please the court with the court's permission i'd like to argue from the table so i can have my notes thank you my name is tim box i represent the felons in this case with me today is my law partner amy roberts and the question presented here is whether title two of the americans with disabilities act or california's under a civil rights act prohibit california's long term care insurance program from refusing to provide any coverage whatsoever to persons with designated met medical conditions the court erred the court below erred in granting summary judgment on our under a claims for two reasons first california insurance law requires  insurers to provide coverage to persons with disabilities for all expenses other than those that directly result from their disability is there a difference in this particular insurance program the program from wh california is that we rely on the proposition that they must provide coverage for all expenses other than those related to the person's disability self insured statute it applies explicitly self insure employee welfare benefit plans you know in order to prevail what do you have to satisfy the court of what most you said it's like ok we have two arguments one is a legal argument which i'll come back to the second but in response to your question factually we must show that there are disputed issues of material facts that precluded the lower court from granting summary judgment because the underwriting guidelines that were used by the insurers are arbitrary arbitrariness means that un violated and if the state statute is violated by and insurance practice and the insurance safe harbor provision of the eighty eight on a longer applies so we rely on the factual proposition that it's arbitrary unde arguments that there's various characteristics that increase a person's risk of needing long term care smoking is one of them gender is another marital status is another most significant is a in order for underwriting it's not consistent with standards of practice to have that risk characteristic exclude somebody from an insurance program well a similar characteristic that poses equal risk is not exclusive so our argument here we are we are relying on california insurance code section one zero one two three point two and i want to be clear we are not arguing that they can't that they can that they're required to accept our client for all purposes we're simply saying that based on section one zero one two three point two they have to at least provide insurance hovering costs that don't result from their disability there's a really good example of this concept which is our clients the appellants are at no greater risk of being in a car crash and needing long term care insurance because they were in a car crash than anybody else in the population now that argument and let me say that we made an argument in our brief that we're stepping back from and that was that the ninth circuit's decision in love there else requires scalpers to let everybody in for all reasons i don't think that's a fair character self insured employee welfare benefit plans like this plan to cover the expenses of persons with physical disabilities except when those folks expenses result from the disability again this is a fairly  we're not asking that the insurers cover all expenses only those expenses that don't result from the disability will this diabetes if someone is in a car accident and falls asleep at the wheel and is in a car accident your position would be well if the person the situation where it would be yes you could and that is going to present an issue of causation that the insurance company's going to have to work through but that's true with any plan that's covered by section one zero one two three point two the legislature has created this requirement and it's not a sufficient basis to ignore that requirement to say that sometimes can be hard to me you know it may be the case that with an attenuated fax situation you're going to have hard questions of causation was the expense the result of the disability or not but that's envisioned by the nature of the statute and the statutes out there so it must mean something and so we argue that in this case means you can't we believe that the fact that there is a genuine would have actually been accepted into the program absent be arbitrary guidelines but that's not our burden the supreme court made it absolutely clear in the northeastern and the adorama he says that in a case like that insurance plans can reject people on the basis of their being too high risk not in california not in this limited circumstance one zero one two three point two says that think your honor one zero one four four is one of the statutes in california that prohibits certain types of insurance practices it prohibits exactly what you just described which are decisions that are based on sound actuarial principles or re experience it's not the only pro have vision on insurance practices in california a second prohibition is found in section one zero one two three four two which says you can't if you are self insured for a welfare benefit plan refused to provide coverage for those expenses not resulting from the person's disability so there's two different prohibition your honor i think that one of the tasks of statutory interpretation is to give meaning to both so one zero one two three point two has to have some meaning it can't be sitting out there without meaning one way to reconcile both of those statutes is to recognize that no risk makes someone on insurable that's not a radical concept that's a concept that judge posner pointed out in the doe case it's a concept that's reflected in the legislative history of the a da in the department did you have a question i'm sorry flow of cash is from the reset of the members of the long term care plan to the public  contrary holding would reserve result in some observed results for example the sole danya in any other relative who is in this plan or who applied for the plan could not have a title one claim because with respect to the plan they're not employees and the state is not their employers so there would be no set of one claims in addition you can think of kind of the observer consequences that would occur w of employers often give us perks to their employees they pay for parking in a parking garage normally a lawsuit brought by a disabled individual against a parking garage would be under title three but the proposed standard by the insurers here in if the customer the stable customer got the parking by virtue of his or her employment suddenly that would transform that case into a title one case in means and that means that all of the regulations that have been carefully crafted over the years under title three that tell you how wide a parking space should be what the cross well should be all of those would be out the window because simply because the disabled customer got the parking space by numerous examples in our brief of the existence is that our medical expenses that are covered by this plan for example again i'll be brief the plan provides coverage for nursing home expenses the plan defines a nursing home number one they be medically necessary and number two that the individual meet the definition of being chronically ill so we're talking about by definition of the plan expenses that are medically necessary for chronically ill people these income first numerous medical expenses to the court went wrong in not recognizing that the right type of expenses the second way the court went wrong is in looking at section two hundred six six one which doesn't deed require underwriting we're says that they have to have quote appropriate in quote guidelines now the statute doesn't define the word appropriate but under any definition of that term that has to mean that the underwriting guidelines comply with other applicable term care group it really is the undisputed facts in this case that not only justify but that compel the rejection of the challenge to  mind at all stages of analysis and it's fitting that both plaintiffs who present here suffer from extremely serious medical condition in the one case post polio syndrome with many complications in the other case of diabetes one in very poor control with rather recent episodes of serious problems including loss of consciousness that resulted in hospitalization and organ damage that responded slowly to had about a treatment and this constellation of extremely high risk provision it's set out right that this legislation was not intended to interfere with the traditional functioning of of reasonable and rational insurance underwriting and eligibility standards and the application of those standards the plaintiffs have virtually conceded that the eighty eight states are are but they try to get act mandated by or consistent or not inconsistent with state law so then we turn immediately to state law and the most direct specific and applicable provision to be found in state law is of course in the in the statute that created the public employees long term care act itself and the language in that state statute  admits of no ambiguity no one can reasonably say we don't know what it means when the legislature said that affleck that first of all the cal board the board of california's has the right to pop promulgate eligibility and underwriting standards but not only that it also mandated that individuals who do not satisfy those eligibility and underwriting standards cannot be enrolled into the program therefore you have to section one hundred one two three point two of the insurance code we do not believe even though why it's to this government created long term care program for two reasons first of all it's not a self insured employee welfare benefits like it is self insured to be sure but it's not an employee welfare benefit plan such a plan  absolutely nothing at least into the period of time that we're talking about in this case for the cost of administration for benefits for claims absolutely nothing so it's not an employee benefit plan in the insurance co that seems to deal specifically with maternity and sterilization procedures and things of that nature so i depending primarily  generally understood to mean major medical coverage or health coverage that's not what we have here the only thing that triggers eligibility for benefits in a long term care program is if someone experienced is either at a loss of cognitive functioning capacity or a diminution in their capacity to handle the activities of daily living long term could incur a host of medical expenses and present them to a long term care i'm sure and they would be rejected and last those services were specifically for provided to assist setting would be magical in nature but that's you know it's the medical in nature to see what makes it cover is the fact that that service was provided to assist to compensate with the loss of con cognitive functioning or the loss if he ate capacity so that when i'm sorry i was and i thought you were asking your honor what i was relying on for the triggering mechanism for long term care coverage that that is a matter of policy language and those experts s all well and let me reiterate that expenses that could be characterized as medical are sometimes covered and sometimes you know but the fact that they know you are because we believe that this phrase hospital medical or surgical expenses point out to the court that even if one or one to three point two of the insurance co was thought to be applicable despite my arguments to the contrary if it  clearly would be superseded by the enabling statute for the long term care act itself which express fully provided that no one shall be enrolled if they do not meet eligibility and  term care act provision which is much more specific and and speak specifically to two eligibility requirements would surely trump this provision of the insurance co he also had no criticism whatsoever of the particular underwriting decisions that were made in this case he he couldn't say that jakim is solved on your rejecting mr neely was in any way under reasonable that it wasn't in any way  like to come into premature benefit status all that he really said was well you know okene is an increased risk we know that gender seems to be  associated with the rest we know that marital status seems to be associated with with risk in the same for age and so they are his argument seems to be  if a program  recognize they recognize as any risk factor and fails to make that factor a criteria of declination or then the program is just arbitrary so he tries to cast this this broad brush label of arbitrary on our underwriting standards maybe i misunderstood him but i think he was more in there and then i think what it was saying was similar are the equal factors smoking marital status or gender age pose an eighth quibbling wrist as do the plaintiffs particular medical flaw files profiles and in the absence of that evidence of equal and he certainly admitted he couldn't say that because he had no qualification to assess their risk level at all then it just doesn't make any sense to say that a program that that the program and the evidence in this record is completely undisputed that to accept individuals posing a medical breast as high as that represented by the plaintiffs a profiles would turn this into an experimental long term care program it would undermine the actuarial soundness of the program and that the result of doing so might very well be spiralling cost with all of the provided by dr elliot it's provided by our actuary mr gordon traffic now and those opinions are completely undisputed so what the plaintiffs are really inviting this court to do is to be the first court in the united states to go out on a limb and to say that we are going to require you california to after all applicants are however high their risk whatever financial impact that may have in your program despite the clear language of the long term care act itself and despite the safe harbor provision of a yes you we believe title two does not apply because the long term care program is not an out of if public and a d this is not a a for profit insurance program that has been set up by the state and which invites joint members of the general public to apply this is a a program which is entirely cell funded by certain california employees and  must begin with the plain language that means that that plan is covered by one a one two three point two the only other question is there a way to harmonize that statute with section two one six six one the statute that governs underwriting of this long term care plan there is the fact that they must engage in underwriting doesn't mean that they have absolutely no just no limits on their discretion and your right to one six six one does not mean for example that they could exclude people because of their religion or their political affiliation the fact that they engage in runs or underwriting does not say anything about limits on that underwriting and we submit that section one zero one two three points to is a limit