there when did that wind it is a health care provider when they were conducting individual counseling and traditional group therapy sessions we have but conceded that they were a health care provider when they were providing wilderness experiences like hiking and rock climbing and that the utah case law makes clear that an entity can be a health care provider for one purpose and not for another services there are wilderness therapy providers so it you know in a sense i suppose as an alternative means of of you know therapy and counseling and as i understand their program a primary aspect of his of his exposure to the outdoors into the wilderness and that includes camping out a yell that what you and i would do if we went you know wanted to extend extended camping trips so hiking climbing fishing putting tents up sleeping in town spraycan that down those sorts of things and if that's if that's part of their you know the therapeutic services that you know it's just trying to help you know individuals that might benefit from that why why wouldn't what happened here hiking climbing be right within what they disclose to health care has a specific statutory definition and wilderness therapy doesn't fall within if it's any any act or treatment performed or furnish which should have been performed or furnished by any health care provider and then it goes on to say it's conduct that's related to arising out of health care rendered or which could have been rendered by the health care provider that's a pretty broad statutory term it's  statutory term that refers to a list of provider specifically one million and providers the statute says it's good it's that health care is an actor treatment performed or furnished by and then it refers subsection twelve of the same section to say it's got to be an act or treatment performed by this list and that list includes hospitals and includes optometrists i thought you conceded that  a health care provider though we have conceded that they are a health care provider we're just talking about the services here aren't we we've conceded your honor that they are if they were a health care provider as they provided individual counseling and traditional therapy and we can see that because we have to look at that list of providers given in the act which includes marriage and family therapists and social workers and conduct and services that are performed by those types of providers do include counseling they do include group therapy sessions but there is no one tell me why hiking and or physical activity would be excluded from any activity or treatment for you to write if we're going to write a decision in your favor rehearse in the district court we've got to clearly explain why the statute doesn't apply why it applies to group therapy you know in a tete with a counsellor at this program versus not on a hike yes because iran or the it must be any act or treatment that is provided by one of the listed providers none of the providers listed in the act offer wilderness excursions none of the doctors don't up tom interest don't we could go through the whole list none of them offer those acts or treatments none of them offer rock climbing and health care is defined not only as any actor trick or treatment but any actor treatment provided by the listed health care providers and you can go down each one on the list and none of them provide wilderness therapy well that then then why are they health care provider at all and i just i'm not under your we're probably talking by each other it seems to me that you're arguing against the concession that i thought was in the record that they are a health care provider perhaps an analogy would be helpful and i the case that we've cited in the brief but i think i most helpful honest analogy is the course in the case out of new york where there was a patient in a hospital who'd received surgery and after the surgery his doctor said or her doctor said it's appropriate for you know to now get up and be walking around the required medical judgment of the doctor to gauge that we are that it would be helpful for your recovery to get up and walk around then we had a nurse practitioner who took the patient for a walk allowed the patient to go unattended into a restroom and fell off the court said yes the hospital is a medical care provider and it took medical expertise to know that post surgery you are now well enough to walk around but the hospital was not acting as a medical care provider when on that walk they left the patient and attempted to fall here when date  gave medical care they did counseling sessions and they did a treatment plan and in fact said the part of jake's treatment should include hiking they didn't mention rock climbing but they did say hiking that was exercising medical judgment to say it would be beneficial for you to go hiking but when you then turned on jake over to unlicensed staff to go hiking and leave him attended there was no medical care no medical judgment being provided in that decision and so yes we acknowledge that giving the medical advice was that they were a medical care provider at that point well if he were not provided ben you know i understand that the fact here involves the claiming to know is a steep incline or work left but let's say the the silly says you know our hike each day is part of the treatment and you know you're be you're going to go with unlicensed counselors for the for this part of the day and he's on a simple trial you know stumbles and injures himself is that it is any injury during the course of  wilderness therapy outside the scope of the act or with that word would that be part of health care services we contend that it would be outside the scope of the act because of him the list of health care providers who we have to plain meaning and that's all that needs to be looked at it is then why do you also rely on the legislative history of the statutes plane there wouldn't be any need to do that so that's why i'm asking the question  you looking at the legislative history because the statute needs further explanation or does does the statute support your position standing on its own the statute supports our position standing on its own because the statute requires for a claim that you be a help care provider and that the claim arises out of health care being rendered because there are two prongs you can be a health care provider and yet have a claim that does not arise out of health care that's being rendered well i'm with you up to that point i think at least i understand where how we're getting to that point but that phrase health care why is that plain that it doesn't cover hiking again and i'm i apologize for saying it again but i am the i am i will read the language subsection ten defining health care health care means any actor treatment performed or furnished should have been performed or furnished by any health care provider ok you've had to get the license counsellors on the hike and they're having a conversation about you know various medical treatment issues that are at issue here with with the high and gave psycho therapy statements that caused an injury we would say it would be covered but if the doctor says it would be well for you to go on a hike the hike is not health care and i would refer the court but if the doctor says go go on the hike because i think it will clear your mind so we can have a better discussion when you get back and in fact that's essentially what happened here and why is that why is it that covered by the act it's  prescribed by a doctor but i think the fact that there's an unlicensed counselor along is probably immaterial but if it's under the doctor's instructions doesn't that get us into the broad terms of the care services and said mental health care is your health care provider for mental health care services but not for foster care services and then looked at the claim to see which one is it you just made my point that  care but also provides foster care in a different service and then the court i analyzed which of those two did the claim fall under the the mental health services or the foster care services and in that case the court  actually your call in the court looked at the specific allegations and said if this falls under the mental health services that you provided but it was it analyzed did it fall under the foster care services and if you look at the allegations of  complaint and where they were at the motion to dismiss stage you have to separate it out under smith was this the under the mental health services provided in the individual counseling sessions or was this under wilderness therapy kim but could you draw nonetheless a distinction between hiking on the one hand and what happened here which was in a way a departure from the right to climb the rock formation is that is that a is it is that a buyable distinction i believe that the initial one is more meaningful the the whether we are doing health care or counseling versus any sort of wilderness therapy but there is an additional viable distinction that at the time when it when your treatment plan is in jacob's said hiking and now we have admitted leak on outside of the treatment plan so to rock climbing that wasn't planned wasn't in the the treatment plan that yes we removed ourselves even a step further from from what is the distinction the supervision involved or is that the danger of the all the danger the legislature uniquely fairly uniquely said in the statute itself here is our purpose our purpose is to make sure that there is affordable medical malpractise insurance for healthcare providers i there any evidence in the record about whether windgate was covered by its malpractise insurer for the wilderness aspects of its operation versus the counseling aspects in te malpractise we were we were at the motion to dismiss stage and so no to discovery had been done there is no evidence in the record but i think that our inference is a logical inference is that medical malpractise insurance does not cover it doctor giving hygiene advice and the really the distinction is are we exercising medical judgment in a way that would be covered by medical malpractise insurance or are we doing some other service that may be beneficial but it's not health care and if the legislature wants to include wilderness therapy as health care it would need to amend the list of providers to include one that provides wilderness therapy or one that does something similar that the definition of health care relies on that list then you know the old whatley this case is about a statute of limitations a two year versus three years statute of limitations  ere there was really no mystery about the injury in the causes of the injury injury and was there any impediment to your client bringing a claim within the to your versus the three year statute of limitations as a practical matter practically what was going on during the time was jacob returning to virginia for extensive treatment and surgeries and a family who was focused on that recovery and has been told wilderness therapy is not health care and they look to the personal injury statute of limitations in utah which is four years and focused on jacob and four focusing on mclean  one of the things it does is it provides counseling and there's people in that list who provide counseling can you point to anyone in that list that provides wilderness their wilderness my doctor for malpractise because he's made the you know the holiday i mean there are no limits right sure there are there are limits but what we have here is wilderness therapy is you me this isn't an outpatient program where you go and see your therapist and then you leave and you can turn the switch on for when you're in therapy and you can turn it off when you're outside there what we have is a program that isn't designed to incorporate a lot of different aspects of it doesn't cover it does everything that happens during the program constitute health care then that's and that's a good question and i would say no i would think we can come up with hypotheticals where it would not be covered including  us the limiting principle that would help us you know draw draw the line that we have to draw the line in this case for sure sure you know smith and so it will help us but at how we're going to draw the line in this case well if you have she brought climbing and if you have a under the utah health care mill practice act for that type of ins and other sites do you know if there was an example in the case is about a doctor stealing from a patient over there walk well were to occur let's say let's get a little closer to what what happened here so that the in wrote the teenager out on a hike with two staff members one of the staff members leaves for a brief period of time  recollection but in any event the one was still there they come upon the rock formation the kids want to climb the rock formation they say can we climb the rock formation staff members or go out and that that's that's our case right that's what the words of the complaint yes all right but it's those are the facts that we have those are the facts all right to end it your position that climbing the rock formation healthcare what we parent child relationship issues and disruptive behavior and in his determination and in that treatment plan he says that this individual needs individual and group therapy needs weekly cycle educational therapy or  needs daily excuse me daily cycle educational and process groups including hiking in exercise and full immersion in the wilderness program where where's the rock climbing the rock formation in that list it's a well that's that's where we come to jump off the cliff you would have to look through that individual stream of well how is this different then what how is it different than the one you just described from mr hess exercise is what was specifically was required and full immersion in the world and why isn't cliff diving exercise is that health care i mean where are you going to draw the line that's the question well we have a rock formation you don't want to draw the line no no we need to draw a line ok let's draw it why isn't it drawn at the rock formation because of this particular rock formation it's not one that you need harnesses and have to go to scale it's when you can walk up without using your hands it's not a did it's not this grand scale that you see essentially is that really what is that really what t statute plain on this point are you are you arguing that it has a plain meaning that supports your position correct and what we're getting back to here is of the legislative histories irrelevant the legislative history  don't think so but why not what an insurance company does or does not do what they cover or do not cover doesn't impact the law it doesn't impact the court's decision and may be informative it may be helpful but it's not persu not binding authority on the court it may be instructive there is ongoing litigation out there against insurance companies over whether or not they're going to cover wilderness their programs is something that's being disputed insurance companies love the  claims and they they they pay for some of these claims they deny other claims i don't think that's helpful to this court in analyzing whether or not what we are providing is in fact health care well let me take you back to the treatment plan learn and implement world new skills and activities that will contribute to his increased confidence problem solving ability and so here this is clinically designed to include both the wilderness aspects and the in the individual in group therapy they're designed to work together at a fundamental level we're teaching our patients and students that they can do hard things when they get out of the program and they're in real world situations they can look back when they're tempted to use drugs they can to go back to their experiences that i have participated in climbing and hiking and survival skills i lived in the wilderness for eight weeks counseling i would let my let's get back to the statute ok all right it seems that both of you think that the text is playing both that you think it supports your position and what i'm not understanding just yet is even though when kate considers hiking part of the overall therapeutic program why does wingate get to decide that hiking equals health care isn't that a decision that the legislature malpractise claim under these circumstances you've got to do these things and for the legislature to impose that requirement it has to have some idea of what health care is and yet it seems like when they want to come along and say well to cover and it could be interpreted not to count that wouldn't do it very therefore it's not playing if it could reasonably be interpreted to cover or not cover it's not plain as a isn't that the very definition of a statute let's not play provider that's all that had with the men it wasn't two thousand and two and so now we have one legislator opining on what he thinks is and this circuit has indicated or excuse me the utah supreme court has indicated that senator's opinion on an act isn't necessary dispositive and doesn't suggest what the legislative history is that's why the legislative history your side it is not helpful and if we wanted to get to the true meaning of why that particular healthcare definition was given the complaints as alleged as true we have not had a chance to file an answer i would assert there are discrete thanks but as far as the coverage of the statute there are disputed facts the coverage of the statute no then why isn't this had a bit of a moving target there and as our preservation argument in the brief points out this is a new issue that was not considered by the district court as those issues have been abandoned but we feel that the statute is sufficiently clear in that it's broad and does cover what we have here is looking at that treatment plan was it medically appropriate to prescribe immersion in wilderness therapy and hiking and exercise let me let me i'm still trying to come up one way to draw the line is that rock climbing is prescribed by a mental health counselor and i think that's really bull ultimately your position that everything that they did was part of the treat treatment plan the world outside of the program i want you to scale this cliff i want you to scale without safety equipment i want you to scale it it does and by god if you survive that you're going to be a tougher individual in the in the real world john was that said health is that health right we're not the navy seals and i agree there has to be a long draw a line drawn and i'm trying to i'm trying to get to how to draw that line but what we're looking at is the implementation of what the treatment plan was that reason bungee jumping jumping off a cliff it's hard to argue that those are health care really be here we have hiking in exercise and that's exactly what happened and whether or not it's appropriate to hike up to the top of this rock formation or not that's where