five zero four of the rehabilitation r two nine hundred seventy three this case is primarily a reasonable modification case in that the plaintiffs in this case had made multiple requests for reasonable modification to two defendants these reasonable modification of a request are summarized in a table on page nine eleven in the  interpret the sale when certificate of need criteria which can be be described in three general areas of need orderly development in economic you wanted them to specified well exactly what you needed to do what right and if they found as they did that there was no need for a clinic in jobson city even though there was no standard of care treatment within fifty miles in any direction and had never been established in that area and that my clients as well as it was established at least four to five hundred disabled persons were having to drive one hundred miles round trip of a happy to find there was a need for him at the down clinic or could they have found there was a need for another opiate opioid treatment clinic and it would that have been sufficient respectfully your honor i would say that that they were under an obligation under the a opposed to a reasonable modification i would like to emphasize that we were asking for a modification within the c e o when structure and so therefore to simply find that we satisfied that criteria to a reasonable degree and to the orderly development for the first standard of care clinic in the area that we were asking to work within the structure we were never asking simply c e o when and i believe that it would be unfair under the americans with disabilities act to interpret a request for a reasonable modification in any other way than through the legal processes that would allow the c e o in to be issued i mean be mixing apples and oranges and you should tell me if i am but theys their city johnson city was  so that opiate clinics could operate anti opiate you know methadone clinics and the like why isn't that sufficient and we know they granted one so we know they accommodated it least one clinic are allowed in one clinic so this isn't a case where they denied it outright to anyone trying to operate a methadone clinic year on or we and this is more specifically in the they refused to even meet and it would be plaintiff's position that under that title two of the eighty eight that a state in a d is under an obligation at least to discuss and explore a report as far as what the burdens and the administrative costs are and i would that seems to go to specifications rather than to meeting with you where does it require them to meet with even in writing very little and certainly there was no indication of any willingness to discuss a reasonable modification in the companion case did get a letter from johnson cities but turning at one point they did mention a reasonable modification but at the same time they were preparing to travel two hundred fifty miles to nashville for the certificate of need hearing on june twenty sixth to two thousand and thirteen and officially oppose a so at the same time they're saying we want to modify their works profitable up the sea away and so therefore the evidence would suggest that they're really not attempting a reasonable modification what if they just didn't like your clients and wanted to block the c e o and meaning not your clients the jain in john doe's but your clients tr cities to which they didn't know any obligation to model to modify or to accommodate and so and they gave it to someone else so we know they accommodated jane and john doe well your honor there's two points i'd like to make on that is is first simply allowing for example one restaurant serving african americans in a community doesn't mean that you don't have a duty to try to will allow more than one and  that a see a window cannot be used to exclude the disabled or to allow expansion of treatment for the disabled to the extent that people are trying to integrate them in we would undue burden in simply declaring wholesale exemption from the c c a when criteria or this is an undue burden that eighty a requires a specific analysis and they completely failed in that there is not any evidence in the record of any cost whatsoever for them not to allow our clinic to operate in johnson city and so that's what the eighty eight places a burden on the state entity to show specific facts of an undue burden or fundamental alteration they said will open seven clinics we're just not going to let tri cities open that would be a violation right your honor i would suggest in every case they can be an unlimited number of restaurants serving african americans there can be unlimited restaurant clinics or of everyone so i don't know what that point is but that's the civil rights act the courts have held that so i'm not sure i follow please the court i'm serious actually with the tennessee attorney general's office representing the defendants apple lease in this matter the district court got it right on page eighteen of the district court's decision it's kind of a distillation of judge greer's memorandum in order when he says in fact plaintiffs have offered no legal authority or case law support for their very broad theory of the case which seems to go something like this i am disabled or seek to provide a covered health service to the disabled therefore i should be automatically exempt from all statutory and regulatory criteria i need economic feasibility and orderly develop development for the issuance do this in such a way to always exclude opioid treatment clinics or opiate treatment want to know your honor there are twelve other opiate treatment clinics in tennessee and also there was decision not to grant a certificate of need and not to make any reasonable modifications right well respectfully that's more directed in the companion case but there is i should add what about the modification point well let me add before i say that is that subsequent to the deficient application for which the plaintiffs filed for which there was no certificate of need granted  another certificate of need was granted a company it's the mountain states that's not the formal name but it's related to the mountain states and build on judge the pars question your opponent has first of all the department of mental health tedium h s a s actually sat down and met with counsel for t c h and there was also a letter from my colleague mr sheldon who'll be arguing the next case who wrote back letter and e mail but put it in writing in response to his request to the attorney general's office for a reasonable accommodation there was of modification criteria what the plaintiffs were asking for was just a blanket exception and the district court got it ruled correctly and that in fact is the plaintiff's responsibility initially the plaintiff bears the initial burden of proposing an accommodation and showing that the proposed accommodation is objective lee reasonable that's hard for me to say since plaintiffs never suggested what the reasonable accommodation would be but let me just say that at the beginning of the h s t a meeting counsel for the board  mentioned the letter that has been received from plaintiffs in the eighty issue and made a suggestion that perhaps if someone wanted a little bit more time to defer this but expressed also at the end of the hearing and this is in the transcript some i guess i would characterize it as frustration that we didn't know what plaintiffs meant by a reasonable accommodation to the a b a and i think that is really the heart of this case one of the purposes of the requirement to spread out throughout the state how resource so you could say hypothetically i suppose you could have a requirement that kno opiate addiction to be able to walk to the glue perhaps they didn't request any of those types of accommodation no your honor the only request made to the a that i recall in the record was that the his team members changed their votes to just approve it and they also suggested to the mental health department who done the think that diverges over into the zoning issue and that's not in this case but yes if you asked for a modification of whatever allow topper i gree judge moore's question precision is much better had they done that it be easier to figure out what they did ask that right that was the application but i i have to say that zoning was not a part it was not a part of the consideration of the if it is not true that there were not any other opiate provide treatment providers in the johnson city area in fact there was much discussion in before the h s da about the need having already been managed by providers who were able to treat opioid addiction with suboxone on the difference here was he just wanted to use methadone and muster the best place to look for that is in the details of the mental health report and that is in the record eighty nine  record that that report demonstrates that the plaintiff c o an application was deficient and let me give a few examples of the deficiencies that were identified in the middle health report the need was not clearly established t c h that would distinguish it from the other one because you gave the other one right was that was later that was later and also the other one this this one w c h took the national projections and applied them to upper ne tennessee and the mental health report said that there were other effective treatment options for those suffering from opioid addiction they type of program other than its manager there are no existing affiliations or agreements with other health care institutions there were no letters of support from other entities the mental health experts could not determine if staffing requirements would be met and last it was unclear to the mental health value waiters if t c h even understands all the doctors i don't know that there would have been anything keeping them from filing again but the way that this case progressed is that they have of course appealed in the administrative forum and when all was said and done then they they finally dropped their appeal and it was dismissed with prejudice because they basically lost their lease option in johnson city and a c e o in is site specific answers yes they could apply i think they could have yeah eighty nine one were those reasons communicated to try cities oh yes i think that everybody had a copy of that and i want it i don't have it in front of me  yes so in terms of all the detail as to the deficiencies in the application the tri cities was well aware of that and yet repeatedly over and over again tr a new application or a modification of their prior application but they didn't they did not do that and probably the most direct way under the layout of this particular case would have been to actually have a hearing in front of the administrative law judge i do not sure that she could have taken any new evidence usually that's not the case in administrative forum but i don't know t no your honor i looked through many of the letters that t c h wrote to the various entities to mental health to our office the attorney general's office to a am sure i don't have them all but i could not find anything other than basically asking for a modification to grant the c o n which dovetails back to judge greer's assessment which of course we believe is correct that the only thing proposed was to grant him the c e o when now plaintiff says well i just asked them to to modify it to make that possible but when the specific things being proposed well there were no specific things being proposed in terms of modification but the only two things being proposed was to she change the h s t a's vote denying  or change the mental health report to modify it basically so it would not accurately reflect the expert's report but in answer to your the defendants that any deficiencies in our application be identified and now the department of mental health you get the eight hundred page report yes they identified the deficiencies according to the others correct yes and could you have then submitted a modified request yes we would have been pleased to have sat now and with the thinned so why do you have to sit down with them they give you the deficiencies you submit a new request that complies that gets rid of the deficiencies why not do that well that was something that we believe would would have been part of a it interactive dialogue with defendants that i think that for goes back to your initial point there's nothing i can find  eight that requires them to engage in interactive dialogue with someone who isn't even a beneficiary necessarily of the a t f so they meet with your client try cities they don't have to give you a report why can't you do would shown need need we have shown there have been ten thousand opioid overdose deaths in the last decade it was about one hundred a year in the johnson city area it was our president or a new answer judge lar question which is did you ask and did they say now if you could submit a modified request i do not know if i used that specific language but i would urge the panel that not numerous letters to ask them to a den of five deficiencies and they did identify deficiencies right in this report well it was our position that we were per prepared to  specific criteria of the c e o winner or are these letters of support they don't want to say and we're not going to find letters like that so when did you get the eighteen page report  example with meat we show that there was a pain in the area for standard of care treatment for opioid addiction and simply because they said we didn't have letters of support under the a they need to show what's the burden of them waiving that requirement they've not showed any cost at all the way any of these items there's no cost in the record in the court did not engage in a fact specific analysis what's the or relationship with other health care companies because as you and i both know with matthew down it can be used in a positive way when you have a lot of good experienced people administering it and it can become another drug addiction when you have bad people and we've seen that good clinics do good things and bad clinics do bad things so this seems like a perfectly reasonable request that you have these criteria matt you're your honor our manager it established nine clinics with