the next case today is health pro med foundation incorporated at all st as department of health and human services it all appeal number one hundred and seventy one thousand seven hundred and thirty one and the lancet medical center incorporated at all and department i would like to reserve two minutes of my time for a bottle yes you may have it thank you your honor as of today the commonwealth of puerto rico has never paid appellant health centers and in a manner consistent with the medicaid statute reverse the district court's decision because it permits further noncompliance with the medicaid statute and is contrary to both its own prior decisions as well as this court's decisions with respect to compliance with the medicaid statute there's a forward calculating the payment amounts due to the health centers for the services provided to medicaid beneficiaries nd there's a timing component when the payments must be made in compliance with the statute as well as when there should be adjustments to the payment rates and that the timing for payment is no less frequently than every four months and the adjustments to that rate have to be any relief for the index factor for the medicaid economic index that any i as well as adjustments for data cost data from one thousand nine hundred and nine in two thousand or two thousand and six to two thousand and seven everyone acknowledges that those costs the cost data and the payment data are one out of out of date and  without the statutory required justin's to the rates and like the factual findings of the court in addition the court allows for a three percent variance in the rate the spite the fact that the statute requires be paid one hundred percent of their cost for providing services to the medicaid beneficiaries so so in addition to the this statute as well as the injunction puerto  rico the coming of the puerto rico's medicaid system also basically makes an agreement with the federal government each time it draws down federal funds from the medicaid program and part of those terms and conditions in that agreement is that they position what is the stopping point for how far back you would go that well that the court has required that the parties reconcile the payments starting with the th quarter of two thousand and fourteen basically because  the difficulty in obtaining data to actually fully reconcile the full payments under that the injunction and so the injunction starts in two thousand and ten and you give is there evidence that you presented really really the full period from that time from what we even actually started with the injunction the rate started out of date and that's when i when i'm saying is that for purposes of reviewing previous aggression doesn't that district court have some flexibility about how far back it's going to go to rearrange things and how much of a showing was made at what time with respect to rearranging things and so just in terms of deference the decision not to set it back to tw seems to have some force to me that that the court does not have deference to to change the medicaid statutory formula the court issued an order in two thousand and ten saying that the commonwealth had to make payments  agreement on what the scene formula should be and so forth and now that we have an agreement we should get yeah occasionally all the way argument and part so how do you determine what one hundred percent the statute says there are there's a formula that every year the commonwealth should look at whether or not there has been an extent changeless the scope of services other health centers there's no dispute that there have been changes so starting in two thousand and fourteen there should be an adjustment to the rates that were initially set using nineteen million ninety two thousand and eight or twenty thousand and seventy six in two for is one hundred percent of the payment do you as to the re based rates two thousand for carrying through the next two year period and you say neither the master nor the district court had any discretion under the statute to just suddenly say no you don't get those payments because everything essential a had been worked out as to what the correct payment figures would be is that correct and in large part so we have not actually begun the process of calculating the amount to do before the special master what he did make findings that was that there have been sufficient changes in scope of services to warrant the adjustment to the rate fourteen maybe you can do that once you give it to him but it's odd to rely on dad of that post dates two thousand and fourteen to get an order for two thousand and fourteen recalculation he doesn't have the data to do it but what we're asking for  would be dependent on data that was never present so that puts the district court in a bit of a bind is that wrong i think that's incorrect so so the the the that is available the reason that we calculated  asking for a ruling that there be readjustments that the court district court can't make those adjustments i haven't had as jurisdictional question what i ask you as well before we get there  i understand your view of the district court order as preclude ing you from presenting the data as to the two thousand and fourteen th quarter for the next two years although the basic formula questions have been dealt with because of a statement and as since that you're simply not going to be paid for those two years you want that order removed so that you can present the data for the final calculation karen has a jurisdictional question and then i have a question about the stay yeah well that's my question is the jurors there's a question is about the stay i don't know just because you have a question on respect everybody seems to be in agreement both in this case and the next one that the orders at issue from the just your core issue after the state that the argument you seem to make to us is that there can be a retroactive lifting of th subject to stay but i'm saying the thing that was bringing us here is the action about the setting of the two thousand and seventeen day isn't that the order you want wiped away  be consistent with the two thousand and ten order which there that you know changed you still have not answered my question i'm sorry it is not just me that wasn't clear about it but the question that i'm interested in is if i assume that the order that you have been saying is erroneous was issued after the stay had been entered because of our migrant health decision one possibility is that stay can be retroactively lifted and then there was no problem w authority based on what type of circumstances there are as to what i missed if you don't or i don't have any case that suggests that the court other than the bankruptcy court that is the automatic stay with the title three court that's responsible for can i do the lifting so if that's right i understand that there was a action before the title three court to have the stay removed for purposes of this appeal my understanding is that that was the only filing made to the just to the title three court lifting there is nothing in it that refers the standard for retroactive adjustment and the text of the lifting of the stay or does not make clear that it was meant to retroactively lift that stay so that's my concern is that we have avoid on to your in any event i understood that the stipulation permitted the court of appeals to decide this particular issue as to whether the limits imposed by the district court in error or that does not resolve the question what happens there after and as to what happens there after i had thought that the parties were either going to ask the district court lines as the state court action which is you can do everything up to the point of the execution of the judgment but that that issue was not itself before us as to the lifting of this stay are ours is a very narrow issue pursuant to a stipulation but it may be that we as judge karen is suggesting we don't even have authority to do that based merely on a stipulation  might just following up on that before you answer because i think it might this make it is adding to the to the point it depends on what the content of the stipulation was the stipulation was as i read it to allow the appeals to come to judgment but that is unfortunately is somewhat ambiguous stipulation because the appeal can come to judgment in part by concluding that the stay strips the order of any effect and the thing that concerns me unless you tell me otherwise i didn't see anything before the title three court arguing for a retroactive nothing of the st applying rate adjustments to the periods of two thousand if if you place and does not say that stipulation says it is simply a stipulation to allow the appeals to come to judgment with no specificity about the issue or anything is not right i mean i don't remember the exact words i believe it was it what's to resolve these appeals yes and who allow them to come to judgment and that just can be they can come to judgment ways and did anybody to to title three court to retroactively adjust the stay retroactively left and we only have that what what we have before the court now is that we have the stipulation that we point that i'm trying to make the stay had to be lifted prospectively to allow the appeal to go forward if the stay is in place we can't even hear the appeal right but the rapture the prospect of lifting of the state the purpose of allowing the people to go forward does not mean that the stay was retroactively adjust to allow the order at issue to be issued those are two separate things and i don't see where there was an argument to the title three retroactively lift the stay to permit the order that you're challenging to have been other than boys because i don't see any argument to the title three court for a retroactive adjustment is that i saw only a request for a throw spect of adjustment that would allow the see indicated that is your position now what what is it that's been preserved well what of what the party sickly to that you want to preserve the parties have to have agreed to the rates that were calculated by the determination there is an agreement as to what the reimbursement rate should those new rates kick in are we are arguing that were is but wait we're arguing that there was an incorrect legal determination in that you're not you're not arguing that it was void right that's correct but if it's void you can't win on appeal resolution of these issues perhaps they thought in artfully worded stipulation permitted our court to at least hear these arguments judge barron has suggested perhaps holding this appeal in a band while you go with the commonwealth back to the title three court and have it made perfect really clear that different prongs that you are relying on one that we can resolve these issues too that the parts of the order it that you like can in fact go into effect three that once we decide the issues then the calculations can go forward if you win and the calculations for can go forward if they win and about the two thousand and nineteen all right i know the title three court has its hands full and i'm sorry in some ways we keep sending work back to them but are there any practical reasons why that course cannot be followed which would resolve any doubt about the propriety of our courts actions and the district courts actions there are no practical reasons why that cannot be done you know it in there what i was going to say earlier is that that we the process of actually calculating the amount to do that all amounts do has been on hold and is still on hold pursuant to the stay this answering this question will tell us how to move forward and how to calculate those them out we believe that it's in this court's authority to make the determination under the stipulation that we have before the title three court but if the court disagrees with that conclusion the parties could go back to the title three court and ask for that and  together to see that some payments in fact are made despite all of your disputes i would like you to discuss with your opponent this possibility of us holding this appeal in abeyance you can force us into a ruling on it or if you and the commonwealth agree you could and in some ways might expedite matters by reaching an agreement to be filed with us it's not that you'd lose the benefit of the arguments you've made it's just that our appeal your appeal to us would be held in abeyance while you get the title three court to make it clear that the coast is clear and that all of these orders that you want answered so do you think ten days is annou time for you and the commonwealth to discuss this and tell our court whether such an agreement can be reached or not so  to outstrip your own authority thank you are there further questions that the panel has for you now i thank you miss importance of the the difference between the the th quarter two thousand and fourteen and the two thousand and seventeen effective date for the new rates because if we're just just by way of background there have been have the effect that the updated rates with the expanded scope of services in and and there is at least as of two thousand and eleven there was a substantial explosion in the scope of services for the health centers because of expanding after our services and additional electronic medical records things like that and services expanded expenses expanded so certainly the before the the change in scope predates two thousand and fourteen if we do not have the updated rates applied as of two thousand and fourteen when we go through and do our reconciliation there is still there is a risk that we will not only get underpaid title three core be the subject of a petition it's graded senate on everyone's part to move very quickly right and then the next issue is going to be the discharge question is probably going to be somewhat based on the sassaman of what the consequences for puerto rico would be of having to pay more because there's other creditors who have an interest in it now that may not be dispositive but that's one reason why i am wary of stepping over the authority of the title three court here precisely because it's about how much money puerto rico has to pay in the title three court is responsible generally for figuring out that question so go for it list this day it's probably going to want to know well if i make the retroactive adjustment what's that mean for how much money you can draw on puerto rico that other creditors can't claim i do not disagree ok well counsel slander stand the a confirmation percentage can send it to the title three court i thought the commonwealth has already indicated how much they think they should be required to pay on existing debt or something recent three point nine percent figure what does that what does that what does that mean that three point nine percent figure if you know what i referred to it i suspect that you were referring to the the payout to the it i have to tell you it that's probably the best answer anybody can give you because because the confirmation plan is very little and there are ongoing discussions among various creditor groups and it's what let the plant have a plan b it's now it's highly unlikely to reach you know six or ten months down the road you know i guess my question was maybe it's somewhat of a practical question i mean we're all these issues we're talking about lopez's question about confirmation plans i thought it was possible that the title three court could lift stays to lead all of these questions be resolved but continue not to allow execution on any judgments until these issues are resolved the amount of the judgment is determined and then we'll review that in the context of a concrete nation that that choice is open to the title three court our concerns actually are predecessor concerns about whether we have the authority to resolve those portion of the questions that  if this is held in abeyance this is your chance to make any other arguments as to the merits and i certainly don't want to deprive you of that chats so do you have other things you to prevent you from hearing but the one question that i had that i asked the thinking about it i think i understood the answer but i just want to follow up to make sure i have it right that the data fourteen date set and then we'll give you the data for that when we get it but was that made clear to the district court in other words on that it became clear in your reply brief that's what you're now saying but was it clear to the district court because that's the relevant thing for me well what happened in the district court is that there's there's a person horses here there and the the the horse what is driving this is a determination of what the effective date should the same we have an agreement as to what should go into the rate setting process what information is relevant to the limited univers so i mean it should not take a substantial amount of time to come to an agreement on what those rates should be has been given to counsel that you pursue before the title three court motions that would clarify that we have the ability to decide this appeal and both of your opposing counsel has said ten day period is a not for it now i'm to consult with their clients and talk with you and report back so is a ten day period for you to report back to us on those issues as i have  meaning no no you we may get a written order out but in the mean time you are under the order of this court to respond within fourteen days to the requested that has been made by the court to you ok and so that i have it clear  opponents to talk about but that's the idea is that we hold the appeal in a band so while you get from the title three court a statement that there is no doubt we have jurisdiction to decide the issues presented in this appeal now so i'm going to make this subject to any comment from my colleagues the the point i think for me that i would like you to emphasize when you report back to us is are you going to be in agreement to seek clarification to request the title three court to retroactively lift the stay so that the orders that are issue in this appeal from the district court are valid orders rather than void orders that what what judge lynch is telling you that the court is ordering you to report back on is whether you have reached agreement about going back to the title three court to seek that retroactive adjustment either by requesting it newly or has suggested removing any question about whether the district court orders were void because of the stay is necessary for the exercise of our jurisdiction the other part which i have been emphasizing is in the light of some ambiguity about this stipulation whether it is clear that this court may proceed to you can choose to present that argument to us but isn't it an argument about retroactive relief better brought before the title three court  order that we given you about reporting back to us about whether you're going to ask is the holes in abeyance so you can get further developments in the title three court setting that aside for the moment your present position is medicaid statute requiring a one hundred percent reimbursement and once you've worked out all the issues about the formula what triggers that formula and all of that but your argument seems to be despite the flat statement in the medicaid statute non the less there is discretion in the district court now that is a separate issue from what happens ultimately in the title three proceeding as to what happens as to discharge is what happened as to is for private health care centers that get reimbursed under the medicaid statute and under your state plan there is a one hundred percent payment obligation how does just fact that it's not the federal government bringing this suit why is that important aren't those arguments to be made to the title three court yes yes well i thought maybe i misunderstood you i thought if the i look at you he said the nature of the remedy was damages equitable relief as can be flexible so the question is what kind of injunctive relief should they get and how much can they take account of the fact that in getting that injunction you're dealing with a party that's challenge with respect to payment to a whole bunch of complicated and in that instance maybe you can't get the injunctive relief even if there was some other type of relief that you might get as long as you want injunctive relief that's going to be constant with the demands of equity we review the relief given in the scope of the injunction for abuse of discretion this is a modification of it that's reviewed for abuse of discretion now maybe there's a flaw in that in the sense that the nature of the injunctive relief requested shouldn't turn on those kind of considerations but i took it that's your argument these medical centers i mean they're serving the poor population of puerto rico which has seems to be more and more dependent upon the services are provided here the ability of these centers to do that to do their job requires proper funding i mean sort of this notion of you just have a common welcome yet you have financial problems for sure balancing how limited resources should be allocated it sounds like probably something that the titles record it's going to have to work out what it has to look like a confirmation determination i'm not sure i just wanted to respond to a couple points and i'm not sure what if the court would like for the arguments to be made to that title three court but but to the extent that we're dealing with the merits here i think what what counsel said  this court cannot amend the medicaid statute and that's essentially what what they're asking to do with that court is not to follow the statutory formula so in addition to to all of the arguments it's that we've made before it what the commonwealth is asking to do is change the appropriation and so the appropriation for medicaid is much more than just giving federal dollars if the appropriation requires that the commonwealth policy certain terms and conditions which includes paying our clients under the statutory formula and to the extent that the commonwealth fails to do that it is not change and the statute let me just ask this question about it which is what is the earliest i know there's an agreement that no one's going to go back before tw flexibility for a district court in a situation in which there's ten years have passed since that initial injunction to say ok it's true that you're making arguments about why in theory we could go back to two thousand and ten but as you've agreed you're not going back to two thousand and ten you're willing to stop the two thousand and fourteen and some of the same logic that led you to not go back all the way to two thousand and ten as an equitable matter provides a basis for them saying we're going to start this at two thousand and seventeen just because of the passage of time and how much water's into the bridge etc and they could you just respond to that part of it because that's the to me that seemed what the district court was getting at and seventeen it wasn't saying i'm going to just disregard the medicaid act it's i'm stuck in a on going long term process and i'm trying to manage this and so twenty seven teams and like a reasonable start date so i just want to clarify that we're talking about that lesion of the appropriation congress set the standards of how medicaid dollars would be spent federal medicaid dollars would be spent and what the commonwealth had to do to comply with that and so if i commonwealth wants to be relieved of the obligation to adjust the rates in accordance with statute it would have to be taken up congress not the ones i would have thought that the fact that you were willing to compromise your claim and give up prior years for reimbursement to the xtend equity is involved here at all that that counts in  favor and against the common while it's request on equitable grounds to employed payment even further as opposed to ok thank you very much