter

[00:20:14] Speaker 01:
you know, we gave an adequate and independent alternative ground that you haven't even challenged.

[00:20:20] Speaker 01:
And so what is your response to that?

[00:20:23] Speaker 01:
That's never even told to them.

[00:20:26] Speaker 01:
Now you're saying basically the whole appeal was pointless because there was a ground that was unchallenged that was sufficient alone to deny it.

[00:20:35] Speaker 00:
I wouldn't call it pointless.

[00:20:38] Speaker 00:
I think that what we see in this case is the ample amount of due process that an ERISA beneficiary is entitled to under ERISA.

[00:20:47] Speaker 00:
And there's a reason that we have this, right?

[00:20:49] Speaker 00:
We want quick, efficient claims adjudication.

[00:20:52] Speaker 00:
This is what Congress has told us we must do.

[00:20:54] Speaker 00:
But there's trade-offs, right?

[00:20:56] Speaker 00:
That's why we see in ERISA there's no jury trial.

[00:20:59] Speaker 00:
There's no discovery.

[00:21:03] Speaker 00:
You're limited to the administrative record.

[00:21:05] Speaker 00:
But what Fair and Full Review says is you address what they want to talk about and you address it.

[00:21:12] Speaker 00:
What you don't have to do is continue to do an array of issues that are no longer being contested or an issue.

[00:21:20] Speaker 00:
They had the right to do those appeals.

[00:21:22] Speaker 00:
They could put anything in the appeals that they wanted.

[00:21:25] Speaker 00:
They didn't have to raise issues if they didn't think they were contestable, like this one simply wasn't.

[00:21:31] Speaker 02:
Sorry to interrupt, but the regulations provide that you have to provide the claimant with the required information so that she could perfect her claim.

[00:21:44] Speaker 02:
And what I see in the letters is a denial and then send us anything more you've got.

[00:21:49] Speaker 02:
You didn't say, we really need X if you're going to perfect the client.

[00:21:54] Speaker 02:
We didn't need the psychiatric report.

[00:21:56] Speaker 00:
Yeah, they did at the beginning and said there's no psychiatric report.

[00:22:00] Speaker 00:
And it's in there.

[00:22:02] Speaker 00:
And look, either they send it or they don't, but they get all these layers of appeal.

[00:22:05] Speaker 00:
Then you see after the level one, they get the panel review.

[00:22:09] Speaker 00:
They do submit an additional letter at that point.

[00:22:11] Speaker 00:
And again, when you look at their submission, they're addressing many issues in their letter, but they're all really going to the issue of the history of the child.

[00:22:21] Speaker 00:
Not the child at the time of admission, but just the difficulty that the child has endured through life.

[00:22:27] Speaker 00:
Then, and this is the most important part of the appeal when you're doing an abuse of discretion review, under the Affordable Care Act, it is mandated that the family is entitled to an independent review and that reviewer is selected by the insurance commissioner from the state of Washington, picks that reviewer.

[00:22:48] Speaker 00:
Again, we get an independent child and adolescent psychiatrist, looks at the whole thing, right?

[00:22:54] Speaker 00:
and says, no, this level of severity isn't enough for residential treatment at the time of admission and thereon.

[00:23:03] Speaker 00:
At that point, nobody is contesting the fact that she wasn't receiving the level of medical care that you would need to have a child receive if you're going to be doing this level of confinement and the child cannot be safely treated

[00:23:18] Speaker 00:
in the community.

[00:23:19] Speaker 00:
And you see in those inter-call guidelines, there is a very strong statement that you want to get the child back into the community as fast as possible.

[00:23:29] Speaker 00:
This is a therapeutic boarding school.

[00:23:31] Speaker 00:
It may have been beneficial for the child during certain points, but it doesn't mean it's medical care under an ERISA plan.

[00:23:39] Speaker 00:
It is something different.

[00:23:41] Speaker 00:
What plaintiffs say is the problem with this whole appeal process

[00:23:45] Speaker 00:
is, of course, the issue we've been talking about.

[00:23:48] Speaker 00:
Did Primera abandon, or is that a shifting rationale?

[00:23:52] Speaker 00:
It is not, because you will see, for example, in the EW case out of the 10th Circuit, they addressed this very issue that if you don't raise an issue, the ERISA appeal process doesn't require you to address it over and over.

[00:24:07] Speaker 00:
And that makes sense.

[00:24:08] Speaker 00:
It would be inefficient.

[00:24:11] Speaker 00:
We don't want a process where we're trying to guess arguments that might be out there.

[00:24:16] Speaker 00:
What we're doing is having a meaningful dialogue with the family, addressing what they have raised in their appeal and what is concerning them.

[00:24:24] Speaker 00:
The other issue that they raise is that Primera ignored those provider letters.

[00:24:32] Speaker 00:
And I think the law is very clear at this point where we have a lot of robust case law about what to do with provider letters.

[00:24:40] Speaker 00:
They need to address the salient issue.

[00:24:42] Speaker 00:
I don't think that Primera ignored them, but they don't talk about that issue that needs to be addressed for medical coverage, which is

[00:24:50] Speaker 00:
Is there level sufficient evidence that at the time of admission, the child cannot be treated safely at a lower level of care?

[00:24:59] Speaker 00:
Again, that's not about paying less.

[00:25:01] Speaker 00:
That's about getting the right treatment at the right time in the life of the child.

[00:25:06] Speaker 00:
And there simply is nothing in any of those letters that goes to that issue.

[00:25:12] Speaker 00:
What there are are generalized references to the history of the child and the need for care, which is not contested here.

[00:25:20] Speaker 00:
It's just whether this room board intuition was something that needed to be covered.

[00:25:26] Speaker 00:
You see in this case a really robust due process given to the family, and what you will not see, Your Honor,

[00:25:34] Speaker 00:
is a failure to address the issue that the family raises at all four steps.

[00:25:39] Speaker 00:
Every time the family raises an issue, Primera responds to it.

[00:25:44] Speaker 00:
And the issue of allowing a robust, completely open, and you'll note in the record that the family could have appeared at the panel and talked.

[00:25:52] Speaker 00:
So all of this is taken into consideration.

[00:25:56] Speaker 00:
In all the ERISA regulations, we see that movement toward allowing people to submit what they want to submit, but no requirement that you respond to what they do not choose to submit during the administrative record.

[00:26:10] Speaker 00:
So the reason, Your Honor, that this record goes on for a while is because there are timelines under ERISA.

[00:26:17] Speaker 00:
The family can appeal within a very lengthy period of time post-denial.

[00:26:22] Speaker 00:
And so they submitted their claims whenever, their appeals whenever.

[00:26:26] Speaker 00:
And Primera has a certain amount of statutory time to respond to those, and it extends out.

[00:26:32] Speaker 00:
However, the reviewers will look at everything.

[00:26:35] Speaker 00:
that is submitted.

[00:26:36] Speaker 00:
So things at the time of admission, which are really the most salient, but also things that happen afterward because they are important.

[00:26:44] Speaker 00:
The issues about where the child was prior to admission, how the child was after admission, you can see that the child and adolescent psychiatrists do care about that.

[00:26:55] Speaker 00:
But the question is, at the time of admission, can she be treated at a lower level of intensity?

[00:27:02] Speaker 00:
And there is nothing in this record that would lead to the alternate conclusion.

[00:27:07] Speaker 00:
Again, we'd expect to see a comprehensive psychiatric exam upon admission.

[00:27:12] Speaker 00:
It's simply not there.

[00:27:14] Speaker 00:
It will never be there, of course.

[00:27:16] Speaker 00:
But the risk of process was still wanting to engage with the family as they raised new issues, and things can change, right?

[00:27:27] Speaker 00:
Over 12 months, there may be something that happens that changes the level of severity, but that did not happen in this case.

[00:27:35] Speaker 00:
Under abusive discretion, this court should uphold the district court's finding

[00:27:40] Speaker 00:
and find that this claim was properly adjudicated and all of the procedural requirements under ERISA were done for this family.

[00:27:48] Speaker 00:
Thank you.

[00:27:49] Speaker 03:
Thank you, counsel.

[00:27:55] Speaker 03:
We can round up to three.

[00:28:00] Speaker 04:
Thank you, Your Honors.

[00:28:01] Speaker 04:
I want to go back to this issue about the first denial letter raising the question about whether there was a psychological evaluation in the first 24 hours, I think it was.

[00:28:12] Speaker 04:
That was in the first letter, and as you point out, Judge Collins, it was dropped from the second and third letters.

[00:28:19] Speaker 04:
Part of the reason we think it was dropped is because in the appeal letter we did say

[00:28:23] Speaker 04:
Listen, the medical records show that the treatment generally, and specifically for this young woman, was medically necessary.

[00:28:31] Speaker 04:
And we are telling you that we have a problem with using anything other than the language of the plan itself that talks about what constitute medical necessity.

[00:28:42] Speaker 04:
There's nothing in the plan about this kind of really detailed specific requirement of a psych eval happening in the first 24 hours.

[00:28:50] Speaker 04:
What happens is, at the facility,

[00:28:52] Speaker 04:
you see treatment being provided on a daily basis.

[00:28:56] Speaker 04:
My colleague.

[00:28:57] Speaker 01:
Just so I understand, your argument in that respect is that to the extent that that requirement is in the interqual criteria, that wasn't an appropriate criterion to bring in.

[00:29:10] Speaker 01:
But you didn't contest on the appeal from the first denial that that criterion was not met if it was applicable.

[00:29:18] Speaker 04:
We contested, we stated in that initial appeal letter that the treatment was medically necessary, both under the language of the plan, and we talked about the criteria from Interqual in that appeal letter and subsequent appeal letters being satisfied.

[00:29:33] Speaker 04:
We also said, as you point out, Your Honor, that the Interqual criteria was unduly stringent, that it did not reflect generally accepted standards of medical practice.

[00:29:41] Speaker 04:
It's not necessary for this Court to reach that issue simply because

[00:29:45] Speaker 04:
But the undisputed facts in the record show that the Interqual Criterion Fact was met.

[00:29:49] Speaker 01:
On this point, on the specific point about… But they weren't met on terms of having a validation of need on a, you know, weekly or whatever the… Well, they were not met in the sense that there wasn't a psych eval happening in the first day.

[00:30:03] Speaker 04:
But there was a psych eval, and Premier admits this, that there was a psych eval within 10 days after admission.

[00:30:09] Speaker 04:
I think if you go to page 211 of volume 3 of the record, you'll see that.

[00:30:14] Speaker 04:
There was regular treatment being provided to this young woman on a multiple times a week, many times multiple times a day.

[00:30:22] Speaker 04:
So this was an intensive clinical environment.

[00:30:25] Speaker 04:
My colleague refers to it as a therapeutic boarding school.

[00:30:28] Speaker 04:
It's not a therapeutic boarding school.

[00:30:29] Speaker 04:
It's a licensed residential treatment center.

[00:30:32] Speaker 04:
Therapeutic boarding schools are licensed separately and differently in the state of Utah.

[00:30:36] Speaker 04:
This is an example of a post-hoc argument that's being presented that, well, this is

[00:30:40] Speaker 04:
treatment that's provided in a setting other than residential treatment.

[00:30:43] Speaker 04:
It's just not accurate.

[00:30:46] Speaker 04:
We think that the EW case, we talked about this in our reply brief, Your Honors, that the EW case on which Primera relies on is distinguishable.

[00:30:55] Speaker 04:
I won't go through that.

[00:30:56] Speaker 04:
I'm out of time anyway.

[00:30:57] Speaker 04:
But we think, to conclude, that the Bhutan, Salama, or Saloma, Saffan, and Harlech cases from the Ninth Circuit, together with others that we cite from the Tenth and the Fifth Circuit,

[00:31:09] Speaker 04:
are most appropriate in terms of the lack of a meaningful dialogue here and justify reversal, require reversal of the district court decision.

[00:31:18] Speaker 03:
Thank you very much, counsel.

[00:31:19] Speaker 03:
Thank you to both of you for your briefing and argument in this case.

[00:31:22] Speaker 03:
Much appreciated.

[00:31:24] Speaker 03:
This matter is submitted and we'll move on to the final case for today.