five prisoners challenging a policy change within the department of corrections made by the d n c and its medical contractor and it was an extraordinary change for several reasons firstly it singled out a class of of prisoners  patients second these patients had had medications on their person or at least available who are eligible for the keep on person program for over ten years before this change was made a was it was based on an allegation at the time that these patients could no longer be trusted to take their medications that needed to be monitored and in a very paternalistic way they needed to be beat into taking their  the record reflects that that is just not the case that is not what was happening on the ground let me let me ask you about that because i understand the evidence after they made the switch in the initial time frame there was something like a thirteen percent increase in patients showing no detectable viral load although that wasn't a long enough period based on your experts estimate the statistical a significant but over the long run by the time they test improved noticeably as a result of cheney how do you deal with it in a couple different ways your honor first put things in context the starting point was a point of eighty something percent undetectible carloads before the policy change the what our expert says is if you want to see what the effect of this policy changes you'd better look to the period immediately before and immediately after the change because that's about the closest you're going to get to controlling for other factors and that change although there's a slight uptick he says when you run it through statistical models it's not statistically significant change in viral loads what the defendants rely on is that three years later in two thousand twelve there is a more significant change to whether you ninety something percent of patients do have undetectible viral loads and what we submit is and then the expert agrees is you can't trace that to taking way keep on person medications for because there's too many other things that happen most notably prisoners come and go so the patient population is is different at that time secondly new medications came online or new formulations of into the time of the change there wasn't there wasn't a problem that needed solving with viral loads in particular because under the keepon person program individual patients who are struggling whether because there's you know objective evidence that they are not who meeting he criteria and then another scenario it's ninety five percent i would think someone would be suing the prison if they weren't achieving the ninety five when they could as opposed to the eighty three and i understand you and you've mentioned two of the things right and as a result well because because we're not dealing with a randomized control trial you know it will be impossible to you know go back in half but i don't think how can the legal standard be one that must present officials scientifically controlled studies that would be reviewed and published they can't say that in the common sense decision that eighty three percent healthy ninety five percent happened yet but it can happen it's hard to say exactly when but it can and the risk of future harm is is what is you know bothering our plaintiffs and many others in that class but the essence of your a in the commonwealth was deliberately indifferent to these medical needs the record here appears to exhibit the exact opposite of indifference the the prison recognized a problem both a problem with some prisoners not taking the medication and having no effective way to police that and also a problem  that was given the prisoners had taken right they studied the problem but came up with a they came up with a solution which whether or not it's the best solution is not a solution that indicates  they were indifferent anything they attempted to come through to what was a plausible solution to a problem and the results of the solution on the whole not for everybody maybe not perfect maybe not poor peer  but the results of the change seem to have been generally favorable not only the favorable changing in violent loads but the favorable change in the economics which was one of the in the which  resources more for the patients so i struggle with the notion of right your honor we do it we take issue obviously with the savings and humanity savings and identifying who's responsible for the waste and where that money can be recaptured and the people again the actual providers in the prisons get into care decision to handle the problem in a particular way is reasonable and and him doesn't work unconstitutional run to deprivation of medical of needed medical treatment were seventeen percent who had an undesirable viral loads if it then went to ninety five percent then there's only five percent so mathematically very few people in the eighty three could moved over to the five a maximum of five everybody else in the seventeen got moved on top of the eighty three minus the so so i'm having trouble seeing that in any event what standing that way as regards the treatment it's that you know quite simply to keep on person program is a program you know it's money doesn't have to exist in a prison system but in this prison system it does and it was afforded to these patients you know  and and this does you know someone intersect with a medical claim in the sense that the medical providers on the ground they you know they check their medical records they check their medication logs they meet with the clients they take a pill count they pull the treatment they need in the program but patients with your clients disability cannot avail themselves of the benefits that are that's right what do we have it wasn't creating a record what percentage of the drugs but what's what's that translate into into real terms if we take each pill being administered each person how many through how many through there's no charge to that effect you know in the record there was testimony from the case from the providers it was important to the providers that was a very it was a known you knew very purposeful decision to make them part of the kooky program when each of the medications came good morning there was nowhere by the district court this case centers on really a change in the way medications were dispensed it doesn't result in any substantive change in the medical care that are provid record shows you can see that not only was this decision made after much effort following a number of professionals over a period of time representing the thoughtful nature that this would be would result in reduced disease doctor that they see their monthly review two or three months they're assigned to a case manager usually a nurse or needs their care they are access to the physician in nurse services that are provided to all inmates their viral loads and blood tests are followed and monitored closely and all that said it issue here despite the boom his record that you have is that they decided for good reason to believe that humans would be improved cost would be reduced if they dispensed it by d o t and that's really what's before the costs here are not insignificant in two thousand and nine bache i v medications were between four and five million dollars a year four hundred thousand dollars a month representing forty seven percent of the farm pharmacy services budget for two percent of the inmate population i would suggest it was if i do she duty to look into areas where they might be able to reduce cost and it has turned out to be beneficial with no adverse effect to these in  it really doesn't show that change from cayle p to d o t caused anything it simply is an artifact of other confound in variables that operation here such as change in medication change in prison population change we have eighty three percent and after we have ninety five can there be something to say well maybe it has to do with newer medications certainly that probably is the case but the fact remains and what they haven't presented his while they pick preventing discrimination based on disability that you by reason of disability you can exclude someone from a service or public program sure show if they have walks in the yard an extra hour in the sunlight as a new program is part of their physical and hence particular disease you can't dissipate in the program so why isn't that discrimination that needs to have some justification they're not they're not precluded from participate they are they can't get they have precluded from getting medications for the disease under the program well they're able to first they're able to get medications that are covered by q piece some of the places for instance blood pressure aspirin better q b it they're not excluded from that means of dispensing yes the target here was was hiv medications and the reason for the change wasn't to discriminate based on hiv status it was the belief that if they were dispensed d o t it would result in a reduction of costs and it was a potential  faith belief that it would increase it here it's and i think that is a legitimate basis and and it's supported by the record that that in fact has turned out to be the case so this is not a case is there's over sixty indifference not only was that i think a thoughtful decision but there is no evidence of the adverse effect and they spent some time in their grief and mentioned just a few minutes ago some of the aspects of why they think there's deliberate indifference and i think there's a huge gap between the broad strokes that they make and then when you hear it out of the record it's just not supported for instance they claim that there inmates are suffering side effects and had had medication regimen changes because of the change first they don't proffer any expert testimony to say these particular patients are necessarily suffering side effects or having medication changes because of the change they don't profit that the closest they come to  a public health doctor who says look at and in some of the treatments for hiv f f f environs and a triple are medications that can be used and that they have a tendency sometimes to cause flu like symptoms or dizziness mention of any side effects in our point of co and doe and if you look at those particular testimony it's just doesn't support any kind of possible suffering from side effects due to the change complained of at one point feeling pins and needles in his head hands in some he had his night time snack discontinued which he even self testified he never bothered to follow up on as far as any change in medication he did undergo a change in medication but had nothing to do with not being able to take it at bedtime he testified it was proof to provide him a newer medication to boost his t cells and lessen the side effects in january he had a medication change that was due to his skin rash and the point of giving that example is when you power down to the record believe there's any specific testimony breaking it up that precisely were advocating for the patients who were complaining to them that they didn't want this change that they'd like things the way they were they did not in any way of pine any of these inmates are suffering adversely because of the change because it's just not there  fair for the fact finder to balance those doctors testimony i think if the and i think certainly we are factual not speculation but based facts rise to a certain level where reasonable can differ as to whether or not there's deliberate difference claims certainly don't forget in this case that the relief that they're seeking is their only relief they're seeking as broad based and jump to relief they want the wholesale elimination of this first of all for the purposes of paying for them to discriminate against this class of patients they now have the burden to prove that it's necessary for those reasons and second of all we with respect to costs you know the only people who have stud return of medications were in the case managers and they found that there are pretrial prisoners and transfers within the group from prison to prison that's responsible for any of the ways to the cost problems those are not patient problems they can be solved and should be solved by a policy outside of this policy change and second same with it here is that the specialists and the case managers on the ground not to mention the point as you know testified of the fact they weren't here and there were no problems that  solving there are disputes in the tiriel fact there and like i said with if you're going to discriminate against the class as a whole instead of simply singling out the people who need to have k p revoked you need better reasons that have been come up with here and the reasons that haven't come out with their been disputed thank you