are related to eating disorder includes gastro priestess osteopenia attack cardia and the record shows that she suffered from this disease since she was fourteen years old and that she has a severe case of this disorder in fact in april of two thousand and fourteen she was hospitalized for a condition in denver and while she was in the hospital she had her weight had reduced to sixty two pounds and there are some alarming photos in the record which show what her condition was like at that time so after discharge from the hospital she's then admitted to monta nido which is a residential treatment facility which specializes in the treatment of eating disorders and it's this treatment which is the subject of this appeal and while she's at monte nido she improves slowly and she finally begins receiving the intensive treatment that she needs in order to get better unfortunately her reward for improving is the eventual denial of her claim for benefits by the defendant blue shield market then in this appeal is that blue shield decision and this to court's decision upholding that decision  incorrect and we've presented to interrelated reasons in our brief for why that so one has to do with a standard review our contention is that the district court misapplied the abuse of discretion standard of review and our second argument is that under any standard view depending on regardless of how much deference they just your court should have showed to bushels decision the decision was incorrect so those are the two issues that we've presented in blue shield in its brief is also presented a third issue regarding standing  and i don't know if the court has any preference with regard to which order i proceed perhaps i should just a standing issue first and our first objection to the the blue shield standing issue is is primarily a procedural one blue shield unfortunately raise this issue the day before trial in front of a district court and in this court it did not file a notice of cross appeal on the issue and stayed waited until its brief least the way it's been presented and take a skeptical look at it for that reason but it doesn't matter in any event because christine clearly had standing to bring this action she signed both an admission agreement and a financial agreement when she was admitted to montenegro in which she promised to pay for treatment and that's the gist of blue shield argument which is she doesn't know any money and therefore she has no standing but clearly the financial agreement which kristen signed says quote payment for treatment is ultimately the responsibility of the client well that's up to mount a neato i assume it would they're waiting for the outcome of this litigation to see what they should do but they certainly have every right to pursue payment because kristen is promise to pay them or interim consequence consequences well there would be if she owes the money so yeah there would be consequences blue shield tries to counter this by referring to the participation agreement which is not an agreement to which blue shield is actually a party it's an agreement between its vendor magellan and monte nido and they say that there are provisions in that agreement which support their standing argument but this agreement should not be considered by the court because it's not a plain document under the plan is the central controlling document it's the document that everyone should be able to consult to see what their rights and duties and obligations are and plan provisions can't be subverted by documents that are outside of the plan and as i mentioned blue shield isn't even a party to this agreement and obviously christine is not a part of that agreement either so the parties to that agreement are months anita and magellan so for similar reason the court shouldn't hold that and the risk that beneficiaries of right under a plan can be changed negated somehow because of a contract between third parties who are not planning ministry toure's they don't have any say in the plans operation now that said if blu still upset with monte nido that doesn't mean it doesn't have a remedy its remedy as a district court properly know what it is to pursue relief under that agreement but the provisions of that agreement which are not plan documents shouldn't be injected into this case and certainly not in a way certainly not in a dispositive fashion versus a statute that the courts have interpreted as intended to protect beneficiaries and the courts have held that standing is supposed to be construed liberally under and allowing this third party agreement that nobody is a party to the christian doesn't even know anything about allowing that agreement to somehow prevent him from making any claim whatsoever under the plan is and isn't acceptable under arrest and so the relief just to be clear the relief you're seeking in this case is effectively a declaration that blue shield should have permitted the continued residential care that's correct and your argument is that it's similar to declaratory judgment in a sense that once that's what gets your client into the courtroom right because the third party agreement is what conceivably injures your i mean i'm talking a third party agreement between the facility and your client correct  was i was i was referring to the participation agreement but under different i see what you're saying so that that's what i sense what you are asking us to do is to declare in a fact that blue shield made a mistake and because the shield made a mistake your client cannot be hit up for the costs that would be incurred through from this facility that's right that would be the consequence right so let me ask you because it seems to be our question here is that did the plan or did blue shield abuses discretion by denying the stay and i just want to make sure i understand the timing here sure so and i guess i don't fault your client for any of this but we have to look at all the facts here the clinic contacts blue shield right before labor day weekend that's correct and then obviously communication couldn't a lot better than what happened here and i think that's one of the things will be inquired into but from blue shield perspective i'm not sure what else what more could have i was they could have made more effort to contact and speak with the facility but here the seem to me the facility could've done a lot better too in the facility didn't contact them until late friday before labor day weekend when they could have made contact on tuesday or wednesday everyone knew labor day weekend was coming up so should we factor that into our consideration as to whether blue shield blew it here no because the claim wasn't denied until friday so they appealed this in as they could they feel the same day and the timing of course is unfortunate and so what calls for is communication between the administrator and the treatment providers to make sure they're making the right decision on a claim and the record shows in this case that they spent two hours on then made a decision but when did monta nido contact blue shield saying now that you know this is a very stressful the boyfriends back in the picture when did that initial contact occur well they had already they had already discussed kristen situation with blue shield and they have been ongoing discussions but with regard to when is your question after the appeal when was the next time they go i mean as i understand the record this is why you can help me out here is that the labor day weekend was approaching and someone contacted someone first did the facility contact wanted needed to contact say hey the weekend coming up she really need to say that we can because the boyfriends back in town or did something else start this process that led to the denial and led to the appeal well the denial occurred occurred first and then well what do you to follow but what general i guess what i'm asking is that was there a previous agreement or understanding that your client would be out of the facility that week or did blue shield how the blues say hey labor day weekend coming up you've got to be out of you know well more like the latter the way these claims work is that the insurance company approves treatment for time periods usually a week at a time  and blue shield had not indicated previously that this was going to be the end so at the time it denied the claim there was no and that was on the friday yes ok there is it  was it was a surprise that because they had been because they've been paying benefits up until that point i thought i was like thank you and this this is i'm sorry let's assume hypothetically that there was a procedural error in the denial the claim on friday why isn't that cured or rendered harmless by the reconsideration later would that include all the medical records well they certainly when i say they i mean money was certainly had the ability to provide records and they did so any kind of review of her claim the reason is we bring it up is in the context of determining how much deference the court should give to the decision and the reason we bring it up is because it is a very quick  i would argue railroaded way they handled it shows that their decisions on the merits regardless whether they got documents in the future or not shows that they were biased in favor of denying the claim and i'd like to add since my time is getting s this is only one thing we've cited one reason we've cited for why this court should be skeptical of what blue shield did we've identified other problems which is that blue shield use the same doctor use more than once which is against the research regulations which says that appeal to terminations can't give deference to prior reviews can't be conducted by the same reviewer their doctor carlton review the claim he made a medical necessity determination and then they gave it back to dr carlton again after they got more records and both times be made by health care professionals who have appropriate training and experience dr batten didn't have that experience doesn't contend that he did have that experience he shouldn't be signing denial letters for mental health cases and finally we've argued that blue shield didn't request an examination of kristen now research doesn't require that examinations be made of patients in every health case that's certainly not the case but in the mental health context which is particularly tricky those evaluations can be highly helpful and this court held in the pacific shores case that it exactly that which is that in cases where there is a significant difference of opinion with regard to what level of treatment someone needs an evaluation can be very helpful so those are the procedural reasons why we think that the court should be highly skeptical on the merits of whether she needed the treatment at all we we think that the record is very clear she repeatedly failed at lower levels of treatment and let me back up a second blue shield argument is that kristen could receive more treatment at a lower level so those are going is that she didn't need the treatment but she could have been at a lower level lower than residential which was in this case partial hospitalization or p h p treatment but the record shows that she had tried p h p team in the in the past it had been unsuccessful outpatient treatment had no worked and it's important to emphasize the difference between residential treatment and p h p treatment facility during the day for programming but in the mornings before they show up in the evenings when they go home there's no one around to help them and the record shows that kristen had no support network bush blue shield don't claim no state that quote patient's family is not a support system she had an abusive family history her father is an alcoholic in fact called monton you know up drunk her mother said she didn't want to be involved in christine's treatment because she was afraid that should be blamed for kristen's condition the only support she had was her boyfriend who broke up with her during treatment so this is a person who left her own devices clearly would have struggled and the reason we know she would have struggled is because montenegro's clinical notes show that she was struggling she was constantly thinking about how she could lose weight while she had gained weight over all during the program she had lost weight just prior to that i'll decision she was suspected by montenegro of bingeing and purging right around at the time of the denial the reason they suspected this is because she had significantly elevated heart rates  her sitting standing pulse was one forty six and one fifty two and for that reason she was placed on increased observation by mountain ito and all this is going on right around the time of the nile so  combination of the clinical notes which clearly show that she was struggling for a lack of support outside the program and the fact that blue shield made missteps in the way they handled the claim this combination of factors should have let this record to find standing so i think that that's where the district court should have started they argue in their state in their reply brief that the district court held that kristen is responsible for the unpaid bill to monta nieto so first of all that is not an accurate reading of the order the order actually says that kristen has adequately alleged standing and as we argued that's not sufficient at that stage of the proceedings which was at that day a trial the district court had an obligation to look at the evidence that was submitted and in this case there was no evidence submitted of standing and in fact the court gave  supplemental briefing after the trial and an opportunity to present additional evidence and briefing of standing and the only evidence that was presented was an attorney declaration purporting to authenticate a ledger sheet from mountain ito the facility that shows strikes me that if if if the ninth circuit were to rule and insured does not have standing  anywhere near that broad well it seems to me just kind of you're kind of in the homes of the horns of the dilemma namely you're saying well she doesn't have standing because she doesn't owe the money  but when you get to the merits you say there's a distant genuine there's a dispute about whether she was in titled the coverage and we denied it and she asserts that that that decision was wrong and that she proceeded to have to engage in liable liability or at least facially engage in liability and you say  it so you're saying on one hand we don't know it in the other hand you're saying we do it and that seems to me just a very awkward position for you to take on the standing issues but what i want to my missing i'm happy to address that your hon i think first of all that arc argument on the merits obviously presumes that the court has found standing as presume that that that the money is owed to someone or maybe zero to someone i just don't know but the whole process by which the debt was incurred seems to me a collateral consequence of the decision and also your honor to understand the way that this works under these under these particular types of health policies this is an actually it's not a policy it's a failure to pay and now you're just saying well as long as we ultimately pay it you're out of court that strikes me as wrong but i don't know that there are collateral consequences here i think you know me just the  stress to do any patient would seem to me to be a consequence i've asked you already know you are there and you're i'm eating into your time so i'm happy to address this and it's is that the relationship between blue shield through it's mental health services administrator magellan and there nothing that's why nothing prevents them from suing kristen c for the debt if it's owed you claim that under a separate green that they've agreed not to pursue that but that's potentially a third party beneficiary argument to the suit but i got to tell you this happens more than you would expect on these preferred provider agreements where actually the provider does go after the patient even though they have these agreements so there's certainly a risk there and we just don't have the record know whether it's how much of a risk so why not why haven't why isn't she alleged sufficient standing to get into court i think you have to look at the actual agreements here  used but this was at the final stage of the case i don't think we've ever reversed a district court for failure to inquire on standing as you're alleging and then basically saying the district court should have had a trial and standing but the we do believe should have let you look at the evidence that's right i don't think that the case would necessarily have to be remanded i think this court could look at the evidence itself and make that determination but when the court when this court is looking at the evidence what it's looking at is it can essentially do that analysis that that the court was just suggesting but actually play it out we know she has a risk because she signed a contract pay true presumably yeah so anyway if you're going to disney she has a defense to the suit your honor anyone can sue anyone i don't know that the mere risk of a suit is is enough for article three standing under under the constitution i think she has to show and i won't concede us that in any case in which an insured proceeds to pay a contested bill you owe it under the agreement i'm speaking in the abstract here because i prefer to understand cases in the abstract first and then go to the particulars if a patient is in a hospital and there is a dispute between the patient in about whether the patient should be discharged and the patient makes a judgment that in her or his best interests patients remain in the hospital at that point under your agreement with the hospital you're saying that you owe the money not the patient and therefore the patient doesn't have standing to vindicate any rights he or she may have or s aying is it would depend on the nature of what it once you start getting into the depends it seems to me you're in court well indeed but again the point is that in this case the panel has the evidence that it would need to see how that how that court decision would turn out and that's what that was the district court's obligation and i would submit that it's this course role as well on the appeal to actually look at the evidence and determine well does she actually looking over the money just court can't look at the evidence of there's no standing you're out of court well you know that the evidence i'm standing around here is what i mean the end of the day she signed a contract to pay the money and you claim that she has a defense to that yes a very good one  very good defense but that would require resolution and just tell you in the real world that there are providers who regardless of their agreement with the insurer their providers who go after patients for the excess amount so she's got a defense potentially but there's enough risk there to probably get her at stand by your own i think it's a otherwise why would you pursue the subpoena i mean that's that's if she thought there was no mean she pursued this case because she thought there was a risk the patient abstract abstract goes to the hospital there's a dispute about whether he should be discharged or not and with the insurance company and so abstract signs an agreement agreeing to pay the bill himself coverage or not the patient to ultimately has the final decision he goes ahead and does whatever he bloody well pleases and you're stuck for the bill anyway so what's the use or going about coverage you're going to pay it under your theory you're going to pay the bill no matter what if there's if in fact it's determined to be yes right and we can argue with coverage about the care of you with about coverage with the facility which is the entity that would be receiving the money the facility what about the poor patients stuck re entry into the community have resulted in or would result in an exacerbation of the eating disorder to the degree that would necessitate continued residential treatment in this case in searing the compressed timeline that we have i think that friday the key day if your argument down what blue shield did and what with in combination with the facility satisfies that prong for continues day  which is he said that it was a surprise when this was denied on the twenty ninth that there was no warning that's actually contradicted by the record of the record shows that on up on august twenty second doctors at the tel end doing yet another one of the current reviews to see whether additional treatment was medically necessary he said it appears that the pain i'm paraphrasing but appears the patient is getting better here's the patient is ready to leave residential treatment but i'm going to approve coverage for one more week to allow for discharge planning and the evident that the record shows that there was no discharge planning by month and you know they just continued to treat her they submitted another request for more time on the twenty ninth it was that morning and then at four fifty nine pm on the friday before a holiday weekend they submitted an expedited appeal which requires under research regulations requires a response from blue shield within seventy two hours and it's not in the record it would be speculation but they appear to have left the office for the long weekend because nobody responded until tuesday morning and under these and so what blue shield did was even though there was evidence in the record that residential treatment was no longer medically necessary it did not deny it on that ground it denied it for lack of medical records because when months in nato submitted its expedited appeal it did not submit any records which would have been customary and invited her or the facility to to produce additional records and they did and they reviewed it and dr radwan an independent third party board certified psychiatr spoke with the treating physician at monte nido and based on all of that they made the medical necessity decision and it is it was the district court's job to review all of that evidence at trial and to apply the abuse of discretion standard which is what the montenegro and i think i what the court has done to stand is the way that these claims are processed by insurance companies this is as i said earlier they approve them week to week and that's what happened here and sure as companies are constantly telling facilities we're going to pay for one more week we're  the week we think your client is doing better so there is no reason for month and year to think that this was the last and final straw the other thing the council said was that this is an expedited appeal and therefore they were required to act on it quickly and that's clearly had to choose the expedited appeal because they couldn't wait for weeks to find out whether the blue shield was going to pay for this ongoing very expensive treatment so at that point there was no reason why blue shield could not have contacted month and you know and said  look this is bad timing it's right before the holiday weekend can you give us an extension on the seventy two hours certainly mountainy to would have agreed to that because this is not an emergency situation but blue shield didn't do that instead they decided within two hours that they were going to deny the claim without consulting so those are the primary problems that we have with the way they handle it procedurally in addition to the other procedural problems i already mentioned which is the fact that they use the same doctors over and over and use doctors who didn't have any summary judgment under this current standard review we would be sending it back to the trial court for what well i think the court has two options one option is to say it doesn't matter how much deference we give to what blue shield did the result was incorrect and so therefore we're going to reverse an order that benefits be paid the other option is to say plaintive you've alleged that there were these procedural problems that should have reduced the district court's deference to the decision so we need to send it back to just to court to apply to look at the evidence again under this new less deferential standard of review obviously we'd prefer the former but i think  action against money and say you violated this agreement and therefore you have to or don't have to do x y and z but they haven't done that and they haven't given indications that they're going to do that so i think we have to proceed here and i'm out of the state is twenty eight thousand so right i believe that's correct ok thank you thank you thank you for your arguments the case just for you'll be submitted for decision and