the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court guy excuse me counsel is the question whether the bench trials are permitted or whether or well the district court has discretion as to whether or not to convene a bench trial in any given when you're dealing with these one thousand page arista records to be able to to office of the court if it's documents or if it's a bench trial on documents the documents that we believe are paramount in this case and there is li ordinary administrative review the court seems to conducting and you can have all of that it seems to me the issues where you're asking us to them differently to entertain the possibility that we would abandon the model of review on the administrative record and actually allow because trick or to supplement the record and to supplement not an issues of conflict of interest but to supplement it on issues of the merits so that for example you would have different facts and different medical opinions before the district court than you had before the recent the good sherry and what is the authority from either our circuit or with the supreme the insurance company at the time they made their decision but when you venture trial do other than allow counsel to point to parts of that record can make arguments and everything which you are able to do here that a bench trial is slightly different your honor in could that's exactly right your honor yes what's the purpose of that what you described as being able to do want to bench record is is nothing more or less than what you can do when before of the district court want should you be able to convince the district court to give you the amount of time that you think that would consume if the district court thinks that it's a good use of your time and in the interests of justice can take the morning down argue this case from the administrative record and the defendant can take the afternoon there's nothing that that prohibits that that you have to have a bench trial to do that and you can disagree your honor i just wanted to raise the bench trial as an option because frankly i believe there is clear error on this record for two fundamental reasons the st being a court misunderstood and misapplied the level of care guidelines here so a the nominee brief correctly points out there's really three levels of care for mental illness and mental illness is not a world that we all live and naturally it's it's it's a world that needs a little bit of explaining in the treatment is different than so you have inpatient hospitalization that are for individuals who are an imminent threat to themselves and others and a twenty four hour nursing residential care which is what jane needed in this case and it's for people who don't pose an imminent threat to themselves and others so they need the safety of a twenty four hour structure and then there's a partial hospitalization program which relevantly in this case you need the support network in the evenings and cited the correct i'd mind she applied the guidelines for inpatient treatment the guidelines explicitly states that in order for residential treatment to be medically necessary you cannot be at an imminent threat yourself and others the residential level of care bad line speak to treatment recovery and safe and effective safe and effective treatment and that's really exemplified her honor by harvard health terms approval of jane's initial admission to riggs and its approval just charged to a lower level of treatment because her parents were caring and supportive loving parents alone are not sufficient to allow someone to be discharged to a lower level of care and jane's  by a doctor whose name is not in the record and it was john bought before counsel was involved and that's mcintosh your honor yes thank you your honor so it was it's a it's an independent review that was done out back in early february without the benefit of a full record and what do you mean by independent review it's a doctor chosen by the commonwealth to review the record you're in the standards on one level of kid and and and and be argument that i'm trying to get you to would brass i don't know if the argument is correct or not but i think i understood those were  medically necessary for her to remain in rigs that guy who are in saying that in order to have can continue to stay at rigs arm cohen has the burden of proof risk if she was stepped down to a partial hospitalization program and the trial judge extensively addressed both of those issues and as i said she looked at the be indicative of the fact that she didn't need twenty four hours crusher and it's not just the court alone at the court below alone made these determinations to this started and concluding that could begin safely transitioning to parker hospitalization don't appeal that decision and under the guidelines that was sent to an independent n and the and he also concluded the same thing but notwithstanding all of those opinions which said that she could safely be transition work independently went through the even when things became more intention could safely navigate them circumstances that ins i mean this court said medical necessity is a factual determination and you know this either residential treatment or nothing and it's in residential treatment who are it is on a step down from that which everybody was recommending a partial hospitalization program which is an intense structure it's not living away from home twenty four hours a day bonded to intense psychotherapy at a hospital during the day and and th of said addicts heart in orissa case is a contract case and the guidelines say that it if it is no wonder medically necessary and that she can safely be transitioned to a lower level of care then that is what the contract permits were of acquirers and it's not just the district court making that finding it was five physicians as well and it's al  i'm happy to address the new fifty two hearing with a standard here i believe is abuse of discretion and i'm as we pointed out in our papers proffered delo expert opinions although there were there were opinions of post dated the timing issue most of them focused on the period that post david the administrative decision pilgrim on the st admission but he was focusing on the period under review for him which was june th on aug th and if you look at the medical records at the end of june riggs was finally able to saying and he was reluctant to prescribe medications because he was afraid she had a seizure disorder but they didn't take the steps to get her an e k g from january until june in june then comes back and she wanted to have it she wanted a diagnosis of the seizure disorder this is in the record because she thought that would be treatable and when she found out she didn't have a seizure disorder she deteriorated and that's what led to her recall makes a decision that she needed twenty forced our structure at this period of time and under the guidelines of harvard pilgrim had to live with that decision and it did and it paid for her nd admission but as as judge casper said that he does not address and he says he is focusing solely on the period between june twenty four and august  not on what was taking place in january and february this is exactly the which what she's asking for in a bench trial is exactly what the procedure is in this circuit which is to review the evidence and resolve conflicts in the end veterans and to make findings of fact and so on even if it's not waived she gets precisely what she achieves actually asking the court to do that she wants another bite at the apple but she is getting and not only forgetting that she's you having precisely the review that this court ordered in don't want this court standard back for the judge to review the expanded ministry of records the perhaps she made findings with respect to the to the additional medical opinions from dr harris and from dr rubenstein and the additional letters from d and she found that weighing all of that evidence that could safely be transition to a where level of care don't simply chose not to  report she has and that and that is the one expert report that she does not address and her opinion she doesn't cite explicitly to judgment or to dr rubenstein but the findings that she makes jane's parents are carrying only way appellate review can be effective is that this court understands how the district court came to the decision and while judge casper does that and many people just walking through the facts of this case needed residential treatment and while there were doctors and they think getting who said they'd change if not those doctors in every single one of their reports use the word acute symptoms and a twenty four hour nursing that