good morning ladies and gentlemen our first case for this morning is  thank you and may please the court or harass on behalf of the talent mr sharply me i would like to focus this morning on the two questions on which this court specifically requested supplemental briefing first whether survive so can i just clarify they were they were applying it i suppose initially by refusing to approve the other three drugs that he needs is that correct eventually they move him to the managed care program amended complaint which is the operative complaint here alleges that he was denied on multiple occasions for these additional drugs and that really goes to sort of the heart of why we think that this case is not moot because the same officials have already acted on the same requests that mr sharply will need to bring again in the future when he moves out of the county as he states that he intends to do and so cases both in the grand foresman context and in the voluntary suspension and capable of repetition contexts make clear that mr sharply should not have to suffer the injury first he shouldn't have to be denied his medications once again by these very same officials and then coming to court that in this case is particularly grave because it will cause him to risk his health and he claims he  his life when and if he moves to another county that does not have a similar managed care program and suppose he stays in winnebago county is there anything in this complaint or in the record to suggest that the state might decide that even people in managed care programs can get only four drugs a month or decide to move him from managed care program back into whatever the alternative is you know a p p o or whatever they have that she he specifically asked you know is this permanent and she said no it's not this could you know you could be subject to the for prescription limitation again and again she identified these two specific scenarios either if he moves out of the county or if the state's fiscal policy changes which would countywide you know your honor i'm not sure that the that that the record really reveals whether everyone in out the county has been managed care there's no issue though that he was individually targeted for this was i'm i'm not i guess i'm not sure i haven't seen any claim to that effect no i don't think he claims for example has a retaliation claim he doesn't claim that he was sort of placed in this program specifically q i'd get rid of this lawsuit though i'm not sure he'd have to make no indication that the state is going to move it this is not the kind of state a move that a state makes lightly such a major change in the way that it does medicaid and i guess i'm anybody anywhere in the country could say well i would like to move to a place where i believe state officials are violating state federal law in their administration of a benefits program that i would like to benefit from when i move there and i'm just not that's a pretty remarkable expansion of just issued delivery at least beyond the susan b anthony aren't specific you're just he has had this past history which susan b anthony list of course says is quite important with respect to the credible threat of future and forstmann he's had this past history in which these drugs have been denied to him even though he has been prescribed these drugs by his doctors illinois i think that would be a more complicated question your honor given the inter state issues there well because in that case you might run into some of the federal that the decisions about federal benefits that that my friend and the other side has raised but i think that here we're really swirly within you know mr sharply as claim is that the state is distinguishing between these counties and if it wants to have managed care that's perfectly fine that is a way that they can run their system but  challenge policies in counties where he is not resident into which he is not subject but i think that the reason why just saying that individuals in those counties that currently do not have managed care could bring this claim and the reason why that's not a really satisfactory answer here and you know it's important to remember that susan b anthony list sort of dials back that retirement to the sixth circuit had said that it essentially had to be about to happen and this member it said no you need a credible threat of enforcement and the past history of enforcement against this particular that he would like to engage in specific conduct in the future is sufficient and that's exactly what mr sharply need alleges here so i have two questions about that one under susan b anthony list or anything else is his reason for wanting to move to stevenson county of any relevance and my other question is a broader want to me it seems to me you really have three series of justice for billet you've got your pre enforcement challenge which is judge hamilton points out is really almost most interested in is the voluntary association theory since i think it actually avoids some of the problems you've been discussing with judge hamilton although the reason i asked the first question is it seems to me if he's trying to move stevenson county you know because he has relatives there he can live more cheaply you know there's something that makes it a very concrete thing he hasn't just sort of thrown a dart at the wall and said how about stevenson county illinois it might believe that he has alleged that he would like to move because he has a better job prospects in stevenson county and so that would be his his motivation for moving in that at the time that this prescription limitation was being applied to him he wanted to move but then he you know he was removed from that limitation and he was told well if you go and you pursue those jobs in stevenson county you will lose access to the medications that you need to survive and so that obviously does make his injury i think quite imminent here and then second i completely agree and understand your honour's point with respect to voluntary secession we do think that sort of the you know hitting the hammer or ending the now with the smallest hammer here voluntary situation is a very straightforward doctrine in this case because defendants once this lawsuit was filed removed mr sharp leni from the program part from the purpose corruption limitation but they have not disclaimed that limitation they have not stopped applying it they in fact apply it to lots of other people within the state and they have it is absolutely clear that the for a drug limit won't apply to mr sharply in the future and so let me ask you this going back to the question whether virtually everyone in winnebago county was moved to one of the three managed care programs that the county apparently has or whether it's just mr sharply is that a question that goes to standing or does that go to the the merits of the claim he's trying to bring true i don't think the i think the supreme court has made clear that we need to be more skeptical of any change that happens once a lawsuit is filed and it doesn't necessarily have to be with the sort of bad motive of taking this particular individual that said essentially that in the managed care program you will forever be guaranteed all of the medications that you need i thought that there was some claim that aren't was also saying if the fiscal situation goes downhill maybe even the managed care changes not not directed at one particular lawsuit graeme i think that's right your honor but again i think that the state is saying more than just maybe what we consider as we always consider you know as we always leave open the opportunity to reconsider all things well here you have it's a challenging program as a whole i mean i think it is a statewide program and if it has a four prescription limit he's saying that doesn't comply with the medicaid act that's correct your honor he's saying it doesn't comply with the medicaid act that the way it's being carried out to process and here's a variety of challenges and his own specific prior experience with the policy really makes those concrete because he has had this experience you know if this case goes back on remand as we believe that it should mr sharply is prepared to offer documents that say you know the reason that your medication was denied is your medication was denied and so he has sort of these concrete experiences where the states you know whatever it sort of says on the books it really hasn't been applied across the board in a way that prescription drugs myself some are very cheap could be except the fact that one may cost is one recent three three was three dollars and fifty cents for ninety days that's pretty cheap but it may be an essential drug can he pick out for the most expensive ones and well worry about the ones that are very cheap and stay within that we're going to play on i do believe that he has some say in terms of which poor are covered but he specifically alleges that he can't afford all seven or eight actually in his in his case and leaves and so i don't think he has this problem of you know the three dollar drug or the four dollars drug he has clearly alleged in the complaint that he michigan to have sort of a certain amount of selection and they were actually said state would actually subsidize the ones that are very hard to get ready or not enough people so that's just practical question and maybe there's it's not relevant here but it's curiosity that there's no program yet my understanding again just from mr sharply the allegations is that he has been permitted some flexibility in terms of which drugs are covered but that that has not allowed him to sort of pay for the whole bundle because he twelve j that does not prohibit any medicaid beneficiary from receiving a medically necessary truck the statute is a funding statute in the talks to the pharmacy and it says to the pharmacy enough thirty day period but you're just talking about per month per beneficiary in that thirty day period when the beneficiary comes in with the first four prescriptions those are paid no questions asked the farm she gets paid after that somebody comes in and says they went to the doctor and they said i'm running out of my medication i need a new prescription the doctor then takes a look at his or her she has her record says oh this is the fifth prescription that i've given this person this month right then the doctor  the doctor says this is medically necessary it's not to put it there it will keep him or her out of an institution six prior approval and they get a response from that within twenty four hours or if it's a weekend when the department is closed they're given a seventy two hour emergency supplies so that no one is caught short no wonder this is out of lock up and we think by the way you know there's an implication here the prior approval is some sort of the you can't thing right but prior approval there's nothing in the record prior probably negative somebody comes in and says they're the doctor goes in and says here's the fifth prescription but in this work that is excuse me her part as i understand part of the complaint is that the system is in fact not working the way you just described that that actually gets to the x party young idea that if the system were working so that twenty four hours or at the worst seventy two with an emergency supply was there and absent that was the first thing i wondered about this case you know if you could get the rest of your drugs and prior approval what was the problem but then it was clear that his allegation at least is that it's not work that way that to me is an issue that does not go to his standing to complain anything it really goes to the question whether he'll be able to prevail eventually and if it's working the way you say then he's going to lose his case but that's not standing point there was just to push back on that a bit your honor if i make it the allegation i the system is fraught with flaws and nothing less than laughable we're here having this entire discussion because all he alleges doesn't identify any drugs he just says i think prior approval is laughable concede or the complaint as it's coming to us tells us that he's getting for drugs before he's moved over to the managed care program now he's getting whatever you know seven drugs eight drugs i thought it was seven but maybe it's a he's getting all the drugs presumably the managed care doctors are not frivolously prescribing the other for drugs and his allegation as a pro se litigant i would translate to say that prior approval system isn't working that it's that it's not maybe on paper it looks great but on the ground it's not great so why isn't that  i'm focusing on the original system that existed at the time he filed the complaint and the fact that by moving him to managed care and also with the statements of his arms this might fall into the voluntary association idea that the state has temporarily decided to give him whatever medication he wants through this managed care program that it might decide again to change and go back to the what you described the first four no questions but then drugs five through and you've got to jump through some extra hoops right and that's one of the two responses that you honor is you know if we notice in all of our discussions it might some day there could be who knows who knows and in terms of voluntary stationery flex i mean i don't think it's thinking of susan b anthony list i don't think there's anything hypothetical about it when we have  return to his or her even way actually and is to attempt talking about that's not that's entirely unrealistic in the situation actually that's what judge hamilton said here's a situation some questions on the other side here's a situation where the state has recipient is now to manage care the record does not contain that information or isn't that important i don't think it is not from our perspective no if the question your honor if they just put and knowing people in managed care three levels is relatively straightforward in terms of voluntary sensation the notion that the state of the noise would roll out managed care to winnebago county in order to stop a lawsuit and then as soon as the last it went away it would then take all of this  county that's not right i agree that sounds silly but but what i don't understand is why it would prevent the state of illinois from saying we don't really care what kind of program you're in managed care not managed care we're going to have a four prescription limitation four for the no questions asked group of drugs you know i have two questions what would prevent them the course is nothing would prevent who knows what might happen but that's the whole point here because if he really needs to move to a county that doesn't happen to these populaces one of a whole county that's one of the bigger counties in the state aside from you know the chicago and collar count can get a job he can probably live more inexpensively and in other areas and yet the only way you can take advantage of that is to lose his medications so he has to compromise his health  in order to be in a position where i take it you agree you would have standing if he moves first to stevenson county and there is no medicare in his back under the four prescription limit and the system isn't working for the pre is a negative thing second letter my i'm just saying it might be a great thing but if it's not working if it gets lost in a bureaucratic you know cyber space then even though it might be a great thing where somebody is taking a to engage in constitutionally protected conduct too there is a statute that penalizes you for doing that puts you in prison find civil point whatever it is it doesn't but that's a narrow listed penalty and i take it you don't think activity is procedural due process where does this statute five twelve j say if i file an appeal if i ask for a hearing if i file an application if i engage in my constitutionally protected conduct of due process i am penalize it's not here it's nonsensical which is probably why it wasn't in this court's order to brief frankly right so the whole notion that due process provides any support for susan b anthony is just it's not a fit at all with the statute he tries the interstate travel but you know what that fails as well for many of the reasons we've already talked about this morning right you don't get to if if there is a fundamental right to intrastate travel and if it operates like the right to interstate travel you don't get to say i live in connecticut i would like to live in hawaii but why don't the given the same bag of goodies or the same bag of benefits and so i have a quick but that's not what it's about half of course but the interesting thing about that  is a federal state partnership so every state has the prerogative and every state has indeed decided how much of the medicaid program wants to have and so i think that factors vary significantly inter state movement you can't force the state of hawaii to have the same medicaid program that vermont guys it's under this federal statute itself the partnership because of why you can decide to have a generous foreign minimal one whatever it said in terms of federal wage benefits right whether or not and i forget the exact term but if you live in new york you get a little bit more money than if you live in des moines or something like that in terms you are selling the supreme court has said it does not state a violation of the interstate right to travel because you claim well i live here i believe the states were connecticut and why you don't get to say in connecticut when i live near your new york i get more federal wages but when i loop moved to hawaii i get fewer federal do that it's very clear that it's the right of each state to make that decision but once you're inside the state there's a program and for the state to say oh you know people live in chicago get those the people of iraq forget that and people who live you know in benton illinois get something completely different that's it's at least a different legal issue yes my only point your audience is that the federal wage hike that's all just within the federal system so that when you run with the nets i say you lose the whole federal state partnership federal government and what it does not in terms of partnerships with anybody so that's a kin to what illinois does with five twelve that if somebody is in connecticut and they say i get more federal wages in connecticut than if i move to hawaii and i he can get them in managed care in winnebago county can't get him in stevenson county because the state has not created a mechanism that's going to work and i'm not sure that least for standing purposes that the pre approval process doesn't work and he's experienced it already before he was moved to managed care and so on the merits is he going to prove that he thinks he has a better job prospects there he doesn't tell us when he wants to go if you want to go it doesn't say in five months i'm going to move there because i have a job with a b c corporation there's no allegation of that just didn't want to do that i think he sees himself in a catch twenty two because if he  lane's allegation the reason why we're here the per pupil is laughable whatever that means we have no idea whether when he goes if he goes to see the same county if he's still ill at the time if he still needs more than four drugs experiencing there are just so many ifs involved in this saying that this is exactly why the just report said look there's no reasonable expectation that this problem is going to rise again so if we take a look at these three standing components quite simply right there is no constitutionally protected activity that he wants to do that he is going to be penalize for five twelve j is a political each and every county of the state his complaint about prior approval is that there's a benefit he has in traditional notions voluntary association or cable repetition again as we said for for a brief the fact parents aren't here right capable repartition this isn't something like pregnancy where the dis by its essence cannot survive the life of the last you know i think you're right about that i don't see this is a capable of repetitions it's not the same kind of evidently short periods and then again just just to put a ribbon on the voluntary it it's not medicaid forever necessarily is it now that's your question is a possibility yes and that's the end of the day is what's the hallmark of this case and what's correct about the district court's decision there's a possibility that a lot of things happen he moves to another county he gets a job he has a medical program the world's a happy place we don't have to resolve any of these issues he moves in and you know he becomes eligible for a different program we don't have to resolve any of these issues what is what if there a possibility that's the hallmark of why we're here but that's a can't move without a guarantee that at least for the interim his medical needs will be taken care you're on i suppose the question is are the federal courts out here to give people guarantees against all anxiety right i'm going to new schools that way what i mean that's the question right now it's not the question is what does the medicaid program guarantee those who participate in it i'm going to i see my of with our record here because i tend to agree with what you're saying about county by county policy decisions but we really don't have much about that in the record  me is saying i didn't get a choice i just want to understand it maybe this is the southern way need to be explored if the case goes back but i assume that there would be some provision that if to comply with the federal waivers needed for these kinds of managed care programs that if the beneficiary or participant fails to make a choice when given the beneficiary is given a choice they get a letter that says you have these two choices or three choices please respond in the market you can like if there's no response they get a second letter that says you get you have these please respond if you don't we will pick one for you but it's your choice and you have these to try to chances to do that right at but if you don't you need to be in managed care and so if you wave at them we'll pick one for you if that's your honest question y the this gets to whether there's a new claim being involved here right his claim and managed care in his complaint was a violation thirty nine hundred sixty eight twenty three that i want to get to you know nerdy about it but the application is that he has a choice to obtain didn't see anybody i want and you can't make me do it because you can't force me to see a doctor quote i have quote never seen or even knew that so that's his complaint now with turns out of course it just works as well you're just simply wrong of course they can put you managed care and he said ok when i said i got to see anybody and you can't force me to see anybody somebody i never knew what i meant to say is no i don't get to see anybody and yes you can't force me to see somebody i didn't know my complaints are entirely different you didn't give me two choices thank you i actually had on a couple of points that came up during mr maja's time first we talked a lot about what exactly is alleged in the complaint with respect to mr sharp finis past experience with the prescription limitation i would just refer the court  quickly to a few paragraphs in his declaration paragraph two on page eight he says that on numerous occasions his medications were denied paragraph fifty and fifty three and paragraph sixty three of the second amended complain allegations and so i don't think that this is just the laughable allegation added mr was talking about there are specific allegations in the second amended complaint and mr sharp in these declarations stating that he himself was denied administers this program throughout the state has already decided that his specific medications for his specific elements are not medically necessary or are not going to be pre occupied for some other reason that we don't know and so he has come to court with clear allegations that that has happened to him before and the expectation should be given that the same officials and mr sharply need same drugs and same illness are illnesses will be an issue in the future that it very well may happen again that of course also speaks to the voluntary suspicion point complicated program very expensive states are tinkering with their policies all the time constant dialogue mineral government about waivers experiments  etc nobody can give guarantees of indefinitely i think i have a job distinction between a guarantee of indefinite length and what we have here which is a state official as judge would point it out specifically saying to a benefi will apply in the future if x y or z happens and you're quoting from friends of the earth right friends of the earth supreme court says in two thousand that the defendant the state has to demonstrate quote is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur so there's a reasonably thrown in there but also an absolutely clear thrown and that's practical manner and now we know exactly but i do think that here and if you ask is this reasonable when he's had a specific conversation with a specific stated officer who says you know if you move or if the state decides that we don't have enough money to keep doing this even within your h m o program you know you could be you will be subject to this limitation again well there's another factor as well which is that the court as it's called there's always the supreme court said in a two thousand and twelve case knocks against service employees that it will not assume that the defendant will refrain from the policy under attack if the defendant is still asserting that the policy is constitutional so the defendant's position where the defendant is acquiesced and said we recognize this is wrong apparently plays some weight in that you have argued is not the state's position here right and i think the state would have to concede that that's not the state's position given that they are applying the four prescription limitation in other counties to other individuals they have not said you know we agree that of whether certain conduct is analyzed but there are many other pre enforcement challenges to medicaid provisions and the supreme court heard one in the pharma versus walsh case the d c circuit recently heard one in the  good sense because here it's very clear that mr sharply will suffer as your honor pointed out grave consequences if he is forced to move first lose access to his medications and then litigate later and sort of refile you know we see how i believe this lawsuit was  and thirteen it takes a long time to get before a court to have somebody say yes you should have been getting these medications all along and requiring mr sharply to do that while his health suffers is sort of exactly what these cases are meant to to ensure doesn't happen effects an individual's constitutional interests and so whatever the sort of fine points on intrastate travel are that doesn't defeat standing at this point because he has an arguable interest in moving to another county and that interest particularly because the the inter state cases are different for the reasons you're or not it is at least efficient to satisfy the standing under seating at the rest or again under the voluntary sedation doctor and so if the court has no further