[00:00:04] Speaker 04:
Good morning, Ms.

[00:00:05] Speaker 04:
Payton.

[00:00:06] Speaker 01:
Good morning, Your Honors.

[00:00:07] Speaker 01:
Gwendolyn Payton on behalf of Primera, Tableau Software, and Salesforce.

[00:00:13] Speaker 01:
I'd like to reserve six minutes for rebuttal today.

[00:00:16] Speaker 01:
This is a case about the ERISA process working and the ample due process that was afforded the members and the plan coming to the correct decision both medically and legally.

[00:00:29] Speaker 01:
There are two facilities at issue, Second Nature and Catalyst.

[00:00:34] Speaker 01:
Each claim received multiple levels of review done by an independent child and adolescent psychiatrist, multiple ones, who had no affiliation with Primera.

[00:00:46] Speaker 01:
And although the members did decline the federally mandated independent review for second nature, they did get it for catalysts, which also affirmed Primera's was correct.

[00:00:57] Speaker 04:
Let me ask you this.

[00:00:59] Speaker 04:
Why didn't Primera abuse its discretion by not meaningfully explaining

[00:01:04] Speaker 04:
Wyatt granted coverage for the first 30 days of AB's stay at Catalyst, but not the remainder of his stay.

[00:01:11] Speaker 01:
It is very common for plans to allow upon admission coverage, and that is for the benefit of the member.

[00:01:19] Speaker 01:
It is a dangerous and unprecedented decision by the district court to say that that was somehow a stopple.

[00:01:26] Speaker 01:
There is no authority for that at all.

[00:01:28] Speaker 01:
What Primera did was allow the records to be developed

[00:01:32] Speaker 01:
and then take a look at it after that 30 days, and then found there was no medical necessity.

[00:01:38] Speaker 01:
Under the plan, the claim was never covered, but the plan allowed coverage for the first 30 days for the benefit of the member.

[00:01:47] Speaker 04:
The language of the plan itself did?

[00:01:49] Speaker 01:
No.

[00:01:50] Speaker 01:
The plan in its discretion allowed those claims to be paid.

[00:01:55] Speaker 04:
Let's just say, arguing that we agree that you could have said, you know, we made a mistake.

[00:02:01] Speaker 04:
But you didn't do that.

[00:02:03] Speaker 04:
You didn't explain why 30 days was OK, but the rest was not.

[00:02:08] Speaker 04:
Isn't that a failure that bears on our decision here?

[00:02:13] Speaker 01:
It absolutely does not.

[00:02:14] Speaker 01:
And you won't find a single case that allows that.

[00:02:17] Speaker 01:
And you'll find in the briefing, there's a couple of cases that deal with that scenario.

[00:02:22] Speaker 01:
And for public policy reasons,

[00:02:25] Speaker 01:
What we don't want to encourage is denials because the plan then thinks if I pay for it before I have the full record and give the benefit of the doubt to the member, which is what they did here, that I am going to somehow be a stop from later raising concerns about medical necessity.

[00:02:46] Speaker 01:
That's the way our claim system works, where we have claims need to be adjudicated fast under ERISA or else there are penalties.

[00:02:54] Speaker 01:
So the plan goes forward, pays it, later does the assessment and sees this wasn't covered.

[00:02:59] Speaker 01:
At that point, the plan has discretion.

[00:03:01] Speaker 01:
They can say it was never covered, pay the money back.

[00:03:04] Speaker 01:
Or it can say, we're going to give you the benefit of those 30 days, but going forward, we're not going to pay.

[00:03:10] Speaker 01:
And that is allowed under the language of this plan.

[00:03:13] Speaker 01:
And this court reviews Premier's discretion on these issues and then all of the adjudications for abuse of discretion.

[00:03:20] Speaker 01:
And it clearly is not that.

[00:03:23] Speaker 02:
Well, shouldn't the plan at least explain, if they're asking, why haven't you paid me since you paid the first month?

[00:03:29] Speaker 02:
Don't they have a duty to explain to them why they haven't done that?

[00:03:31] Speaker 01:
Well, they did do that, Your Honor.

[00:03:33] Speaker 01:
So the letters that come back

[00:03:35] Speaker 01:
from the plan after the medical necessity review is actually done are robust and full and there's multiple levels where they explain what the problems plural are.

[00:03:47] Speaker 02:
Did they ever explain to them sure we paid the first month but this is why we paid it and this is why we're not going to pay it any further?

[00:03:54] Speaker 01:
They explain why they aren't going to pay it further for sure with a lot of details.

[00:03:59] Speaker 01:
They don't say

[00:04:01] Speaker 01:
that we paid the first month because we made a finding of medical necessity.

[00:04:07] Speaker 01:
That is an administrative allowance that they do and there is nothing to explain because they didn't do the medical necessity analysis.

[00:04:17] Speaker 03:
I think the question is why didn't you explain?

[00:04:22] Speaker 03:
I mean, that's the meaningful dialogue.

[00:04:24] Speaker 03:
They said, why did you pay for the first part, not the second?

[00:04:28] Speaker 03:
And I don't see an explanation or response to that.

[00:04:32] Speaker 01:
Is there one?

[00:04:34] Speaker 03:
Except to quote the policy language.

[00:04:37] Speaker 01:
The plan never made a finding that the first 30 days were medically necessary.

[00:04:43] Speaker 01:
And in fact, they give the member a lot of information about that when they say there's no psychiatric evaluation at intake.

[00:04:51] Speaker 01:
There's no discharge planning at intake.

[00:04:53] Speaker 01:
You're not seeing a therapist three days a week.

[00:04:56] Speaker 01:
We can see that because of the first 30 days that we gave you the benefit of.

[00:05:00] Speaker 01:
We can see that you're not having the things that are required under the plan to be covered after those first 30 days.

[00:05:09] Speaker 01:
So the question is, what do you do with the fact that now the plan has been very thorough in giving the member and the facility the benefit of the doubt

[00:05:18] Speaker 01:
and after 30 days of medical records realizes this is not medically necessary and it's not covered under the plan.

[00:05:25] Speaker 03:
But what you just said was never communicated.

[00:05:28] Speaker 01:
But it was communicated.

[00:05:29] Speaker 03:
You're asking the people to read between the lines.

[00:05:33] Speaker 03:
I mean, I just don't see anything saying, by the way, here's why we paid the first portion and why the second portion we're not paying is different.

[00:05:45] Speaker 01:
If the plan was required,

[00:05:47] Speaker 01:
to say we did it because we have to adjudicate claims within a certain number of days within ERISA.

[00:05:57] Speaker 01:
And we don't necessarily have the ability to get to every robust appeal within that time.

[00:06:03] Speaker 01:
And what we're not going to do is penalize the member when they're an ongoing care by doing take backs of those things.

[00:06:11] Speaker 01:
The reason the plan didn't address it because it had no intention of taking that money back from the members.

[00:06:17] Speaker 01:
What they were saying, look, you have this.

[00:06:20] Speaker 01:
Going forward, here are the issues that are keeping this

[00:06:25] Speaker 01:
service from being covered under the plan.

[00:06:28] Speaker 01:
And when they did that, they were actually very clear and thorough about the entirety of the say and the problems.

[00:06:36] Speaker 01:
And the problems went back to day one.

[00:06:38] Speaker 01:
What they don't need to do and what they don't do because they didn't think that they were going to go back and do the take back from the member was say,

[00:06:47] Speaker 01:
it was covered during this time or it wasn't covered during that time.

[00:06:51] Speaker 01:
The issue under fair and meaningful dialogue with a member is about the things that are going to harm them, not the things that they got.

[00:07:00] Speaker 01:
You don't need to go back and say, we paid your medical services in the past because of X, Y, and Z. What you need to do is hone in on what is the issue before the member.

[00:07:11] Speaker 01:
which is, we're not paying this claim, here's why, here's what the problem is, if you want to appeal, here are the issues that you can address with us, and you see that robust dialogue happen on the issue that matters, which is the denial of claims, not the grant of the claims.

[00:07:29] Speaker 04:
Follow-up on my colleague, because I don't see an explanation regarding the recommendations of Glissmeyer and Wood why those were insufficient to show the medical necessity standard was not met.

[00:07:41] Speaker 04:
There was no robust discussion at all, was there?

[00:07:44] Speaker 01:
There was no discussion in those letters do not address the issue that was before the administrator at the time, which is does the child at the time

[00:07:55] Speaker 01:
It is confined in the 24-7 lockdown facility.

[00:07:58] Speaker 01:
The residential treatment center need that level of care.

[00:08:03] Speaker 01:
And number two, can the child be safely treated at a lower level of care?

[00:08:07] Speaker 01:
So the discharge summary only says the child would benefit from a residential or therapeutic boarding school going forward, not the issue.

[00:08:16] Speaker 01:
There's nothing in the discharge that talks about whether or not a lower level of care would be sufficient.

[00:08:22] Speaker 01:
And the letter from the therapist, the therapist hasn't even seen the child for months and months prior to the time.

[00:08:29] Speaker 01:
And that letter is written four months after the child is put into the facility.

[00:08:35] Speaker 01:
So the question you ask is why not say those letters don't address the issue?

[00:08:41] Speaker 01:
Under ERISA, the law is very clear and I direct the court to a

[00:08:46] Speaker 01:
recent opinion out of the 10th Circuit, EW, that addresses this very issue.

[00:08:52] Speaker 01:
And it says when provider letters or treating letters are not addressing the issue, the plan does not need to address them affirmatively.

[00:09:00] Speaker 01:
It needs to address the salient issues.

[00:09:03] Speaker 02:
And particularly when the... But if the people who are covered by the plan are asking questions about that, doesn't that raise an obligation to explain to them why they're not considering those reports?

[00:09:16] Speaker 01:
But they don't.

[00:09:17] Speaker 01:
I think if you look through those appeal letters, you will not find a single question about either the discharge summary or the letter from the therapist.

[00:09:28] Speaker 01:
The issues that the members raise are mostly legal issues, and they're issues about the wilderness program being an exclusion under the plan.

[00:09:40] Speaker 01:
And they do not ever say, well, what about something the therapist would said or the discharge summary said.

[00:09:49] Speaker 01:
That is absolutely absent from there.

[00:09:52] Speaker 01:
And so what you have here, it's like EW,

[00:09:55] Speaker 01:
where the court found that when the letters are not on point, the plan doesn't have to go through other than read them and take them into account in the totality, but doesn't need to address them back.

[00:10:07] Speaker 01:
You won't find any question about those letters that the plan failed to raise.

[00:10:13] Speaker 04:
That was in a case where the letters were basically irrelevant.

[00:10:17] Speaker 04:
That wasn't true here.

[00:10:19] Speaker 04:
You say the timing was different, but they were talking about this particular

[00:10:24] Speaker 04:
covered person, right?

[00:10:26] Speaker 01:
The letters in EW were about the particular person, but they were irrelevant in the same sense.

[00:10:32] Speaker 01:
The question the administrator is answering is this, do you meet the criteria under the interqual criteria?

[00:10:41] Speaker 01:
Do you have that level of symptomology right now that would require your confinement at this level care?

[00:10:48] Speaker 01:
And number two, can you be safely and effectively treated at a lower level of care?

[00:10:54] Speaker 01:
I promise you, when you look through those two documents, you will not find anything that addresses that issue.

[00:11:01] Speaker 04:
You will find... That's the problem, at least, that I have, and I think maybe my colleagues, is it seems to me, at least under ERISA, the planned administrator

[00:11:11] Speaker 04:
whether they agree with the plan beneficiary or not, have an obligation to explain decisions that are relevant to the plan beneficiary.

[00:11:22] Speaker 04:
That doesn't seem to have happened here in a couple of instances with respect to, say, the 30-day situation as opposed to later, and with respect to Glissmeyer and Wood.

[00:11:31] Speaker 04:
It's just kind of like, hey, we see it.

[00:11:33] Speaker 04:
Goodbye.

[00:11:34] Speaker 04:
No problem.

[00:11:35] Speaker 04:
And I gather your position is the plan administrator is not required to respond any more than it did.

[00:11:41] Speaker 04:
Is that correct?

[00:11:41] Speaker 01:
That is absolutely right, and you won't find any authority to the contrary because what the plan administrator is doing is using its discretion to interpret the terms of the plan on the issues that are causing the denial, okay?

[00:11:57] Speaker 01:
And that is what the plan does here very well.

[00:12:00] Speaker 01:
It says exactly why they're saying no under the terms of the plan.

[00:12:05] Speaker 01:
For second nature, it says,

[00:12:07] Speaker 01:
You are, this is an excluded service.

[00:12:14] Speaker 01:
And they give a detail about that.

[00:12:16] Speaker 01:
Under the catalyst, they say you do not have the symptomology that rises to the level to require you to be placed in this level of confinement where you need 24-7 care with nurses on staff watching you full time.

[00:12:33] Speaker 01:
you can be safely treated, and they go through the symptoms that are absent.

[00:12:38] Speaker 01:
And the nice thing that I like about that EW case, they talk about this situation where the denial is based on the absence of symptoms.

[00:12:46] Speaker 01:
When the plan is saying these things aren't here,

[00:12:50] Speaker 01:
What they don't have to address is things in the record that may say there are other issues, and certainly there were here, but those aren't the issues that we're looking at here.

[00:13:00] Speaker 01:
And they're not the issues that led to the denital.

[00:13:02] Speaker 01:
The plan is crystal clear about what the issue is, and here's what happens in the appeals.

[00:13:08] Speaker 01:
the members don't address those issues.

[00:13:11] Speaker 01:
They don't come back and deny that, first of all, the level of service isn't being provided at the facility.

[00:13:18] Speaker 01:
They never contest that claim.

[00:13:21] Speaker 01:
Nor do they come forward with evidence that those symptoms that are required under Interqual were actually present.

[00:13:29] Speaker 01:
Those are the ERISA issues.

[00:13:30] Speaker 01:
Those are the fair and meaningful dialogue issues that the plan was required to do.

[00:13:34] Speaker 01:
What the plan doesn't have to do is express every extraneous issue in the ecosystem of the child.

[00:13:40] Speaker 01:
It would be unreasonable for the efficiency of the ERISA process to work.

[00:13:46] Speaker 04:
Want to save your time?

[00:13:47] Speaker 01:
Yeah.

[00:13:47] Speaker 04:
Thank you.

[00:13:48] Speaker 04:
Very well.

[00:13:50] Speaker 04:
All right.

[00:13:51] Speaker 04:
Mr. King.

[00:13:57] Speaker 00:
Good morning, Your Honors.

[00:13:58] Speaker 00:
Brian King, may it please the court.

[00:14:00] Speaker 00:
This is an interesting case involving a very sick young man.

[00:14:04] Speaker 00:
The court spent most of its time on the catalyst claim, and I want to revisit that myself.

[00:14:11] Speaker 00:
This is a situation where, as the court notes, we had a circumstance where the first 30 days were paid, and then the denial letter that came after that raised some specific what we've referred to it as a facility-specific or intensity of service objection.

[00:14:29] Speaker 00:
They said there weren't certain things that were happening in terms of the specifics of the treatment that were being provided to this young man at the facility.

[00:14:37] Speaker 00:
There was an appeal by the family on December 20th of 2019.

[00:14:42] Speaker 00:
That's at the record at 3ER 157 through 170.

[00:14:47] Speaker 00:
And I know that the court is aware of this because you've asked questions about it.

[00:14:53] Speaker 00:
These are extensive and very detailed appeal letters.

[00:14:57] Speaker 00:
this family had a claims advocate, health care claims advocate, helping them with this.

[00:15:03] Speaker 00:
And they asked many questions.

[00:15:05] Speaker 00:
They provide information about how and why the services were sufficient at Catalyst to qualify for coverage under the plan.

[00:15:14] Speaker 00:
But perhaps most importantly, for the first time after 30 days, there's this comment about, well, now we say,

[00:15:21] Speaker 00:
that the intensity of services at Catalyst weren't sufficient to get coverage from the plan.

[00:15:27] Speaker 00:
The problem is, that already provided 30 days of coverage, and they never came back and said, we made a mistake, we want that money back.

[00:15:33] Speaker 04:
Let's say argue, Wendell, they had done that.

[00:15:36] Speaker 04:
Let's just say they had said, you know, we paid 30 days under a plan, we didn't have to do that, but it was a mistake going forward, we're not doing it.

[00:15:46] Speaker 04:
Would that have been okay?

[00:15:47] Speaker 00:
Well, I think it certainly would have explained their behavior more in the sense of providing some explanation for why they were denying it and that there had been a mistake made.

[00:15:59] Speaker 00:
But the reality is that the family provided information in that appeal letter in December of 2019 to say, you're wrong.

[00:16:07] Speaker 00:
This is a licensed facility.

[00:16:09] Speaker 00:
They have many therapists and individuals providing clinical services.

[00:16:14] Speaker 00:
There's no question this child is getting the services that he needs.

[00:16:19] Speaker 00:
And they said in that appeal letter, let us know if this continues to be an issue.

[00:16:24] Speaker 00:
And the next denial letter that comes down shifts the denial rationale.

[00:16:29] Speaker 00:
It moves to lack of medical necessity.

[00:16:32] Speaker 00:
And that's important, because as we argue, and you know this, we believe that Premier abandoned any ability to come up and argue that there is an intensity of services reason for denying this claim.

[00:16:44] Speaker 00:
or that there is a facility qualification reason to deny this claim.

[00:16:48] Speaker 00:
And there is good case law which we cite in the briefing to say you can't just willy-nilly jump from one denial reason to the other, receive information from the family or the claimant about why the first denial reason that you raised is not valid.

[00:17:03] Speaker 00:
move on to some other denial reason, and then expect the family to think that the initial denial reason is still in play and is valid, especially when you see the family, as we did in this appeal letter in December 2019, making real effort, providing specific, substantial information as to why this intensity of service or facility eligibility argument was not valid.

[00:17:27] Speaker 04:
Let me ask you this, of course.

[00:17:29] Speaker 04:
We're dealing with a risk of covered plan.

[00:17:33] Speaker 04:
We're not dealing with a court.

[00:17:35] Speaker 04:
There are some set rules about waiver, set rules about forfeiture, and what happens if somebody doesn't respond.

[00:17:46] Speaker 04:
It seems we have a slightly different context here.

[00:17:50] Speaker 04:
Your opponent seems to take the position that the insurance company deals with the family in this case just like a bunch of lawyers.

[00:17:59] Speaker 04:
and saying, you know, look, there's no medical necessity here, end of story.

[00:18:05] Speaker 04:
I gather your position is, no, if the family has raised an issue, the plan has an obligation to address what the family says, and if they don't do that, in effect, they're a stop to deny that.

[00:18:18] Speaker 04:
Is that a fair statement?

[00:18:19] Speaker 00:
I don't really like the word estoppel.

[00:18:21] Speaker 04:
Okay, but don't say they're stuck.

[00:18:24] Speaker 00:
What is becoming clear, and I see this in the Fifth Circuit, we see it in the Tenth Circuit with some cases that I've had there, the Ninth Circuit says this too in Saloma and Boonton, you have an obligation to carry out a meaningful dialogue.

[00:18:37] Speaker 00:
And the reason for that is we want to get rid of as many cases as we can when there's a dispute before we have to go to the federal judiciary.

[00:18:43] Speaker 00:
You don't want to deal with these cases.

[00:18:45] Speaker 00:
And the only way, the best way of ensuring that the number of cases that are presented to the federal judiciary

[00:18:50] Speaker 00:
is to ensure that there is a meaningful dialogue between the parties so that individuals who may believe that there's coverage and there really isn't a basis for coverage understand why their claim has been denied and they don't feel because they've been stonewalled like they have to go to federal court and hold the insurer accountable.

[00:19:10] Speaker 00:
So it's critically important and I think more and more federal courts both at the circuit and the district level have been realizing this lately.

[00:19:16] Speaker 00:
It's very important that the insurers and the plant administrators' feet be held to the fire on ERISA's claim procedure regulations.

[00:19:24] Speaker 00:
And the Ninth Circuit has said this for years.

[00:19:27] Speaker 00:
Of course, Boonton is over 25 years old.

[00:19:29] Speaker 00:
So one of the things that we need to do is make sure that insurers do that.

[00:19:34] Speaker 00:
So you have to look at the appeal letters.

[00:19:36] Speaker 00:
And if you look at the appeal letters in this case, I think there's no question that, contrary to what Ms.

[00:19:41] Speaker 00:
Payton indicates, these issues, whether they're intensity of service or facility qualification issues,

[00:19:46] Speaker 00:
or whether their medical necessity issues were raised.

[00:19:51] Speaker 00:
Ms.

[00:19:51] Speaker 00:
Paton said, for example, that there were no clear indications that the treatment at Catalyst was necessary and that the treating physicians had said it should be provided.

[00:20:01] Speaker 00:
Look at Dr. Glissmeyer's recommendation, his discharge summary from Second Nature.

[00:20:06] Speaker 00:
He says a return by AB to his home environment, quote, even with intensive outpatient therapy or school accommodation,

[00:20:15] Speaker 00:
would almost certainly result in significant regression and a return to his previous level of functioning.

[00:20:22] Speaker 04:
Let me ask you this.

[00:20:23] Speaker 04:
You switched over to Second Nature.

[00:20:24] Speaker 04:
I was going to get to that in a minute.

[00:20:27] Speaker 04:
Second Nature's own materials call it, and he quotes, wilderness program.

[00:20:32] Speaker 04:
The plan excludes wilderness programs.

[00:20:35] Speaker 04:
So why was it an abuse of discretion in that case for Premier to exclude any coverage or stay at Second Nature?

[00:20:43] Speaker 00:
Thank you, Your Honor.

[00:20:44] Speaker 00:
It's a great question.

[00:20:45] Speaker 00:
Of course, that goes to the core of what Second Nature's issue is.

[00:20:48] Speaker 00:
And here's the answer, because the stuff that is in the plan that talks about an exclusion does not talk about anything to do with therapeutic services.

[00:20:59] Speaker 00:
And the district court got it right in saying there was never any attempt by Primera to connect the language of the exclusion to the fact that Second Nature was different.

[00:21:12] Speaker 00:
It was a licensed

[00:21:13] Speaker 00:
outdoor behavioral health care center.

[00:21:16] Speaker 00:
It was licensed as an outdoor youth treatment center under Utah law.

[00:21:20] Speaker 00:
And Utah law makes it very clear there is a significant therapeutic component to this.

[00:21:25] Speaker 00:
This is not like going out and enjoying a camping activity or a wilderness activity where the healing properties of nature, which we all recognize are real.

[00:21:36] Speaker 00:
are experienced by people.

[00:21:38] Speaker 00:
It's not recreational.

[00:21:39] Speaker 00:
It's therapeutic.

[00:21:40] Speaker 00:
And that's the difference.

[00:21:41] Speaker 02:
But you're saying that if a wilderness program, a program calling itself a wilderness program, offers therapeutic services, it takes it outside the definition of wilderness program?

[00:21:53] Speaker 00:
It takes outside the language in the plan.

[00:21:56] Speaker 00:
One of the things that the district court noted is

[00:21:58] Speaker 00:
This reference to wilderness program quote unquote in the plan is never defined.

[00:22:03] Speaker 00:
Premier makes no attempt to make the distinction that we're talking about here.

[00:22:07] Speaker 00:
And the district court noted that and said,

[00:22:10] Speaker 00:
You know, there's a big difference between going on a camping trip or going on a tall ship's trip or an outward bound kind of a thing where there's no therapeutic experience specifically to the individual's needs by clinicians as opposed to what we've got here with Second Nature.

[00:22:27] Speaker 02:
There's also an exclusion for recreational programs.

[00:22:29] Speaker 00:
Yes.

[00:22:31] Speaker 02:
It looks to me, and I'm trying to understand this, the only difference between a recreational program and a wilderness camp exclusion program

[00:22:39] Speaker 02:
is that the wilderness camp offers some sort of therapeutic?

[00:22:44] Speaker 00:
Yes.

[00:22:45] Speaker 00:
Well, Utah law, when it defines outdoor youth treatment programs, says specifically, these are not recreational programs.

[00:22:55] Speaker 00:
So they're drawing the distinction under Utah law when they license these facilities to say, this is very different

[00:23:01] Speaker 00:
in our perspective, in Utah law, than a recreational program.

[00:23:07] Speaker 02:
Does the language of the plan exclude both wilderness and recreation?

[00:23:12] Speaker 00:
No.

[00:23:12] Speaker 00:
And that was something that the family did a good job in their appeal letter of saying to the folks at Primaries, they said, we fall under the definition of quote, provider unquote.

[00:23:23] Speaker 00:
And they never got a response from Premier to that argument.

[00:23:26] Speaker 00:
They said, look at the language of, quote, provider, unquote, under the terms of the plan.

[00:23:31] Speaker 00:
We fall under that.

[00:23:31] Speaker 02:
So wilderness program can be a provider under that.

[00:23:34] Speaker 00:
Totally.

[00:23:35] Speaker 00:
Totally.

[00:23:36] Speaker 02:
And the reason it's a provider because it offers therapeutic services?

[00:23:39] Speaker 00:
Yes.

[00:23:40] Speaker 00:
It's a clinical therapeutic program.

[00:23:42] Speaker 00:
And that's something, again, Your Honor, that was raised specifically, going back to the argument that we were talking about before about a meaningful dialogue.

[00:23:50] Speaker 00:
That was raised by the family in connection with the appeals for second nature.

[00:23:55] Speaker 00:
Never did Premier come back and address that, say one thing about that.

[00:23:59] Speaker 00:
They never denied that it was a quote provider.

[00:24:01] Speaker 02:
Well, they did offer to pay for the therapeutic part of the services.

[00:24:05] Speaker 02:
Is that something that's doable?

[00:24:07] Speaker 02:
Do they break down their services by the cost for the therapeutic part and the cost for the

[00:24:12] Speaker 00:
It's a good question.

[00:24:14] Speaker 00:
I've been doing this work for a long time, Your Honor, and what you're referring to there is called unbundling.

[00:24:20] Speaker 00:
It is referred to as you have certain bills for certain types of programs, an inpatient program like this, that are provided and expected to be paid and routinely paid by insurers on a per diem unit basis.

[00:24:34] Speaker 00:
Now, sometimes you will have insurers say, like Primera did here,

[00:24:38] Speaker 00:
Well, we don't buy the idea that wilderness treatment, wilderness programs are covered.

[00:24:44] Speaker 00:
So we're going to do, as Premier did here, we're going to let you submit individual claims.

[00:24:50] Speaker 00:
That is an improper behavior from a billing, healthcare billing perspective, number one.

[00:24:55] Speaker 00:
But number two, it really makes this distinction that we've been talking about, Judge Reyes, an important one because Primera knows.

[00:25:04] Speaker 00:
When they said that, they were implicitly admitting they knew that this program was providing therapy.

[00:25:10] Speaker 00:
They knew that it was something other than going camping or just going out into the wilderness and enjoying the healing properties of nature.

[00:25:16] Speaker 00:
They knew that it was a therapeutic experience, and they chose not to cover it as a program.

[00:25:23] Speaker 00:
And the district court said, you could maybe choose not to cover it and say to individuals like this family, we're not going to cover those programs, but you've got to make it clear and explicit.

[00:25:35] Speaker 00:
And that's how the judge faulted Premier in this case, that the language of the plan itself simply does not make clear the distinction that we've been talking about between

[00:25:45] Speaker 00:
a recreational program or a camping or a wilderness program that has... My question was though, can you unbundle it and submit the bill separately?

[00:25:53] Speaker 00:
That's not proper.

[00:25:54] Speaker 03:
Why do you say it's unproper?

[00:25:55] Speaker 03:
I mean, people deny claims partially all the time.

[00:26:01] Speaker 03:
So what's your authority for saying you can't unbundle?

[00:26:04] Speaker 00:
It's beyond the scope of the briefing in this case, Your Honor, but... That's okay.

[00:26:09] Speaker 00:
I can tell you this.

[00:26:11] Speaker 00:
The unbundling aspect is problematic because

[00:26:14] Speaker 00:
You either need to take the facility and its per diem charges as a whole and pay them or deny them.

[00:26:21] Speaker 00:
To unbundle them suggests inconsistency in how you view the facility.

[00:26:26] Speaker 00:
It's saying, as we were discussing, yes, there are some therapeutic elements to this, and we'll pick and choose what we want to pay.

[00:26:32] Speaker 00:
And then we'll have other aspects of the services that we won't pay.

[00:26:36] Speaker 00:
So these services that are provided on an inpatient basis and charged on a per diem basis

[00:26:44] Speaker 00:
they're acknowledged and well accepted within the health care billing field as properly being billed on a daily basis like that.

[00:26:53] Speaker 00:
I can't tell you more than that.

[00:26:54] Speaker 04:
You mentioned Utah law.

[00:26:56] Speaker 04:
What role of any does Utah laws take on second nature play in this case?

[00:27:03] Speaker 00:
Yeah.

[00:27:04] Speaker 00:
Well, I think it's an important role because it tells this, it makes this distinction, Your Honor, Judge Smith, about the difference between

[00:27:12] Speaker 00:
and a therapeutic environment and the language of the plan that talks about recreation or talks about camping or talks about tall ships, talks about wilderness.

[00:27:24] Speaker 00:
That is the clearest indication, Utah law, that there's a difference in terms of a wilderness treatment program that is licensed under Utah law as a therapeutic provider.

[00:27:36] Speaker 04:
So if I'm understanding you correctly, you're saying that because Utah law defines

[00:27:41] Speaker 04:
what some of these terms mean.

[00:27:43] Speaker 04:
And in this case, second nature is licensed under Utah law that primary is bound for definitional purposes by Utah law.

[00:27:52] Speaker 04:
Is that right?

[00:27:53] Speaker 00:
Well, I think that's a fair statement, your honor, for purposes of evaluating whether second nature is a quote provider.

[00:28:00] Speaker 00:
You look at the language of provider in the plan.

[00:28:02] Speaker 00:
They relate to it talks about licensure.

[00:28:04] Speaker 00:
Well, you got to look at Utah State law or whatever the state law relevant state law is to see if they're licensed.

[00:28:09] Speaker 00:
So there's a there's a relationship between evaluating licensure and evaluating.

[00:28:14] Speaker 04:
I guess my point is let's say Utah law says that a particular thing it means XYZ.

[00:28:22] Speaker 04:
Primera is a big plan.

[00:28:23] Speaker 04:
They had a lot of different states, but you're saying that to the degree second nature is involved here, Primera is bound by Utah law's definition of XYZ.

[00:28:34] Speaker 04:
Is that right?

[00:28:34] Speaker 00:
When the terms of the plan explicitly or implicitly refer to state law and say, in order to be a provider that's covered under our plan, you have to be licensed.

[00:28:45] Speaker 00:
Well, what that means is you've got to look to state law to see, well, are they licensed or not?

[00:28:52] Speaker 04:
Any other questions by my colleague?

[00:28:55] Speaker 04:
Thanks very much.

[00:28:56] Speaker 04:
All right.

[00:28:57] Speaker 04:
So, Ms.

[00:28:59] Speaker 04:
Payton, you've got some time left.

[00:29:04] Speaker 01:
Utah licenses residential treatment centers.

[00:29:07] Speaker 01:
The plan covers residential treatment centers.

[00:29:11] Speaker 01:
It does not cover wilderness programs.

[00:29:14] Speaker 01:
Second Nature is licensed in Utah as an outdoor behavioral program.

[00:29:19] Speaker 01:
It doesn't have the right license.

[00:29:21] Speaker 01:
That's the role of Utah.

[00:29:24] Speaker 01:
The wilderness exclusion decision that the district court came to was that because they also offered therapy, they weren't a wilderness program under the exclusion, which would absolutely nullify the exclusion.

[00:29:39] Speaker 01:
Why would the exclusion be in there?

[00:29:42] Speaker 01:
That argument also violates the rule against party presentation because it was raised by no party.

[00:29:48] Speaker 01:
at any point in the proceedings, both administrative and in the district court, is absolutely true that the facility can submit the therapy claims or any medical services that occur at the facilities, both catalysts and second nature.

[00:30:07] Speaker 01:
as individual claims, and there's nothing contrary to that in the record, nor is it true.

[00:30:14] Speaker 02:
Well, I understand they can do it, but if they were to go to the facility and say, we need these broken out, do you know if that happens?

[00:30:21] Speaker 01:
Does that ever happen?

[00:30:23] Speaker 01:
It does happen.

[00:30:24] Speaker 01:
And in this record, look at the provider or at the member's response on level two in the second nature appeal where they respond to Primera's offer on that.

[00:30:37] Speaker 01:
And they say it is insulting and it's condescending.

[00:30:40] Speaker 01:
That is their response.

[00:30:42] Speaker 02:
So you're saying you acknowledge that there's therapy that's provided at this program.

[00:30:46] Speaker 02:
It's simply because it's a wilderness program and it's set in the wilderness as opposed to a hospital room that you won't provide.

[00:30:53] Speaker 02:
Is that what it is?

[00:30:54] Speaker 01:
What we won't do is pay the room board and tuition at the facility.

[00:30:59] Speaker 01:
What we will do is the medical services, but we will not pay the tuition for wilderness services.

[00:31:04] Speaker 01:
And there would be no need for an exclusion if it wasn't arguably sometimes maybe providing things that were covered under the plan.

[00:31:13] Speaker 01:
The plan only covers medical services, the exclusions.

[00:31:16] Speaker 01:
are for things that might include some medical services but are not otherwise covered.

[00:31:22] Speaker 01:
A great example is the case from this circuit about the clinical trial exclusion where... I think you've answered my question.

[00:31:30] Speaker 01:
Okay.

[00:31:30] Speaker 04:
By my colleague?

[00:31:31] Speaker 04:
Your time is up.

[00:31:32] Speaker 04:
Thank you.

[00:31:33] Speaker 04:
Thank you both for your argument.

[00:31:34] Speaker 04:
We appreciate it.

[00:31:35] Speaker 04:
An interesting case.

[00:31:36] Speaker 04:
The case of Be-at-all versus Permanent of Blue Cross-at-all is submitted.

[00:31:41] Speaker 04:
And the court stands adjourned for the day.