kinds there is plan at the time actually excluded all residential treatment except for what the and termed short term crisis residential and so at a minimum there's a factual dispute about  whether whether the kaiser failed to have a functioning system to refer people to resit a little bit suffering from eating disorders to residential treatment except perhaps in what the plan termed an acute was hospitalization it was psychiatric hospitalization it was a residential treatment you know i suppose the elephant in the room is that he was referred to center for discovery in september  fourteen after he was just charge from herrick psychiatric hospitalization but and a minimum there's a factual dispute about whether center for discovery was nothing more than this kind of short term crisis residential treatment that the plan terms provided or we believe that it was and that this one time agreement to pay for it doesn't indicate that kaiser would have allowed it doctors or did allow its doctors to refer patients to residential treatment if they if it was medically necessary and not what they called a new cue crisis and nd and maybe even more importantly  well but this is not about you know whether he was participating in intensive outpatient he wasn't because it wasn't working for him and he was very ill this isn't a blame the areas and i have not found that in the record well thanks but they they did put up barriers in that doctor has let said she had no clue how to refer somebody to a higher level of in days of the request was for himself and his family no where is the where is the beria he would not cooperate once they got down he went through all five stages that isn't what the the testimony was the testimony by dr rao the deposition testimony was that she thought that he wasn't interested in in treatment through kaiser and that's contradicted by the testimony the deposition or the declarations of both i and his mother and it's also contradicted by e mails in which it's clear that both that i am and his mother were and fifteen you know imagine a cancer patient having to wait four or five months or longer to get treatment eventually his family just had to do what they needed to keep him alive his has physical and mental health were really deteriorating at that point he himself didn't have the money to pay for it you know his his family had to basically beg borrow and steal to japan i think pay themselves for this treatment and essentially you know there is there are many disputed facts about whether the insurance company simply frustrated them for so long that they had to that they decided to private pay and indeed in this circumstance kaiser should be able to say that they've met their duty to provide mental health benefits you know just by the fact that he had had a lot of treatment and it hadn't been successful that should not have been a reason to say he's not entitled to residential treatment and to not to never even make a referral for him in late two thousand and fourteen when he repeatedly asked for it and really at a minimum there is a factual dispute about really every aspect of this case about whether the plan by its terms provided for residential treatment except for acute psychiatric and short term crisis residential whether you know whether he was ever referred program but was instead shorts to program well i would say the plant terms themselves which are at or eighty four psychiatric crazy says number one and number two the declaration from i am himself that he was told that this was a one time thing and number three sort of that maybe this is circumstantial but the fact that what the fact of the matter is he was coming out of a psychiatric hospital he was coming out of hospitalization and that supports that this was the this is what the plan provided which was short term crisis intervention for stabilization of an acute psychiatric crisis and and i suppose also the fact that he couldn't get the street later on when he wasn't hospitalized he only got he went to twice just psychiatric hospitalization and finally he got better when his family was forced to private pay for residential treatment that he needed all along in that that you know he had no holiday fees that would prevent plaintiffs or anyone else from getting residential treatment to the contrary he had covered members residential treatment for years including plaintiffs residential treatment center for discovery just months options and but even it as of counsel suggests there was some factual dispute between plaintiff and his mother on one hand and dr rao the treating providers on the other hand even if there was some misunderstanding and plaintiffs felt like he had asked for a referral even if he didn't exactly do that explicitly the district court correctly found that that's not a material dispute of the plan or of a recess and on this record reversal would would essentially require a pretty drastic expansion of what constitutes a breach of duty and plaintiff points to nothing in the law that permits this i do want to briefly respond to language in the operative plan at the time referring to short term treatment operated in any way to prevent anyone from getting residential treatment and there's no there's also no evidence on the record whether the treatment the plaintiff got there was intended  term or long term he ended up discharging himself after just a few days because he was unhappy with the treatment but it was approved for for some sort of longer period and the t payment but they point to in the record for that is helen's own declaration where he is referring to a statement that was allegedly said to him by someone at her hospital upon his discharge so this is a double hearsay statement allegedly made by someone who is not affiliated in any way with the kaiser system about what kaiser might do in the future if if he were to not succeed in residential treatment that is simply not admissible and doesn't create an issue of fact and specially doesn't here given that the evidence is undisputed that that page he had standing hunchbacks with center for discovery this means there's a existing contract that multiple members can be referred to so the evidence certainly doesn't suggest that this was some sort of unique one time arrange your honors i'm happy to answer any questions that the panel has otherwise i'm happy to y my time would you line from what level of residential treatment you think is authorized under the plan because the plan of this climbing really that if you look at the language is limited to short term and tell me what other language you have in the plan that you think would provide for all types of residential treatment well being here's a response to that your honor that is before tw fifteen that the language in the plan referred to short term residential treatment for an acute crisis now that language was later clarified it's not so much changed in substance  clarified to say that that all medically necessary residential treatment is covered so the question is what does that mean before two thousand and fifteen when it was changed and b the thing is the health plan does not define short term doesn't define acute leave those questions up to the determination of the treating providers who are doing the refer and the evidence in this case is that that language did not operate was never used by anyone in the metal groups or in the plan to limit the scope of residential treatment but you'd have to agree is at least some of that language there are some qualifications a to the availability of residential treatment on the face of the language it looks like there is there are some qualifications to the scope of residential treatment what i think is important in this case is that even if there is some sort of even essentially knew that any of this was happening until the complaint was raised to the plan a year after his discharge and so even if there's some issue about what is presented with a request for coverage for refer the appellant to residential treatment because of some sort of distinction between short term or long term treatment i believe judge kelly made that a question i was going to inquire as to whether   she actually testifies quite clearly that she understood the process for referring eating disorder patients to higher levels of care including residential treatment was to refer them to the eating disorder specialty clinic as are easily explained in our briefing that makes all the sense in the world because eating disorders are very complicated it's not it involves those both mental health issues but also physical issues and it requires really a multiple multi disciplinary team to be able to diagnose and determine where someone really should be ideally and so because a medical group has developed this this system where they have a clinic with the specialists  perfectly suited to do this to determine where someone should be and dr rao testified to her understanding that that's the system there was no confusion on her part as for a doctor  a portion of her testimony that they refer to for her confusion involved her confusion about how to refer the plaintiffs to in patient care there was some confusion at the time about how to get him into in patient hospitalization urgently that's a different level of care from residential treatment there is there's not evidence in the record that she was confused about that process and if she was confused  about the inpatient treatment again that makes sense because she testified pretty clearly it was not her role within the system to be referring members to residential treatment for the questions i am testified she didn't have a clue and was still unsure years later at the time of the deposition how to make referral for a higher level of care for eating disorder patients patien is that because you are responsible for the treating physicians understand your misunderstanding yes they are because they were supposed to have criteria they didn't have any criteria both the thirty six deponents and the one for highs or foundation and the one for the medical group testified that they had never developed any criteria or standards and that the doctors for referring people residential treatment for eating disorders and the doctors were just pissed of figure it out as part of the culture of highs or as they went along on and in fact they didn't figure it out here and they never made a re or foundation is trying to say it's separate but that's not what the plan provides it provides for this integrated system and these are kaiser doctors that's how the whole system works you know essentially there's a lot of finger pointing here between kaiser foundation and the kaiser at the kaiser doctors there's a lot of strolled or shrugging but you know i will i would say that risk and the mental health parity laws require a lot more than that i mean in fact both the federal government and in legislating a mental health parity law and the state of california in twice legislating about mental health parity you know explicitly said they wanted to remove barriers for the treatment of people suffering from mental illness and such as anorexia this case is really about getting hisor to live up to these requirements so that its members can get the treatment that they need to recover live productive lives and that the plaintiff i am here was never able to access intil in late two thousand and fourteen when he needed that treatment and was only able to get that treatment by having his family hold the money together private pay for it in march of two thousand and fifteen months and months after you know his his doctors st said agreed that he needed the treatment so you know i would say there's a lot at stake here not just for plaintiff i am but for many other people suffering from eating disorders and i think i'm over my time so was the court has any further questions thank you thank you counsel and thank both of you for