please the court my name is tim gehrig and i'm here representing the plaintiff class in this case this appeal is about the interpretation and terminations of portions of the decree and corrective action order concerning the children's medical program excuse me the children's medicaid program in texas involves the health care of over three and a half million of texas poorest and most vulnerable children which depends on the court and forstmann of a consent decree and corrective action order case texas obligated itself to comply with this medicaid program in exchange for federal funding but they're not providing the pla class members with the medical care that's required by the federal statute the cornerstone of the program is a series of annual and semiannual check ups and follow up care most of the class members are only enroll in the program for a few months so it's very important that they get these checkups on a timely basis or they will not get the benefit of the whole program  case was filed in one thousand nine hundred three the defendants have not contested that most of the duration of this case is a result of their strategy of noncompliance and appeals in order to settle many of the claims the parties agreed to a corrective excuse me agreed to a decree in one thousand nine hundred six that was then supplemented with a corrective action order in two thousand and seven to settle ongoing issues of noncompliance there's no doubt in this case the interpretation of the  these documents is governed by the rules and principles of contract interpretation the relationship between the parties is governed by these documents and the relationship between the two documents  also critical it was hoped by complying with a corrective action order the defendants would also comply with the decree and only once the defendants complied with the corresponding parts of the decree and the corrective action order could those provisions be terminated at a piecemeal basis that the structure of these documents is also important but it would it would not interrupt you but it would help me if you could point  specifically as possible because the district court's decisions forty six pages long where do you perceive error is it legal or factual it's primarily legal there are factual problems with this case the factual problems are evident in the in the briefs and i mention those because i believe they will support the notion that a mistake has been made the difficulty there is much is not your fault or the pros just not much law so overwhelmingly i went back to our courts march decision judge wiener authors for the panel see an animist panel and i guess if i say is there any reason i wouldn't start there to get the legal framework yes well i would tread carefully there you of course you're obligated by that case excuse me you're bound by that case but it is subject to petition for  supreme court ordered a response that was filed monday this week the big issues there it seems at the outset standard of review the court said judge justice's conclusions don't have any sort of ongoing impact first and then also sort of the court went on at some length to say this this this order that we're interpretating isn't one about impact and effectiveness result result and yet our court said substantial compliance exists the district court looked at it in that case the court said effectiveness it was not an issue right was not a measure of the something that need to be to be considered  let me jump to this case for you so so the issue that i thought you know i think i'm right it's difficult for me on both sides that the order doesn't say what a shortage is and it to me it doesn't say how you determine a shortage and yet there's there's surrounding language that says well you would only want to know if there's a shortage as to people who aren't just enroll but are available and judge shell seems to have said i'm going to do my best and they're available if they're within a distance and there's no evidence of any delay by these patients and he says i don't see that the defendants have given me enough to think there's been a lot of progress where's where's the air or is it legal or factual  that the legal error is the back and watch of the basis of this case and other issues as well is that the plaintiffs are not getting the benefit of the bargain that they still part of the shortage so i think that i would see reversible error because they clearly are not say may came up with a plan but their position is judge shells right there is no shortage there may be a shortage for all texans as to some types but where's any evidence that this shortage for the class pla did the the assessments don't have a specific measure for what a shortage is but the language does describe that and adequate supply is only one that can provide access to the whole class but then if he makes a fact finding that this class hasn't met with the ladies why isn't that on this note of this no evidence of the delays there's no evidence regarding to laze no evidence of delays but ok so that would support that there may not be a shortage in this some really missing some no i think you are or maybe you are i'm sorry i haven't made it clear the corrective action order requires the use of the prescribed assessments determine what a shortage is the agreement included a definition of what an available provider is that's not determined by distance standards i agree that with that was we negotiated for and had an agreement that the provider supply issue in this case w be evaluated based on those assessments that include those critical detailed negotiated assessments and instead judge shell when it became clear the assessments that and there's no doubt the assessments showed shortages it would that's a really important statement of yours there's no doubt the assessment shows shortage what's the record cite from the record for that is that when the shortages words were very clear there and they've only gotten worse i know you say that but that that has to be based on the assessments where in the record will do the assessment data show that there is a shortage for the class pla shows that those shortages who are recognised when the corrective action order was entered have gotten worse the class has grown at a much greater pace than the supply of providers  so those shortages that were there in two thousand and seven have only gotten worse another i believe the language in the decree in the corrective action order suggests that an adequate supply of providers is is no real standard set out in the agreement about how to determine a shortage is is to compare the relative access of people within the class to people outside of the class who are in the same locales and in texas in the evidence at least according to the state is that it shows of just large parts of under served large parts of texas are under served and all the radi ways that this class action is trying to develop access for medicare patients and so they are i mean is there evidence in here that would show your class members are worse off in access to the various categories of medical care than our everyday citizens are not taking out every day but those who are outside medicare i mean is texas opposed to correct the medical supply problem and state of texas or just make sure that this class members are treated or have the equivalent access of other citizens in this case in the decrease in the corrective action or i may be trying to answer that makes you can answer that question is or nomination in the state to do more for the class members than is available to other people in the same locale who are not class members that is that how you interpret but the state has agreed to do more the state has agreed that it would assure adequate access adequate access can only mean that they're getting that the checkups and the follow up  we know from the records from the assessment and from other reports less than half of the class members are getting the required checkups it's way more like we know that what's do you have a record site for that i do it's a there's a  of an adequate supply of the supply is what's necessary it's whatever is necessary to provide adequate access they are not providing adequate access to see that sort of create they have maybe not sufficient funds but they've added  they've increased the reimbursement rates they have done a variety of things that shell was impressed by at least to make medicare more attractive to medical providers and get more of them involved in providing care and and i think that's where judge shell measured you know whether there had been substantial compliance or not and what i'm hearing from you is that the right way to interpret this fairness not a fair statement any of us would want to look at for medical care and that that's going to an extraordinary interpretation of this that i think no that's that's not what we're urging we just want the defendants to comply with what they need to that's what you're saying they agree to and  they agreed that they would provide adequate access and that was for the whole class that is what they agreed to the language supports that what we're coming what the issue is here i believe is whether the court has provided us with what we negotiated for in settling the claims in this case did they you know that the district court rejected their notion  do not show shortages the district court said that was disingenuous you know they agreed to this process and they made this disingenuous argument i'm sorry the district court said it's disingenuous to deny that there are search shortages as shown by the assessments yes what's the record cite for that it's in there it's in the court's opinion i can't give you the precise it's in the opinion yes we're disingenuous is use  response to the assessments that's what they agreed to do they agreed to to develop plans to address those shortages that are identified by the assessments of those there's no doubt nobody argues that the shortages aren't shown ok that's ok i guess what what what i think judge shell did was he said i'm going to take i'm going to go look for a different definition of shortages and i'm going to choose what the defendants want which are these time and distance standards or distance standards excuse me that have nothing to do with with real access well that distance is difficult for me to see that it does but the delay emphasis that he gives would seem to be a plausible measure especially if our court said he doesn't have to follow a judge justice's measures and this order doesn't tell us and the other one so he's looking in he says if no one's got a delay meeting a doctor that doesn't look like a short there's no evidence that there are delays that delays are only reasonable the problem is you know the court recognized they did not do anything in response to these assessments the assessments soche show shortages that are not bent generally not discussed we negotiated for the provider supply to i'm sure you'll get to it but we've fleshed out where judge made the comments that we just heard about yes just south of i can stealth i can start there if you would light let me address the comment about disingenuous you can find that at page twenty nine of judge shell's order record page seven four one six nine and he's addressing there the issue of compliance under prong one of the sixty five with all points eight through ten of the corrective action order and what those say is you have to perform these four suspects you have to report one statistic about available providers paragraph ten defines the term available and then if any shortage is found you have to develop a corrective action plan and as you no assessments did not show any shortage but nonetheless the state still did develop corrective action plans based on the potential for a shortage and so it investigated whether certain areas of the states might have had actual shortages and concluded that there were not but it went out it were created additional providers and to the extent there's a shortage it's a dent to go to any other texan in that geography the relative the federal law a requirement here for adequacy of provider care is section thirty of the medicaid act it's subsection a thirty forty two u s c section thirteen ninety six it was addressed by the supreme court last year in the armstrong decision and it requires that the state funding for medicaid the medicaid provider rates be adequate to do a number of things among which is ensure that medicaid recipients have access to providers that is equal to that enjoyed by the population in the geographic area  satisfaction of the courts coming that's what the third prong is a flexible equitable test that as the supreme court explained in its horn decision in two thousand and nine turns fundamentally on whether the consent decree is still remedying a violation of federal law or a condition that flows from such a violation that's the supreme court's mandate in one of the floor as and it said that to the extent a consent decree goes beyond that it is improper so even if it were true which we disagree with  district court's finding of substantial compliance for clear error you can see this in the substantial compliance part of the court's opinion and it footnote forty one of the court's opinion last year it cites it but it isn't a well which explains that substantial compliance is a quote pure question of fact there it's looking closely at that to see if there was burden shifting here because the court did say absent in dishy of unreliability we don't find there is clear error in his conclusion so the so he was applying that here i guess my difficulties clearly the shortage is based on the assessment data if assessment showed shortage so how did judge show what data from the assessments rather than the distance delay formulation what data from the assessments did he used to conclude there was no shortage well he said the assessment day at the figures reported in the assessments don't show a shortage because there is no specific ratio established anywhere in the c e o but let me take a step back here and explain when there's a chump shortage is not defined in the c f o but at the beginning of the c f o it talks about paragraph one ninety seven of the concent which explains there's an obligation to assure an adequate supply of provider so that recipients have reasonable access to providers with and within we i think the phrase is reasonable wait times to get an appointment wait times at the it seems to really key on it doesn't help any of these class members if they're enrolled but not actually seeing people so what they assess and it's i may be wrong in simplifying it but they are drilling down to say ok doctor are you actually in the last six months seeing a medicaid patients if you are then you're available and let's hope you're within thirty one miles but i did it didn't i didn't see the judge shelter you know if you're within thirty miles but you're in houston that's not going to help me if you're different world might have shown a shortage for example if you came back and it said there's three million medicaid patients and there are two primary care providers statewide or two per city that would be very strong evidence of a shortage and there is some language below in which we were trying to expose state was trying to explain why it had this snafu i would see a violation of the precise terms of where the u s s six and twelve months and we are trying to explain that and we get signs using language like the assessments are incapable of showing a shortage that's what judge shall criticize as disingenuous i think fairly read though the point we were making and it got caught up in the language was that the figures that we saw here didn't show a shortage perhaps there would have been some results that that could in another self so shortage but with there's no ratio established between planets preferred definition of available and medicaid class size that would be defined as showing a shortage and because there is no definition in the pretty difficult to think that the district court clearly erred in saying that there was no shortage that required something more than what we did when it looked at all of the evidence and found that there was no evidence of even a single medicaid recipient that was unable to get access to plaintiffs today talked about this form c m f c m s four sixteen i'll tell you where that's found it's not in the record but they cited in their brief a page thirty six footnote one hundred eighteen and it's a report that shows not access to care but utilization of care and it looks at a certain measure of how many medicaid recipients do utilize checkups but their primary care provider and said that sixty point one percent of them do that doesn't mean that fifty percent inadequate access to care there are numerous reasons why medicaid recipients might not utilize care even though they have access to it if you look at the declaration of dr william gloom he talks about no shows being a big problem for doctors who are trying to treat the assessment data that eventually was corrected in the six month frame does not show as to any provider type that the doctors who are actually seeing new patients don't exist in sufficient supply that's your position months because just to give you an example let's imagine that there is a population where there are three hundred medicaid recipients two might in the year have used some specialist care and there's thirty doctors enroll providers who have looked for that care and if over the course of a couple of years that population size increases to six hundred and the provider size increases from thirty to forty five you having  hundred percent increase in the benefit population and a fifty percent increase in the providers but it may well be the case that those providers are perfectly able to serve the needs of the entire additional percentage because it because even though there's only fifteen more who have billed for at least one new class member they may be taking on two new class members each and then you've got adequate queer care that's why you cannot place in distressing adequacy both under paragraph eight to ten but also paragraph five in the consent decree you just given the numbers we had you can't place sufficient weight on this one measure of availability absent some extreme results which in fact at the time before two thousand and seven these studies had not been done and there was a suggestion that in some parts of the states there were just no providers in an area where there were for medicaid patients where there were providers from the general population this report would would have provided some data that would shortage and if you have any doubt about that you should do what the district court did which is look to functional measures of shortages and adequacy and again we put on evidence here that there is not a single medicaid patient who needed access to care and w and plaintiffs might say well how are we supposed to prove a negative pull a good place to start would have been our records they subpoenaed and got our records of complaints that were made to our complaint hotline and they put it on and we voted that in this chart that we talked about it's a page that's exhibit sixty four page eighty five sixteen and showed that in every single case the medicaid recipient got access to care but even the number of complaints that we received was point zero zero two percent of the medicaid population in the state we put on evidence from the one nine hundred m c e o s explaining that they meet several state requirements for insurance access to care and all of this could reasonably inform the interpretation of the shortage in paragraphs so that's our satisfaction argument onto that onto the long one but let's again i want to come back to the point that the district court made upon three ruling even if and the plaintiffs here talk about well that doesn't give us the benefit of our bargain to dissolve longer equitable direct but when the district court ruled on or making arguments on their both the first long and i know you're making those arguments but i but i don't hear you really interpret different result how does that equate to in equitable i mean to you an equitable has to have some and some to touch measure out there  perspective and horsemen is no longer equitable and one of the floor as the supreme court explained that what that means is that federal court decrees i'm quoting here exceed appropriate limits if they are aimed at eliminating a condition that does not violate federal law flow from such a violation and we showed here that the federal law required that regarding provider supply is stated in section thirty eight and we showed that state standards that ensure equity in access between the endorsed by the supreme court one of the floors and in fact in horn and in it's the supreme court's frew case they said that the court should strive to return control of state programs to state officers as soon as possible and they noted some of the structural problems with consent decree pivotal issue but when you look at page twenty of the district court's order he says there is no evidence that any medicaid recipient has been unable to page twenty when he the district court explains there no there is no evidence that any medicaid recipient is actually unable to get to see a doctor that they need and then he goes on to explain in part to be what he's applying called three that the federal agency with oversight over this which is the center for medicaid medicare services plaintiff said today there's no clarity about what those wait times are but in a briefing below we need through and explained under our contracts with teams yes there are just specified wait time standards for different types of service if  for example specialist for primary specialist care it's fourteen days twenty four hours for certain urgent care these are all under the m p o contracts if my last points it was i'm running out of time is i don't close to court to look at the supreme court's decision last year i'm strong where it said there is no privately enforceable right of action to enforce section thirty of the medicaid act which is the provider supply provision because it's so i think it could be called it judicially under the minister ball and relied on c m s is comparative expertise in the subject matter and that expertise which the supreme court also noted in its two thousand and twelve douglas decision and it's precisely the sort of federal issue it's nice that matters under kongs three when courts are looking at whether there is durable remedy or what's what the district court here called a safeguard to ensure that there is no future violation of federal law so while prompt three is sufficient to refund the judgment below soprani one is also sufficient in this to ok first of all i want to mention that these arguments regarding whether they're statutory compliance and whether that should control this case those arguments were made and rejected years ago by this court among others and the supreme court the fact is the agreements that they made embodied in the decree in the corrective action order arose out of their agreement about how they were going to comply with that statute was a legitimate to create the supreme court recognized that it was within the boundaries for them to now come back and try to argue statutory compliance should be the measure  they're just flat wrong would you have a response to the cases he's been talking about armstrong him and his horn was one of them or that where the supreme court seems to give some life to perhaps an issue that didn't seem all that alive few years ago i would point out the c m s approval of the way they run the program is not this robust rigorous oversight they're talking about fact is c m s was approving of the way they ran things in one nine hundred ninety three when this was filed in one nine hundred ninety seven mandarin into the decree in two thousand and seven when they entered into the corrective action or c m s is i don't think applicable to this case the second thing is  your problem three answer isn't so much a we get the benefit of the bargain no matter what even if it looks an equitable your answer is the district court's kron three assessment tied only to its prong one substantial compliance argument and therefore that's what's all together form you know horn said that specific compliance is not necessary as long as they have satisfied the purposes of the decree ok they have not demonstrated that they've satisfied the purposes of the decree here it's not like they've come up with some other solution nor in these distant standards they're talking about the distance standards there of limited utility their purpose is only to identify those relatively few and i'm by relatively few in the context of this case is we're talking about tens of thousands of children who are so isolated that they don't have access to care wouldn't spend your precious minutes on distance but what about you had time to get a record cite for a finding of shortage do you have a record cite as to a shortage shown by these assessments it's it's i would refer you to our brief it's there's not a finding of a shortage but the shortage is we've demonstrated the shortages that are shown by the assessments we agree records for the assessment lucian there is a shortage my provider type it may be in the breeze it's in our briefs it's the only discussion on what the results of the assessments were and they are quite dramatic another thing we negotiated for was that the assessments would be based on information about actual transactions with providers not by information produced by the h m o's in their contractors the distance standards they're talking about are all based on their contractor information and it's you know in violation of basically what we agreed with or what we agreed to also the time and just there the distance standards they're using the concept of the roman we know that seventy percent of the providers who are enroll are not available under the agreed definition of available their distance standards are really quite meaningless here they do not begin to address whether or not the provider supply is able to meet the requirement of providing all of the check ups to class members they also rely on  contractual provisions requiring their contractors to meet the decree requirements now nobody's ever shown that any of those contract contractual obligations were ever enforced and in fact that violates