court should look at the new standard in the first instance because there are it is a different standard than under the old at which you and certainly arena and in this case would be much preferable to an affirmative but my goal this morning is to try to has the discretion to determine plan eligibility it has to actually have exercised that discretion to have the abuses of discretion standard apply here there are two reasons kaiser did not exercise its discretion and therefore the denotable standard should apply the first is that kaiser itself never made a decision on the request for a federal outside the wanted inpatient eating disorder treatment the first level overview was done by a social worker the plan so that a plan physician is supposed to consider that request the social worker to decide that you share and not review committee decided against referral and then it went off to the regional appeals committee if you also decided that for all the problems here is that even if you look at both plan documents both documents as pla if the plan doesn't said there you have discretion and if you decide that you want to delegate your discretion to another entity such as the medical center review group or the appeal regional appeals committee then you may do it but if the plan evidence of coverage is a standalone plan document that qualifies him satisfies all the requirements of a plan and arista this court has said that when you are trying to demonstrate that another document is a clear plan document and you already my point is that under ninth circuit authority that discretion has to be given in a clean document and i don't believe the agreement is a plan document i think it's the agreement between the employer and heizer saying we're going to use you to provide health coverage for our employees we choose you rather than blue cross and you're going to issue a health plan for our employees and then they go ahead and issue that health plan which is the evidence of coverage and not in fact is the plan the official risk of playing ok so is there any things one was starved a social worker was making the arrangements are not a referral and what the mother and this lady want him was inpatient treatment for offer her to treat her eating disorder she was there was a drop in tuesday night program it was it was sporadic there was no outpatient treatment and she was getting progressively worse she was doing whatever they were telling you to do she was going through therapy she was to going to  she was trying to se in treatment and they they centered business social worker who said we don't we're not even going to have anything more intensive until april and that turned out to be june so by me she's suicidal she's depressed she's bingeing and purging four times a day and the family asked for inpatient treatment now what they did not know was that two years earlier kaiser had determined that inpatient eating disorder treatment was not warranted for any any patient with an eating disorder they weren't going to offer to kaiser and they were going to pay for it if you would need a referral out and the way we know this is that lee miller testified to that that she was brought on to put the program together disorder programs are incredibly effective in the standard of care for treating eating disorders so at the time when kaiser told laura and current jacobs we have treatments for you they didn't have treatment for her they had nothing for her and so she went in got the treatment that she needed at the raider institute and the interesting part about this is that what tiger had done boys predetermine the medical necessity issued for all eating disorder patients before laura jacobson ever arise for treatment and kaiser and no matter what standard or review you you apply to that whether it's you know for almost a whole for a lot of yes and if this is a question of law that said they they couldn't have denied her any treatment at all and that they had no treatment for her and had she continued going to kaiser and for all we know she could have died physicians just like the permanente medical group in northern california the connection that the medical group has with kaiser is entirely contractual there is a contract between kaiser ok pressure and believe me i'm given the benefit of the doubt that these symptoms require acute psychiatric hospitalization kaiser could have provided that level of care that's what prior to her unilateral solve the nation through the rater institute and that was about two or three days before the admission she called in and she spoke one with the social worker and two with the social workers super supervisor that patient was supposed to see her treating psychiatry's on april thirtieth just two days or so before this fellow phone call with the social worker and the social worker supervisor in that telephone conversation this both the social worker and