aptly noted below this is a sad case the record shows that she has a history of childhood sexual abuse suicidal depression crippling anxiety family conflict including drug addiction in her home so as a result in two thousand and twelve this led her to seek intensive outpatient treatment or i o p treatment near her home in san diego unfortunately this treatment was unsuccessful so in may of two thousand and fourteen at the recommendation of her treatment providers in san diego she was admitted to the residential treatment program at sierra tucson which is a facility in arizona that specializes in the treatment of people you see at the recommendation of her treatment provider is this a recommendation from the facility in arizona or from somebody else in san diego in san diego that she goes to i o p treatment in san diego and or just you get some residential treatment i would have to double check the record i believe she specifically recommended the syllabi but i'm not certain of that one of the arguments that the defendant is making is that there were residential treatments closer to san diego than the arizona and i'm trying to figure out where the recommendation came or the choice came to go to arizona i believe that came from her therapist in san diego and i understand that that's a contention that's raised but i don't think it's relevant in this case well it might or might not be depending on her motivation for going all the way to arizona and look at it looks like a really nice place on the web site looks like a nice place for every case i mean that's the that's the argument no that's not let's live between the lines of argument from the other side i understand but i don't think that's persuasive because if someone is receiving residential treatment and they have left their home obviously it's residential care and they're residing somewhere else so the fact that it's in arizona as opposed to oregon or california or anywhere is irrelevant at that point you're out of the bad situation that you're in and it's her right under the benefit plan to go to whatever facility she wants as long as it's covered and this one was so this decision was incorrect and that the district court's decision upholding that was incorrect how much money is a stake here it's about forty thousand dollars a year it was not ongoing but she was discharged at some point why why did her husband sign up after she is released saying he will be personally responsible for the bill i don't know the answer that question there's some hint in the record there's on advice of counsel deposit totally puzzles me i understand why somebody would say before the treatment is offered yes i'll do it because they're desperate the person comes in she's been out of there for almost two months at which point he signs and says i'll be personally responsible for and i don't get it well clearly record shows that she and her husband have a tenuous relationship you know the benefit plan comes from his employment maybe he feels some responsibility for it i'm speculating i don't i don't know the answer so i don't want to intrude in any way entirely around the issue of medical necessity because i think we all agree that even you know degrees that can really needed medically medical treatment so the question is what level of treatment did she need and also counsel what is our review of that decision certainly right that's correct so so the question is what's the right level and i'll get to that standard review in a moment and in order to understand what the right level was for kimberly we have to understand what these levels of treatment are on one hand we have residential treatment which is what she was getting and then we had intensive outpatient treatment which is what she had been receiving and which is what united in the district court contended that she could should have had this time around and  difference is this residential treatment involves twenty four hour living at a facility under continual supervision there's a physician presence there there's nursing staff all meals are supervised so if you have an eating disorder as she did that can be supervised and you need you have to be met immediately and then on the other end you have i o p treatment and this is a radical step down and i hope the treatment you have at home and there's no supervision and you meet with your treatment providers for a few hours a you didn't need this high of a level treatment you could have gotten this lower level of treatment but if you look at the record united's decisions are frankly all over the place at certain points they say you don't need this high level of treatment but at other points they say oh there's evidence that you were suicidal so you should've gotten a higher level of treatment and that's true and what i see from the other side what they're saying is listen if she truly is suicidal you better get her tested for that and if that's true then she needs a higher level of treatment but she was never a sister or suicidal ideation for being suicidal so that didn't happen but they've got to be right that if she's truly suicidal she shouldn't be in that residential facility she should be somewhere else that's correct so but the question is was she truly suicidal while staying in the arizona facility and the arizona facility never took steps and she never took steps to get tested just whether to julie was suicidal well i would disagree with that because the enemy you know as with all things of mental illness there are she's pressed when they investigate and they ask her further and they consult with her she admits well that's what i'll do if i get destruction but if if but i want to do it while i'm here because i wouldn't do that to the staff so and they made her sign a contract for safety so she agreed that she would not herself while she's in the facility so i think not to kill herself in the future right she signed up for the contract for safety that's what the facility was concerned about right so what we have here is a situation where residential was the appropriate level of treatment for it because if she was discharged she was clearly a threat because she had told people that she was a good series on that she was going to kill hers argument is that she was not only was resentful of all the appropriate level care for her but as also the recommended level of care and this goes to the district courts and united's contention that her prior treatment and that san diego had been quote effective this is really the lynchpin of the district court's argument was you don't need this residential treatment because you have had it before and that worked but this finding was and this goes to judge on this question is was clearly erroneous if not supported by the record the record shows that while she was in ip treatment in san diego that she continued to restrict in bands and she had multiple safety assessments and welfare checks because of her suicidality she couldn't follow her meal plan implement coping strategies for eating appropriately kimberly or self said that she didn't feel like she had made any therapeutic progress while she was you know so in other words the happy program had been effective to the extent that her symptoms  outward expression had decreased but her underlying problems are still the same they never went away and never treated that effectively you can you point me to where this is not challenging you i just want you to point me to where in the district court's opinion the district court concludes that her i o p treatment was effective sure this record does it i believe in two places ok excerpts of record at thirteen here are th to review issue that's one of the clearly erroneous findings and i think that's the primary clearly erroneous finding was that her treatment had been effective there when the record i think very clearly shows that it was not the second thing i'd point out is that the district court heavily relied on kimberl residential treatment and on the contrary both the guidelines which are united's internal guidelines that they use and the american psychiatric association guys they both require medical stability in order to receive visitors let me ask you the question in this way  she's being treated as an outpatient with this so called i o p and as i read the record it's not doing great it's not it's not very effective but that's what she's doing the home situation deteriorates she's got a son and the son's girlfriend who are heroin addicts living at home the girlfriend starts accusing the son of misbehavior the father her husband moves plea because he doesn't want to get caught up in the history onyx with respect to the girlfriend and get accused so life goes life goes to hell at home and that contributes to the fact outpatient situation isn't working very well because you can be an outpatient and you're living at home and the home situation severely deteriorates as it does if that's the because the home situation and their treatment is getting even less effective is that a sufficient reason for why now and why then the residential treatment is appropriate under the policy yes answer is yes and and united though it's not really a medically medically it's not a medical change it's a home situation change sure let me explain why united and the district court seem to insinuate without explicitly saying so that the reason that she went to residential treatment was just so that she could get out of her house and that's clearly not the case because she clearly has a long history of mental illness and what happened here exacerbated that and if you look in  guidelines or if you look in the a p a guidelines they both say that poor support at home can be a qualifying factor for bumping up to residential treatment in fact b h is guidelines saying this is an ex at sixty five this is an element that supports residential treatment psycho social and environmental problems that are likely to threaten the member safety or undermine engagement in a less intensive level of care that's exactly what happened here she was receiving outpatient for united health care let me first address the question of the effectiveness of the outpatient treatment in san diego because the record does indicate that it was effective and the district court made a specific finding and this is from the eating disorder center of san diego and it's dated july seventeenth twenty thirteen and it says something about the record is very dense which is the reason why the standard of review in this case has to be for a clear error the district judge went through this record very thoroughly  issued a fifteen page very detailed opinion made factual findings and i think the fundamental question that this court has to reach is the standard of you has to be clear air on this point of the effectiveness i'll quote what i'm referring to under fifteen forty three of the you know there are judicial because i've got a lot of stuff here but i don't have them it's a very difficult record to go through it's like seven volumes so it's it's got these a magnifying glass to get through it but this is what i'm quoting  indicated that her bingeing has decreased and she is not over eating she is making better food choices she is less sedentary and walking to three times per week she was occasionally restricting during the day and b and bingeing at night but she is no longer engaging in those behaviors she is no longer actively engaging in compensatory eating behavior such as purging or using laxatives or diuretics no acute medical instability was described the patient is not treatment yes i think that he went to the then there was still it was almost a year i believe which you went to the sierra tucson facility and we have no other reports as to how the lp is working after july seventeenth two thousand she was discharged from the i o p she had gone through i think a total of sixty some sessions where she was seen intensively for two hours a day until she was making progress so i think the question in the district court didn't she go back to that treatment approach the outpatient treatment and all of a sudden she wants to you know appear and be admitted into a residential facility i think you have an answer my question would i want to make sure are there no further reports as to how she is doing and i will be after july seventeenth i think that's all that i've seen again the director is very dense i don't recall anything more recent this is a rancher's you don't recall i ok i don't recall i think this is what that statement was when district court reviewed the reports of six board certified psychiatrists who said that the appropriate level of treatment was not residential that that's a factual finding that this court has to defer to in terms of her suicidal tendencies while she was at the sierra tucson facility the only time that she expressed any thoughts of suicide was when the claim was denied when she was told that she was not going to get united health care to pay for those benefits but if you look at the rest of her status year or two since she's stable in the sense that she's not reporting any suicidal threats and we cite in our pelleas brief the various portions of the record where she nurses notes indicates he's not suicidal where are the patients on sheets of patients interviewed every day and have to describe or symptoms of patient doesn't state that she's suicidal those and she had been suicidal i'm going to visit it to your client if she had been th and if you look at the opening brief the only issue on appeal that they raise i think there is stop the claim otherwise is that the reason for the treatment at the residential facility is because she was suicidal the the argument was not that she had a t v and eating disorder or that she was depressed or etc it was all focused on the suicidality that's how the case was tried well i'm reading the statement of issue in the blue reeve did the district court her and finding that mental health patient did not need residential treatment when the record demonstrated she would commit suicide if she were released not if she were suicidal in the residential facility released that very that is not inconsistent with her being there appropriately right right and in my response to that is that only time that she said she felt suicidal tendencies was after the claim was denied during the rest of her stay there she was not suicidal the physician who interviewed her when she first went to sierra tucson dr sit her evaluations very clear there's no suicide ideology and the overall record does not support there's no clear error here in judge miller's findings judge miller did his homework on his case it's a very extensive record and he wrote a very detailed statement of decision insight if it's on the recommendation of attorneys perhaps they were trying to seek a recovery well use it as a vehicle do it well you know he i think it's your brief that says apparently on advice of counsel now what's your what do you know that i don't know i don't know anything more than what's in the record i don't know which counsel advised her to paya it can't happen two months later i am not certain not privy to her discussions with counsel or exactly where that frankly comes comes out in the record to me i think attorney's fees drag these cases we all know that and so so if they recover they get attorney's fees that's this part of the deal that is my spec and it's speculation no no i'm just asking the law if they recover they get attorney's fees they would get attorney's fees subject to not medical records from the i o p facility it's to united's internal claim notes so this is not unfortunately straight from the horse's mouth now you would say you said that fairly quickly don't feel under time pressure i didn't quite claim so i'm not saying that it's inaccurate but at the same time but it could be altered but it's not a doctor's note no it's no it's from the claim adjuster which i assume is taken from a conversation with ray ok so i got it ok but at the end of the day is there anything well actually the same question i got i'm afraid i'm sure a straightforward honest answer but opposing counsel didn't recall are there any later evaluations and she doesn't go off to arizona for another year or that is there are there any evaluations of i or p after july seventeenth two thousand and thirteen in the record i don't believe there is you ok so the same answer ok and as far as suicidality goes i would be the first to admit that there are inconsistent reports in the record regarding suicidality at the time she's admitted i think that's frankly unsurprising  given mental health patients often give inconsistent reports of their mental status it's entirely conceivable that she would tell her doctor one thing and medical staff something else which would lead to its sister ports but then they i don't think it matters because it's undisputed that she made this threat i don't think counsel just disputes that she made this threat that she would go home and kill herself if she were discharged so that's not disputed and second of all suicidality is is not a litmus test for residential treatment which is something i've already addressed we're our contention is not that it's in this case it's not that she was suicidal but that she qualified for residential treatment so even if counsel is correct and she was not suitable why did you write your statement of issues the way you did the suicidality is the best evidence that