we are ready for argument in our first case case solely about only duction and services which happened in two thousand and two certainly that was a one of the many violations that we allege here but at carr your attention to the fact that medicaid act was arbitrary and capricious i ask you a question about that ma'am the district court in dismissing the federal defendant the district court says that the plaintiffs fail to identify a specific final agency action that has caused the  force but also specifically challenging the approval of the two thousand and one that is one of the specific things that we did found out was a final lack when they approved the  and as a south carolina court of appeals ruled in star still the sole reason for proving that and then it was budgetary that the states if they had a budget reduction and c m s the application the new waiver program went into effect in twenty fifteen did it not just that still to sack also have the caps that formed the basis for your challenge well unbeknown to the public the the  first wife or a man in the program has been going on for a long time yes renewed every five years right so the first renewal that is it issue here with the two thousand and ten renewal it expired in two thousand and fourteen you're tell us how your clients have what act injure your clients by the federal defendant's well if you get a really important document it stat update number four which says that all if you have a budget reduction wife can do we can limit the people coming in but you can't limit the services that the person needs so when they approve that waiver they printed based on on false information that there was a budget reduction because it wasn't a budget reduction it cost tremendously more  i'm sorry they meaning the federal defending a mess yes your honor they have a role to plug and i think but i think that asking them to play the appropriate role that sounds like that's the kind of thing that is committed to  under the a p a it seems like now you're back into we just think the agency ought to do a very job supervising south carolina in the way that ministers this program and i don't see how that is not something that is committed to even see as fresh and we could redo it we're not n the one hand if what you're asking for is sort of the federal of i know you a better job managing this program that's committee agency discretion i agree if you are specifically challenging the two thousand and ten waiver approval that seems to be mo unless you do you have a challenge outstanding to the two thousand and fifteen well it's an ongoing violation because of that in the caps experiment that that was sort of goes back to the point i'm not quite understanding about the new waiver program which was supposed to go into effect was under the impression that twenty fifteen and whether or not cap whether there are currently caps in place that form the basis of your challenge there are basis will challenge they n approved the the the waiver and then much it continues to have caps and it simply says caps maybe it seated if the person is a risk of institutionalization isn't that really a critical difference given your claim i mean that just seems like night and day a whole claim is that the caps were not exceeded when there was a risk of an institutionalization but this state continues to and has the cas is and my then how do the caps hurt him because his doctor since two thousand and four change every doctor his says he needs fifty six hours a week of nursing and there are no on there are no standards it doesn't matter about reasonable promise as how it's stock still harmed by the waiver program is the question right stock still is harmed in two ways he's still is to the waiver and he's actually doing or at least he's receiving more care since is what is what i'm trying to grasp but the medicaid act says it services must be provided and the amount  it says it they must be provided reasonable and we have and this is a really important issue also your on our due process issue the the state medicaid manual which mean would that mean how would that manifest itself would that mean that they would withdraw the or approval of the waiver but what action what specific action would that translate into that would simply require an amendment to the waiver documents of that and at the at the hearing do they get to determine how how the state translate but she can't catch needed services because that would violate the medicaid tax requirement that the services be provided to protect the health and welfare six of waiver  wasted two thousand and which resulted in these lawsuits not just this lawsuit but of lawsuits because services were note that the thomas not running on our calendar america which is what i thought this case is but they did put in specific language you complied with beyond that which basically says that if those half would result in a significant risk of institutionalization then there are then there's a way to provide services in excess of those or are those are those issues raised by the complaint in this case the original complaint alleges that the reduction services violated the olmsted holding because there was no way record reflected that even prior to that he would go to sleep for eight hours a day and his mother would go to bed and wake up the next morning so he brought back with his purposes are receiving in excess of what the issue was in this claim that for a lack of proper notice and a dupe and due process yes ron so those were decided by the south carolina courts and then there was a risk of institutionalization issue all these are raised in the point of spending all complained and that was remanded back for further proceedings is a right that is correct or so when that case retaliation issue as a ok as a possible defense so i didn't want to just not going to hear about it i think it's moot i don't think she's so you've raced across appeal but your primary argument am i right in this is that you think that the you're correct right it is not in state and she's we've also lost if i'm keeping track right we've lost that there is no longer an appeal from the finding that the medicaid act had not been bilingual so that right that he reviewed all these nursing those and it's just happenstance that me everywhere else when he did which was when the nurse what he said there's no actual medical evidence that ties in whether a nurse present it when the gentleman would have this condition other than better just when it seemed that cancer just a quick question about your other cross appeal which as i are you still cross appealing the district court finding that there is a violation notice it is a bar turn it ends we did we raise that you're ok is a handout that lists all the services that a waiver so that would cure again i think that if you and that's why i really didn't focus on these prosecutors it was really more protective and just keeping it along what we did back in i the reason why i raised it initially has been corrected through new handouts that are given is that list every single service available under the waiver so i guess one way to phrase it would be  one is just a quintessential fail when essential action or inaction that's committed to agency discretion which is close the complaint feeling to perform the duties intended by congress and the not available relief under the a p a that is not here it they have the services the home and community services in question here those are optional and so even if the state has one and one of those which was effective to like twenty per teen has been renewed yet again twenty eight so if there are no further questions we just asked that the court of the districts to thank you thank you c m s suit their approval of this waiver document supersedes that will last state law regulations they make the law but there are a couple other things i really want to get to for for richer and i mean for rahm and the issue of the risk of institutionalization they're saying that that's not an issue anymore we are going there still arguing that he's not at risk of institutionalization this is an alice in wonderland land that we practice in is there is there a retaliation issue but it's part of your appeal there were so many issues in this case judge jackie that we felt that our strongest issues and the standard that we had to meet you way dip right we waived it so the answer there is you know there's no retaliation but i think we waived it because these others are so important one of those the south carolina human affairs commission if i can i just stop you because i actually have some questions about that ruling but it doesn't matter because it was sort of an alternative holding right the judge also found that putting to one side any limitations problem was in any evidence here oh it's really important because it will be the law in south carolina and people will be limited to one year well we have a new decision so since we were all last together the four circuit has actually issued a new decision office and i think that suggesting is that that he she has probably been addressed ok some of a decision ok it's just it's so wrong and it hurt people so much that it's just very important as  everything they need but i'm trying to understand what the difficulty that i've had here is understanding exactly what will leave you are seeking that we can give you that is attributable to the waiters especially s the way in or the waivers occurred what happened pinning the concerns that you've articulated to the way it works as the cause which we can do something about what's what's the injury that attributable to the waitress that's been a large part of what i've been at work my question to gone to it has nothing to do with the question in the legitimacy of your seeking adequate services for the people you represent it's just trying to understand what the action is that we're called upon to address and what really is available as a result of the those actions say you lost on your due process issue in the state or watched south carolina horrible appeal she that's another issue that we have before that the south carolina or the us that what the south carolina court of appeals said they said that all we are entitled to i a hearing and if you get a hearing so you lost all due process they're correct right but but i believe because we're alleging a constitutional violation we can still come to this court because they  giving someone a hearing doesn't were you not alleging a constitutional violation in the south carolina court of appeals this is really important in the fierce hearings they want to allow constitutional violations they don't have they said so in a south carolina court of appeals you are not raising a a constitutional claim it came up from the eight hundred m but i thought that in that court you had said what happened below was unconstitutional now and they said you got a hearing so you got that right it's a cost your constitutional climb in the south carolina so what's really important to understand is it in september two thousand and fourteen the court of appeals remanded and said you shall do it assess what this court has said is it within within ninety our carolina we have a fair hearing system that every time you get free mandate nothing happens there's no us essman there's no position there's no rules so we would ask that being told that there's cats in the services thank you thank you very much