called intercept and about defendant bush refusal to pay benefits for much of his treatment while he was there and there are three issues that are presented by this appeal first one is whether the district court should have admitted a declaration from nicholas's treating psychiatr second issue is whether the district court properly ruled that part of nichols his treatment was not medically necessary and the final issue has to do with attorneys fees and that's an issue on which blue shield is cross appeal unless the court has a  produced because the declaration was responding to misstatements made by blue shield during the administrative process what happened was this case came to court and the district court remained it for further review by blue shield and in the course of that review we arranged for a telephone conference between blue shield and dr albright and other staff members enters that to discuss  nicholas's treatment at intercept and it's in the course of that telephone conversation that we argue that the misrepresentations were made by blue shield and specifically what i mean by that is compiled the report at the end of th telephone conversation and and that transcript of that conversation contained in accuracy and that's what dr over rick was responding to that i'd like to follow up on the street minute i think we all agree that the city district courts review and trial of the matter is confined to what's in the administrative record you are now saying as you said your brief that the doctors testimony was not available at the time of the administrative record and therefore the district court should admit it my reading of the district court order post trial is that he found there were already hundreds of pages of nicholas's medical records in the administrative record and that it would not have been helpful to him in a bench trial they had the additional testimony from dr all rich and so therefore as a matter of discretion he excluded it and i'm not one what would be plain about that type of  decision plainly erroneous that would lead us to have to disturb it well the difficulty is that the district courts basis for excluding the declaration was based soley on the fact that plaintiff allegedly could not have produced the declaration earlier and as we just discussed it could not have been produced earlier because it was responding to statements made at the end of the ministry of process so and  process and initial claim denial for example then the claimant does have an opportunity to respond to it in the form of administrative heal and that can all be sorted out during the administrative process but when that misstatement comes at the end of the process which is what happened better than a declaration was to put blue shield directly in touch with the folks at intercept to explain that they could explain why the treatment that nichols received was medically necessary and our sumption was that the contents of that conversation would be transcribed accurately and the outcome was that it was not and so that's the reason that we submitted the declaration and and it's important to clarify what we're asking for here if the district court had received a would've been one thing but they just were instead refused to consider the declaration at all wouldn't even read it and in the scooter that trial although i should clarify that he did not should back up it's all more confusing than that because he didn't exclude it at trial of the dr that's correct so i'd like to move on now to the issue of medical necessity because this is really the core issue of the case and in order to determine if the treatment he received is medically necessary of course we have to look at the benefit plan which defines that term and that definition includes for criteria and fortunately we don't have to go through them all because the district court probably found that nichols has treatment met the first three criteria so the only criterion that's an issue is whether  treatment that he received was quote furnished at the most appropriate level which can be provided safely and effectively to the patient and the best evidence on this point we think of course is this declaration from dr all rick was just record excluded but even without that declaration the record still shows that nicholas required to cheat and that he was receiving i should ask what is the what's the standard here because this is a basically a pure disagreement with the outcome and i know you have reasons why you think judge carter's ultimate decision was wrong but do we we don't look at this to novo we we defer to the findings he made he is making factual findings all right we w well in order to answer that let me explain what that residential treatment program he was that what it what it was designed to do and how it was set up and the program the program is designed to step patients down gradually while giving them more freedom and it's an essential part of the program that patients slowly decrease their medication mother there which is what happened and that they slowly integrate into the community which is what happened and so the facts are cited by this was in fact an essential part of the program so this record was doing was citing facets of the program that were designed to improve his health as a reason for why he did not need the treatment and the record shows  that the stream in fact was successful at the end of his treatment he was able to return to school full time he hasn't had to reenter residential treatment sense and one would think that everyone would be happy with that outcome that is not to say that it wasn't an easy program for stopped he did have a part time job but he wasn't able to hold it down he relapsed with drugs and alcohol during the time period issue here at least twice that we know of and he continued with the same problems that he had before with regard to aggression was anxious depressed he was resistant to treatment and it's for these reasons that we can turn the discipline area to treatment was medically necessary so that you know blue shield argues that nichols was doing well in the treatment as an argument for  catch twenty two of which mental health patients are often familiar if they go into treatment in the treatment isn't working and they're not succeeding insurance companies often deny their claims because it's an effective treatment they're not going to pay for it on the other hand you hear well that's not  right but if we have the contrary situation here which is if someone goes an achievement and they're successful and so being rewarded for their success the insurance company tells them you did so well there that you didn't need the treatment at all you could have had something  he could have had outpatient treatment and it's worth stressing the difference between residential treatment and outpatient treatment residential treatment is you are living there at the facility you may not need round the clock attention but you have around the clock support if problems come up and outpatient treatment you're living on your own you're on your own you're responsible for getting yourself to treatment and being responsible for your own care and there's no one around if there are any lapses or sore slip ups so what blue shield is asking for is pretty much the district court eventually agreed with was a pretty significant step down and down your class was sent to how to get outpatient treatment  successful and that was why he needed to go into residential treatment in the first place i seem a little short on time so i'd like to address the fees issue if i could really quickly there are actually two issues on the fees the shield is cross appealed and said that no fee you don't like judge carter's reduction even though that's right no address that and now the difficulty with with that is why we recognize that we have not achieved everything that we wanted in this lawsuit limited our request for fees only to that time period in which we had had success and we did not ask for any fees with regard to the manner of the litigation which included not only is reason january through july we only asked for our fees for the time period idea was obviously we understand that we didn't have complete success so we're going to unilaterally reduce our fees to take that into account and what the district court did was reduce that already reduced amount by approximately seventy percent couldn't have been put in earlier during the administrative proceedings right any earlier point but because it was necessary to respond to a misstatement that review were allegedly made you have to speak up a little  when dr melman from blue shield talked to dr oleg post remount later in his report he characterized something the doctor over could said in a way slightly different from the way the doctor always characterized it that is not an excuse for putting in that declaration at that late point because it has or at least not excuse relevant to the issues here because that dispute between the two of them over what is said has nothing to do with the medical necessity of the treatment which is the said i don't have the quote right in front of me but the dispute was over the characterization of a statement by dr always about how insurance companies treat coverage for facilities s intercept i think if you look in the briefing we have the two quotes it's kind of an illusory dispute anyway as i read it they're saying more or less the same thing but even if it were different let me assume for the sake of argument they were saying two different things and dr overcome really did need to correct that it still has nothing to do with whether nicholas was so severely ill in july through december that he needed he listed his conclusions four or five conclusions to the effect that if nicolas had not been in residential treatment for the five and a half month period at the towards the end of his respond to that but that has nothing to do your honor had asked about why the declaration had not been submitted or provided much earlier in the process and the amps the answer was because he only put in the declaration to clarify a misstatement that paragraph eight has nothing to do with the port in the statement the misstatement is completely completely different to the statement as addressed a paragraph moreover even before you get to whether there was an excuse for the delay they haven't addressed whether it was necessary at this court has held that it is an abuse of discretion for a district court to consider evidence outside the administrative record unless the circumstances clearly establish that evidence is necessary and there was not even any discussion and there's barely any discussion of it in the briefing about whether the facts stated in that declaration were in fact they're very similar to what was in the medical records already you know the district court did say the district court went through all the medical records it conducted an overview it made extensive factual shield always sudden patient treatment was not necessary for those for that period of time we should always said that that was the dispute during the administrative proceedings as well over the issue as to the extent to which impatiently was necessary was at issue in the administrative hearing oh yes that was the issue so this is sort of argument if it hadn't been given this would have happened when they could have been bro mistreated hearing yes it could easily have been brought up in the administrative hearing also another fact is once the district court granted blue shield requests to remand the matter to consider the what you know while we're going to considering the rest of these records is there anything else out there you want to consider they said yes please talk to dr all right so we still did talk to dr work that was another opportunity for a doctor the medical necessity of the treatment and he did not and i go through the timeline a little bit i think this is relevant to the fees issue as well there was a lawsuit in the district judge on the dissatisfied with that the case was refiled in the bench trial a curtain was resolved in your client's favors that essentially the way it worked out more or less it wasn't refile that was always been i think administrative yeah yes if it originated because during the administrative process blue shield had repeatedly told the potters we don't have enough medical records every but if you will give us the records we will reopen it right but the technical part found that there was confusion in this communication both sides it was not entirely the potters but the district court found miscommunication on both sides and that it was not either side fault so at worst there was miscommunication from blue shields perspective it was repeatedly saying we don't have enough records give us the records we'll look at it so once the litigation was filed the plaintiffs produced and intercept produced hundreds and hundreds of pages like a total of seven hundred additional pages of medical records that had not been provided to show before there was a dispute about what happened what should happen blue shield asked the decided to give another month of benefits not because they were medically necessary but for a reason relating to stepping down and transitioning out of the treatment then the case was reopened see that again it's the remaining period  through so that is the chronology and another thing i wanted to address is appellant has said the district court's factual findings are entitled to some deference the standard is clear error meaning the court can't reverse those factual findings unless it has a firm conviction that the district court made a mistake so it's not simply starting with a little bit of deference it's a very extreme deference and as i mention the district court it engaged in a major review of all these thousands of pages of medical records and it set forth its findings very clearly it was the plaintiff's burden at all times to prove that the residential treatment was the most appropriate treatment during that period there's no evidence in the record that nicholas needed twenty four hour care during that period of time and he was going to work he was going to school he was improved this dispute is not about whether he needed any care i mean it's only about whether he needed twenty four hour residential care during the time that he was out in the community you know improving and he was you know the fact that he was doing well in treatment is not the standard the standard is  not trivial the fact that plaintiff got an additional month of benefits is not success in the lawsuit because had they given us the medical records that we wanted in the beginning we very likely would have paid got additional months for the lawsuit was even filed so the lawsuit is not what led to that and in fact as i mentioned the plaintiffs vigorously objected to remit them to lere shield to consider in the district court knew i think that's why they did district court follow the law and found some success because the benefits were provided after remained but reduced them substantially because the but to a plaintiff didn't even want to remain to begin with and then did not succeed at trial to the court's finding the court just occurred said the court recognizes that much of plaintiff's pretty remained work contributed to his limited success on re manned a moderate award balancing these realities is reasonable think blue shield wanted the opportunity to go through apply its expertise go through the administrative process with those records and it requested that and the court granted blue shield request so that it had the plaintiff gotten his way but it did not have all of the records and it did not have the level of detail records that it needed to evaluate the medical necessity of this treatment blue shield one of the records it asked for the records we cited in our briefs many many places in the record the court record or blue shield asked for the records and said if you give us the records we'll look at this again so i don't have an answer for why we still didn't have the records one of them and it needed and once it finally got them we evaluated them it came out in the same ultimate place anyway but i have a question about this case is entire case under seal or is it just the medical records that ar our quote about nicholas from his medical records so that we we weren't sure what to do with that since the appellant's brief had just quoted all those things without reductive them but we thought that was our obligation under the  orders ok so thank you thank you very briefly i'd just like to address the fees issue and you shield argument is that plaintiff didn't have any success on the merits because the case was remanded pursuant to its motion arguing that it asked for the remaining but it's important to remember that because it was not it wasn't clear just position that blue shield shouldn't read through the documents it was that every man wasn't necessary for that purpose you know blue shield is free to review those records at any time without planning permission of the just court's permission it's