minutes and then each of the each of the a police will argue for fifteen minutes each then you have ten minutes loss and one preexisting conditions were legal the treatment that they needed for their hearing loss could be excluded from coverage as preexisting sure they could buy health insurance but it would not cover their disabling condition the key reason that they needed health coverage the affordable care act was supposed to change all of that it was particularly focused on ending preexisting condition exclusions and other barriers to comprehensive health coverage for americans including americans with disabilities and people with serious health conditions but after the affordable care act took effect kaiser health plan and regents the two defendants here failed to remove the few disability based exclusions that remained in their health insurance plans the hearing loss exclusion at issue here functions like the now outlawed preexisting condition exclusions appellants still cannot get coverage for the treatment of their disabling hearing loss as hamburg let me stop you because if you don't mind i have a  c problem understanding what your theory of discrimination is it seems to me your allegation is that anyone with a hearing loss is disabled is that your position you know we cannot tell if kaiser and regions have applied this exclusion to non disabled people because we didn't get to discovery but it is possible that everybody they've applied it to has been disabled under the blue shield quote plaintiffs and other members of the class have been diagnosed with hearing loss comma physical impairment that limits a major life activity that to me is saying anyone with any sort of hearing loss regardless of how maybe on the face of the plans without any discovery maybe it applies to non disabled people we should have the ability to amend the complaint to address that issue we never got that opportunity in the trial court  because whether it applies to only disabled people or a handful or even more than a handful under section fifty dollars for discrimination can still be alleged and so i want to  ask you a follow up clarifying question the complaint be amended complaint that i'm looking at are two hundred and seventy seven proposed a class of all individuals who have required  require or will require treatment for hearing loss other than treatment associate it with the cochlear implant so i take it by your answer to judge personnel's question that you're not asking for a class of non hearing loss individuals implicit in this proposed class definition are only individuals who suffer hearing rock that rises the level of disability right that is correct your honor if that's the case is there a fit problem for proxy discrimination claim your honor i don't believe so because  just as in rhody vs bond today the fit between the hearing loss exclusion which is only going to apply only to people with disabling hearing loss because if you don't need if you close if not the same the reason i asked that is because part of the argument that you're serving on appeal is that hearing loss is a proxy for hearing disability and so i don't know because there aren't allegations like applying as to whether there's an overbroad problem here because i don't know what subset of individuals who suffer some degree of hearing loss are actually hearing loss so you're right your hon but that is also something that if we had discovery we and we found after discovery that we needed to narrow or modify the class definition we could do that's done as a matter of course but here we don't know who keyser and regions have denied under this exclusion because we haven't gotten any discovery but at the motion to dismiss stage the fact that the exclusion might plausibly plausibly be applied to non disabled people who need hearing loss is not a reason to dismiss the case in  vs vontae that case involved a county that sought to close a rehab hospital that serve predominantly but not exclusively people with disabilities and that the court said  that eliminating necessary medical services for group that is predominantly deceive while continuing to provide the medical care required and sought by non disabled medica recipients is a five hundred and four violation and that's because it disproportion the cutback in rhody just like the exclusion here targets and disproportionately burdens the disabled and because of that it's not the sort of facially neutral reduction considered inchoate and i want to just kind of step back and talk about the hearing loss exclusion here as we alleged the hearing loss exclusion takes outpatient services durable medical equipment prosthetics surgery things that are all covered is the h b they're all covered under the plans one medically necessary for every other condition and they bundles them together and calls them something new calls them hearing treatment in order to exclude it and what's telling is the one piece of evidence that we got because we didn't get discovery was submitted by them under the regular medical benefit so there's nothing special about this treatment at least on the face of it that it that sets it apart from our patient office visits durable medical quitman prostheses  surgery the only thing special about it is the organ of the body it operates on but that this services themselves are otherwise covered but for the exclusion design is a form of facial discrimination the nd thing that the trial court's got wrong was they claimed that there were no there was no denial of meaningful access to benefits because hearing loss treatment is something special that's not covered by the plans and the rd thing that they got wrong was fundamental alteration on a motion to dismiss cannot decide fundamental alteration as a matter of law i want to address each of those three things and your questions but i want to start with a little bit about the affordable care act it represented a massive change in the insurance market and in fact it required all of these health plans to rewrite their policies it was can congress's intent to make this a dramatic change in coverage and it was particularly focused on any discrimination it ended discrimination in how insureds with disability get in the door to coverage so it eliminated preexisting condition exclusion clauses it said insurers can't charge more to people based upon their health conditions and they can't drop them based upon their health conditions but once in the door congress made sure that insurance got comprehensive coverage  nondiscriminatory fashion and they said there's got to be these ten broad categories of coverage right so they mandated certain categories of coverage but providing those categories of coverage was not enough that you had you can't just check the boxes you have to make sure that the coverage is designed in a way that is non discriminatory and that each b s central health benefits cannot be denied on the basis of present  predicted disability and then congress went in and they specifically eliminated some of the most pernicious forms of discrimination on the basis of disability and lifetime and annual caps on coverage which is a very thing that had to kind of hone in on that for a minute there is no dispute playing appellants agree that section fifty four grounds and enforcement mechanisms apply to section five thousand and fifty seven there's also no dispute that appellant's are persons with disabilities covered under section five hundred and four and that the two insurers have to comply with it the only dispute here is how this court should interpret the plan  therefore has never applied this court found that the eighty eight doesn't apply to private insurance and wire versus trying to century and it makes sense that the congress would not incorporate the a da because the a d a s insurance the argument that the about the exclusion exclusion is a form of facial or proxy discrimination and it's facial because it calls out the part the trait that is the source of the disability in its very language and even choate said if you if you call out the protected trait that disproportionately impacts people with disabilities that itself may be the grounds for a five before violation nd meaningful access is denied rather the court  its facial discrimination proxy discrimination or disparate impact discrimination it has to reach this question are more meaningful access to benefits denied and each owed gi us very clear guidance it's meaningful access to benefits means access to the benefits offered by the entity but even show it says the entity is not free to categorize the benefits as based upon a disability in order to avoid coverage it says quote the benefit itself of course cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they're entitled under cho benefits that are divine defined based upon a trait that the handicapped are more likely to have could be a section five hundred and four violation and that's exactly what we have here in the insurers have bundled together otherwise covered  outpatient office visits durable medical quitman and surgery in call that hearing loss treatment in order to exclude it but it appears to us plausible is the materials that kaiser submitted that when they cover the service it is covered under the generic benefits of outpatient office visits ambulatory surgery visits and so on are you are you arguing for disparate impact theory which hasn't not apply with the same clear lines in disability discrimination as it does in the other kinds of discrimination but it if if this court determines that we did not plead it we think we did we we pled disability discrimination but if you think we didn't we should have the opportunity to amend the pleadings accordingly this bumbling together is actually something that we have challenge  under the mental health parity act in z d versus group health the predecessor to kaiser they had bundled together speech an occupational and physical therapy services into a new category of benefits nor developmental therapies when they were provided to treat developmental disabilities and they excluded that at the same time they covered speech and occupational and physical therapy for other conditions that was found invalid under the washington mental health parity act but it would be invalid under section five thousand and fifty seven dollars here today and then finally under fundamental alteration that just simply cannot be found on a motion to  dismiss it's a fact based fact intensive inquiry and but it's clear that the judges were concerned about cost and let me just say this although we can't tell without whether an entity can withhold medical benefits at least in the context of providers who are trying to avoid treating people with disabilities that standard is that you have to have a bona fide medical reason and that standard was picked up by the federal regulators when they said you have to have medical and scientific reasons for the exclusions and it's consistent with how health insurers make decisions in the st place they decide medical necessity they decide whether things are experimental or investigation will they decide whether to cover things in general based upon medical and scientific information and so even if they have this  exclusion it's still possible for them to apply it if they have a bona fide medical reason but they haven't come forward even in the motions to dismiss with a bona fide medical reason for the exclusion instead there is a lot of discussion about cost without any evidence and insurers if this court were to remove the exclusion and sure still have many tools to manage coverage and cost they case where cost is the reason for not covering developmental delays services and at the same time the plan is saying that cost is the reason they can't cover it they expanded coverage for speech occupational physical therapy to treat other conditions so you have to look at cost with evidence about what the plan is doing overall and finally what we know publicly about this benefit is it's not that expensive to month and when the washington state public employee benefit plan a plan administered by regents at the same coverage it was estimated to cost just fifty dollars per audiology visit and three thousand dollars per hearing and so the public information that's out there reveals it's not a big ticket item it's not something that's going to destroy health coverage as we know it as alleged by the  insurers so in conclusion unless your honour's have any more questions congress intended people with disabilities to be brought into this the comprehensive coverage that everybody else gets under the a c a and to receive that coverage in a nondiscriminatory manner arbitrary disability based exclusions are no longer permissible in plans that regulate the way this case should be remanded to the district court and allowed to proceed to understand what appellants are asking this court to do which is something that the state of washington and congress refused to do which is to mandate coverage for a special type of hearing aid and it we found out from that amicus briefing that they even lobbied the washington surance commissioner to include it and when the commissioner issued his regulations did not and so i think it's important to understand comprehensive coverage under the a c is not in a more st term it is a very specifically defined term which is essential health benefits which the states which have been that delegated to the states the states then tell us what essential health benefits are there's ten categories and they specifically explain what they are and in washington the kind of hearing aids that are subject to this lawsuit are not part of that comprehensive coverage no it is absolutely true and we agree that essential health benefits have to be provided on a nondiscriminatory basis  comport with the rehabilitation acts actually five o four for disability discrimination and that was what the th circuit clearly said which almost every single district court has found and so we're squarely within section five  understand what is the discrimination how do we evaluate that and for a prime a faster case and by the way that was the only claim that they pled which was facial discrimination very clearly it was facial discrimination and then it was facial discrimination not based on application but based on the language of the exclusion itself nothing else and so there is no need for discovery this court needs to simply look at the exclusion and decide if it's discriminatory under section five  case elements of five or four include otherwise qualified individual the disability was subjected to discrimination in a program that accepts federal funds in such discrimination was solely by reason of a disability that's important section and four is different than ac and others in terms of the causation has to be solely and as judge president pointed out and i think counsel conceded in her argument that the concept of hearing loss is not necessarily means someone has a disability well that fails right away by the way this is not a quote unquote hearing loss exclusion that is what plaintiffs have characterized as this exclusion covers hearing aids certain types of hearing aids kuechly or implants exclusion a disability based exclusion this is we're talking about facial discrimination all in a minute get to officially neutral but for a facially discriminatory claim they have to show that it's a disability based exclusion and they can't do that why because it's much broader than disability and i think counsel can see that hearing loss itself is not a disability even people that need treatment for hearing loss is not necessarily disability there's many people who have mild hearing loss that can benefit from amplification type hearing aids are they disabled they have a substantial limitation hearing and so it fails for that reason alone but i think the other issue is that  the fact that this exclude the so called exclusion also gives coverage to people that have significant hearing loss who perhaps would be disabled and so we have a two part reason why would there is not a disability based distinction  one the class of people that it excludes is much broader than the disabled into it covers the very specific class of people that they say are being discriminated against for certain types of hearing aids so we have a two part  situation there and it would be like saying if you don't get a vision benefit then that means that it's everyone who needs vision treatment is disabled i mean that's they're not saying that for hearing loss and it shouldn't be it just isn't common sense and so the class definition i think is a little bit of a red herring because they have to prove the element of what does discrimination mean it has to be a disability based distinction and because they can't do that from the face of the complaint that's why we say they should not have yes i'm sure they've been entitled to amend their complaint to limit their claims to people with such a serious level of hearing loss that interferes with wife activities it would be futile your honor because how could they ever prove that it was a disability based distinction that they have to show that the exclusion that they're trying to say is invalid has to be based on a disability based distinction it doesn't matter who's in the class they're saying that is the facially discriminatory item and because they have conceded that it's broader the exclusion itself is broader than just covering hearing disabled and it also at the same time because it there's a benefit there covers hearing disabled for some part types of hearing aids a memon of the complaint will do nothing it will not help them on their facial discrimination or what about amendment of the the st is a pure disparate impact theory and that is where there's a disproportionate impact on a on the disabled such that the benefit has to be changed so that you have to address the special needs of those individuals that's a that's a i'm call it the pure disparate impact that is directly what the th circuit said was not recognized in the law it is also what the alexander versus c was a bridge too far in terms of applying disparate impact to section five hundred and four we also have section five hundred and four itself saying it has to be solely due to disability and so it almost begs the question of well can you a disparate impact type of discrimination we've got crowder crowd crowd our circuit so we don't have to follow the six circuit the six circuit also has its crowder equivalent the th circuit also unlike counsel's assertion the th circuit absolutely provides the meaningful access under five or four and recognizes that in a does so it's right in the opinion in fact of the cotton berger case cited in doe and the ability center versus city of sandusky so there's a separate type of disparate impact claim in this is the meaningful access claim so there's two types of claims and they get mixed to match and i think it's really important to keep them separate because the meaningful access claim which crowder that i circuit and the th circuit both recognize is really you've been denied  meaningful access to a benefit that everyone else gets and the example in crowder was the quarantine of seeing eye dogs that was a generally applicable policy applied to all dogs but the blind who needed their seeing eye dogs to go to the services that the government offered parks libraries etc did not have meaningful access to those services the th circuit completely agrees with that the the remedy for that is a is a reasonable accommodation and in the six circus decision it says it specifically calls this out and it says the plaintiff in that case did not plead reasonable accommodation and therefore the court did not consider it it did not say that they disagreed with meaningful access so now we get into meaningful access and i think this is another futile amendment if it if it would be allowed because again you have to look at what is what is the benefit they are being denied we know that the benefit that they have to be legally offered is what the comprehensive coverage essential health benefits are have they been denied that no they want to change the benefit that's a very different they want to go back to the pure disparate impact they want to change the benefit they don't want meaningful access to a benefit that everyone else has no one else gets this benefit whether they're disabled or not disabled and so i think that's a very fundamental distinction  that has to be made there's there was some argument in the amicus about access to the access content dichotomy and the they made the the argument that  nobody is being denied access to the plans which i think everyone agrees but the content has to be changed because it disproportionately affects certain classes of disabled and if we run this that's a bet's a pure disparate impact argument that is not a meaningful access argument i mean you can address it up as a meaningful access argument but what are you getting access to you want to change you want something different than what everybody has and if we look at how this would impact the current regime the current state of insurance under disparate impact analysis why would a health care plan be allowed to apply medical necessity criteria because certainly that would impact people that might be more seriously sick why would be they be allowed to do apply experimental investigational exclusions that also could apply to people who would be more disabled more sick than everyone else so all those facially neutral things that were supposedly the cost mechanisms that could help pay for these things those w i think the for the facial discrimination that we have here which is the only one pled i think the key is that it's because there is not a disability based distinction to the exclusion itself there cannot be discrimination it is not solely due to to disability therefore that claim should fail and on the issues of meaningful access which is a facially neutral claim which has not disparate impact claim which has not been alleged that claim should fail because they don't want access to something everyone else says they want the other kind of disparate impact pure  good morning i'm a please the court my name is marion norton and i am counsel for regions blue shield and can be a health solutions in this matter an insurance policy that excludes coverage for all forms of hearing care does not discriminate on the basis of disability under section five before the rehabilitation act and by extension under section one thousand five hundred and fifty seven of the affordable care act we put some discussion here today but plaintiffs arguments to the contrary are not supported by any cases statutes or regulations section five hundred and four as counsel for kaiser mentioned precludes discrimination solely by reason of disability solely by reason of disability  essentially a question of cause ation is the denial of the benefit or discrimination solely by reason of disability and a facially neutral policy as we have here a facially neutral exclusion applies equally to all policyholders all individuals disabled or not is not discriminatory under the rehab act and in order to find that it somehow might be discriminatory the court would have to find that every person who seeks hearing care including routine examinations is disabled and not simply as the questioning earlier hinted at not the case hearing loss is a medical condition that can in some circumstances result in a disability but it's certainly on a spectrum of impairment no plaintiffs made mention this morning and have in their briefing to sort of the same class of services are otherwise available to other individuals routine examinations surgeries exce and it's indeed true that there are other types of routine examinations other types of surgeries and other types of durable medical goods that are available under this policy for other types of conditions but not all other conditions not all  medical equipment not all surgeries and not excluded here on the basis of any sort of disability there's other things that are excluded from the plan as well and the exclusion here as i said relates to all which is exactly what the district court held and the district court rightly held that the plaintiff's claims were denied because the benefits they sought were simply not covered by their plan not because of their disability plan persist participant with hearing loss is not to a plan participant with hearing loss that's not disabled would still be denied coverage for that same hearing loss related service for treatment now passage of the for don't care we've heard a lot about and i'm going to try to skip around here and avoid what you've maybe  already heard in other contexts of that but passage of the fordable care act no one denies it marked a landmark shift in health care in the united states we've heard about essential health benefits we've heard about it remove the prohibition on preexisting conditions which that you know no one debates that was a big deal and it did change health care law and it actually did apply for the sort of expanded the scope of entities to whom this these anti discrimination laws would apply so yes for the st time any program or activity any part of which received federal financial assistance was subject to the discrimination and to discrimination provision so in providing the essential health benefits providing these policies one cannot engage in discriminatory behavior we certainly don't dispute that what we do what the a c a did not do is create sort of a whole new universe of discrimination law it didn't do anything of the sort and as you've seen and go and are supplemental briefing on the doe and we've heard references here today as well and the a c l u merely incorporated this the four statutes and the standards that were under those statutes and plaintiff citation to cases like rumble unpublished sr court opinion out of the district of minnesota or un prevailing and that is notably the only case to so hold as a dead end and others have said otherwise including briscoe that actually directly took on rumble and said that that was not the case now getting to your earlier question your honor about disparate impact and moving to amend to a plead that st of all it is a given i think that it was not played here and i think counsel for kaiser rightly said it would be futile to plead it again even if they had though and even if they were to him and the question would become the sort of meaningful access to a benefit that the grantee offers and simply this is there is no benefit here that's being offered any different to anyone else the access is universally the same the access to this policy in the services in the provision of services under this policy is exactly the same for everyone this is not a crowder case and when i think of crowd are sort of like to think of crowd it was the public benefits over here everybody has access to it and then we've got a policy over here that says those of you who need carnivorous animals which is the exclusion that case you can't access these benefits so those with the disability you need a guide dog can access it here we don't have a benefit in a separate policy here the benefit is the policy and the benefit is provided the same for everyone it's a distinguishable and important distinction and doe and others have likewise said it and it's interesting because even crowder when it's to far as to sort of acknowledge that the question is meaningful access as we've heard some discussion of today so again i think it would be i would share the feelings of counsel that would change it wouldn't change anything to allow to amend either narrow the class that's not the question or to alleged disparate impact in any fashion there's certainly no issue of fact here to morrow at remained on whether someone had meaningful access one need only look at the face of the policy to see that the policy applies across the board to everyone who has a policy holder and everyone who has that and defined otherwise requires to get to where i think councils can see to we aren't which is that hearing loss is a per se disability and it's certainly not as much  i won't in the interest of not repeating what everyone else has said i just wanted to hit briefly though on the squashing of sort of facial or proxy discrimination and sort of the cochlear implant there's some suggestion that only the most severely hearing disabled individuals would require that which means that there may be a myriad of other sort of treatment to hearing this this abled individuals that aren't covered under these plans there's certainly i wouldn't disagree that there could be treatments for those with disabling hearing loss that would not be covered i think the question though and then i'll come back to your question if there there's nothing the record that would give a precise number of how many people i'm sure one can google right how many people use coakley or implants but i think the key question here is not that but the key question is on the face of this policy are individuals with disabling hearing loss treated any differently or provided any less access to the benefit than those with other forms of hearing loss whether it be minor hearing loss some hearing loss no hearing loss at all and the answer to that is no but section  prohibition and that's why i'm trying to get my arms around what is evident in this record and what what potential allegations could be added because kaiser's and your argument is absolutely subject to the anti discrimination provision and in terms of disability discrimination section five or four of the rehabilitation act there's no denying that and we're not we're not suggesting that we somehow can have a discriminatory plan that's certainly not reagents argument and i don't believe got to be kaiser argument either the question is simply on the face of this exclusion is it that and that's when we turn to is hearing loss a disability and that's what the exclusion of the hearing care exclusion and is hearing loss of disability and if the answer to that is no then indeed there on the face of this exclusion on the face of this complaint in the district court should be affirmed and if you want to get to disparate impact and potentially i don't believe there's anything the plaintiffs can add to plead facts or otherwise on disparate impact because they could they could certainly make some allegations but the question then becomes is there meaningful access and here there is meaningful access it's equal access and certainly none of the case ought show crowder and others none of them say that and in fact show goes as far as to explicitly say that the meaningful access test does not mean that someone with a disability has to have access to any potential treatment they might need for their condition whatever that might be someone with a disability or otherwise that everyone gets access to everything that they need that's certainly not well meaningful access means well meaningful access means is that everyone has the same access to the benefit being offered so meaningful access to the benefit here the benefit we have a policy with an exclusion it's the same benefit being offered to everyone no matter your disability condition or otherwise someone who has no hearing loss at all the same benefit applies the same someone who will never have hearing loss the same benefit applies the same so that's the real question in the disparate impact context is there's certainly no case law and there's no statute in the a c l u does not say that you are have a right to all care adequate care or anything of the like it simply says that you have to provide these essential health benefits and you have to provide your plans in a nondiscriminatory manner and then if we want to get to disparate impact you would look and you would say as are meaningful access and i would argue on the face of this exclusion you need not allow amendment to get there because whether futility or not i would say you can reach that question on the face of the complaint as pled because you can look at it and you can say this exclusion grants meaningful access i eat the exact same access to every policy holder under this plan so there's no other exclusion won't change if we amend the complain just wanted to hit on proxy discrimination quickly we've sort of heard a lot about proxy discrimination or constructive facial discrimination and i want to just point this court there's some hopeful language in pacific shores which you cite in our brief and there was also i believe only the nd case recently in the th circuit to even use the words proxy discrimination was the summer in davis v guam and it said there that the fit between the classification addition and the racial group in that case was a question about voting and racial discrimination  it covers this so close to the classification on the basis of race in that case can be inferred without more and here we've heard a lot today about discovery and things like that and the need for discovery and i would suggest that that's a tacit admission if you will that the you can infer the discrimination without more if you need discovery or you say you need to skiver i want to articulate the need for discovery to make that claim it's got to be clear from the face of it and it's certainly we would argue this is certainly not proxy discrimination they're hearing exclusion applies to far too many people to be proxy discrimination and as i've mentioned before so in conclusion and unless the court has any other questions i would just say we court held and we would ask this court to affirm the district court's order thank you disabilities even if it captures some other non disabled people in in that cut or elimination of services that is not the kind of facially neutral ex exclusion applied inchoate and so the th circuit has already addressed this issue in a section five hundred and four case it is a form of facial or proxy discrimination and whether it even if the court says it is a form of disparate impact it is definitely the kind of disparate impact that addresses meaningful access to benefits again defendants don't address that show specifically a den of fide how the entity is defining the benefit matters and you heard ms norton up here saying well the benefit is the policy and then a few minutes later she said the benefit is the hearing loss exclusion and it really you  have to kind of get into the discovery to understand how in regions routinely define this benefit what do they define it when they cover it because they cover it in many plans just not in the plans that my  have and when they cover it do they cover it as a special hearing loss treatment well what we've seen so far it looks like they don't they cover it as essential health benefits so meaningful  and if that's what they do if when they cover it they cover it under these generic terms but they only use disability base exclusion when they're trying to eliminate it that is very much disability if you don't mind if i change your example just a little bit to something i'm a little more knowledgeable about developmental delays i have a plan i'm litigating against right now that has an exclusion for developmental delays maybe they once had an exclusion for developmental disabilities and because under the defendant's theory that kind of exclusion where they call out the word disability maybe that one would meet facial discrimination but you just tweak the language a little bit under their theory change it to developmental delay well then they say oh but it does have elemental de lay does not encompass every disabling condition well you know i think you need to get into discovery to figure out are you applying it first of all who are you denying coverage to if the claims are submitted by people who are disabled under five or four you know regardless of the tweak in the language in the plan then that is discrimination under rudy versus on to it says if you if you target and you disproportionately impact people with disabilities refers to people with disabling speech the facts and the benefit that's being denied is something that when it's covered is it in my mind is i'm not sure what the disproportionate impact where that would come in let's take vision the effects of plans that were not going to cover vision defects i wouldn't cover someone who's totally blind but it wouldn't cover all the other people does need to keep the class so  excluded when they are not excluded under the plan are covered under the generic benefits that raises at least the the prime the facia case to get over the hump to discovery to figure out if it is discriminatory the problem for defendants is well and let me just say the vision thing is is hard because partly we don't know why the health plans are excluding the vision treatment in your case or in this case why they are excluding it  for hearing impairment my expectation is when we get into the discovery we will find that there is no justification that it is historic that it's done this way because it always has been and that has been what we have found when we challenge the developmental disability or developmental delay exclusions that there really hasn't been a lot of thought into these archaic disability based exclusions that remain in the plans  if there is a vision exclusion in the plan and it predominantly effects people with hearing loss and it takes what it does is it eliminates their coverage to otherwise covered outpatient treatment durable medical quitman and so on you know a prime official cases many but it gets to the next stop you find out well what's the reason maybe the health plan says we've got a bonafide medical reason we don't think for instance vision treatment is medical i don't know but you get beyond that that that st step that we haven't been able to get beyond here to find out what what's the rationale and that was the point of the affordable care act it was designed to make sure that arbitrary disability based exclusions are not continued and that finally we can bring people in who had been excluded from coverage in the past i want to address a couple of things that were also said  city exclusion and all of the other non disability beast exclusions like for infertility or family counseling it doesn't reach those in addition if if these exclusions are removed then they still have plenty of tools to manage cost it doesn't mean that officially neutral truly facially neutral exclusions like medical necessity experimental investigational are going to be wiped away you still have based on five or four the right for insurance companies to manage and limit coverage based upon medical and scientific information  they also said well everybody is getting the same benefits you know people with hearing loss when they break a leg they get their treatment just like everybody else but that overlooks that everybody has different needs there is but despite their different needs under the they are promised to get coverage under those essential health benefit criteria they cannot bundle up a particular service into a new treatment