in traumatic injuries in which third parties potentially have exposure for negligent conduct in other words there is an associated tort line she was admitted in december of two reimbursement from the medicaid program as well as other insurance you know it was the standard form she was treated and released and after her release the med unilaterally decided that they were not going to honor her medicaid and instead they chose to file a lane for their quote customary charge is it not the case that medical providers or are able to choose to accept or not apply for medicaid reimbursement that that is no rule but but the interpretation of it is where is where this runs afoul is that it is i voluntarily program there's no doubt about that but there's also no doubt that the mayor had volunteered to participate in the program and they had i contracted the med s and or acquire funds through medicaid abhay for to pay for this plaintiff's medical services no and that is the problem and that's why we're here because they chose to obligated them to to seek reimbursement from medicaid well primarily federal law and state law because while they don't  really the most comprehensive and controlling case that exists when a united states supreme court about how the medicaid system ours and the tension between the system and the benefits provided authority for the medical provider being obligated to seek reimbursement from medicaid well i mean all born and the statutory backdrop from both the federal and state systems clearly  what statutory language are you referring to the statutory language from the federal government is forty two u s c thirteen ninety six i twenty five and there's an reimbursement for the agreed upon medicaid amount but that's not what they're staking their staking their customary charge which is ten fold them adequate amount but more importantly they're violating the procedure that medical provider that except for medicaid is legally duty bound to first seek recovery under medicaid but as opposed to seeking an alternative they are first required to report to medicaid the existence of a potential third party climb associated with the medical care and thereafter medicaid can give them lave just say the third par which in arkansas never happens and you'll see that i'm all born i just pay it in that light or what's happening here is or start inventing that process they're not informing the medicaid system as is required clearly under the give states specifically that if you have a third party liability issue you are to take that to medicaid and they are to make the decision as to how the third party issue is  that in receiving medicaid benefits the beneficiary of sirens in the form of a lane all rights to third party climes in other words there was no right to  sort of third party claim that existed for them they had to take because the government the federal government required arkansas take it in arkansas took it so they had to go through the sprite in order to get to the third party line and that's  rely on most the most heavily is this miller case from louisiana and if you look at that very specifically says that the state provided in the form of a statute i specific manes for the provider to states to implement a plan to recoat as much third party proceeds as is possible and that starves the the primary goals of medicaid which one primary goal essentially ensure that we're taking care of the needy people of the of the states through the medicaid system but there's some tools that they use to make sure that that goal goes on in perpet program they have to meet their obligation of providing the care percentage of the guidelines of medicaid but number two is that they have to insure the cost of boyden procedures which is a third party liability plan because that allows money to be recruit and it allows the fiscal health of medicaid so that it can go forward to future generations so that so that the people being born today can have  or asked you about i mean i understand one party there's there's a statute that says you can't be all the medicaid recipients for more than the medicaid charges right absolutely and you're saying as a practical matter when there's a limited insurance pool that if you if if the mag yes or fall twenty three thousand dollars than that then mr robin at maine back yet reimbursed for her lost ok let me finish so so i understand the sort of the practical argument that says you're violating the statute because you're taking money away from her that would have maybe reimburse her for her wages or some other out of pocket expenses so i understand that but what if you had a situation where there was no insurance coverage limited issue what would prohibit that what can you point to a specific statutory language i think that's what she just minutes was saying that says in a case where she's she doesn't have a big and you got a million dollars coverage that would prohibit the mad from saying in that case why should we have to take the lower rate when we know there's a third party payer out there doesn't impact doesn't impact the end she gets she gets one hundred percent of her one paying it because it comes to them and it's coming out of their pocket counsel in there an underlying assumption that in that language you're referring to and thirteen ninety six is dealing with a circumstance in which medicaid assistance has been sought and received and that the state has actually the state school and from the federal government have actually been expanded from that goes back to my point is that is that by circumventing the process that you have they have boarded the they have perverted the goals of the system because here's what this here's where this crisis lands is that there's a lot more than twenty three past medical well wants to fail is gone and they take their twenty three thousand dollars laying that didn't go through medicaid then medicaid is going to come back and they're going to be asked to live with this decision because there's not going to be any money left for medicaid and why because they did not follow the procedure that specifically set forth in medicaid you know i mean there you said there wouldn't be any money from medicare why would medicaid be owed any money because they paid the other legitimate because the man had a responsibility under the under regulation three forty three point zero zero to make every effort to identify how hard party liability sources to file claims with the third party bill the source of report second i think that all the answer to the question that you you positive thought about the third the other medicare provide medicaid providers is one that actually we took a walk at and there is a separate statute that says the departments claim for medical assistance payments under this subject are referred to medicaid has priority over any claim by medical care provider so if i understand correctly what that statute says is the meds taken a chance here when they don't be all met let me finish when they don't be all medicaid and if there's another hundred thousand dollars out there that medical expenses paid by medicaid they're going to be out of luck and if they were taking a chance i would agree or to enroll them and let them become eligible for medicaid so they were making that decision with medicaid and the medicaid system here they're not informing the medicaid system that they're even has a choice to be married and that is that that's the fundamental problem that you are you know they when both why is because they're not making a choice they are there only they're only deciding once they figure out what the best choice there is to make and they're making it without medicaid having the benefit of anything it says like you were medicaid to be the provider of of first resort as opposed to last resort no sir that is not what what what i'm saying but what i will of last resort does not mean that medicaid agencies are required to refuse payment for service when a patient is or maybe a third party payment to the extent that higher of last resort is implied in the federal state itself should not be stuck paying bills when another source is available not that hospitals and doctors should rate i when fall at the government's experience pretty much used up your time i give you opportunity to save a little bit for rebuttal if your tennessee it's also a charitable organization the public benefit organization and a nonprofit organization and also i'm here on behalf of a vector or agent their counsel who's in the courtroom allowed me to speak for them and our agent of act as health care solutions as a as a company that seeks reimbursement for medical care on our behalf coordinates insurance benefits and governmental benefits and also identify other payers and payment sources for the met and in many instances like in this case prepares and files are statutory granted hospital liens  the question being to mr scriber was what is the authority for the proposition that robinette submits is the triggering event or  the authority for the proposition that the triggering event for the balance billing and substitute billing prohibitions and medicaid and in arkansas medicaid are not the billing and payment to the billing to medica the payment by medicaid but rather as the admission of a patient into a facility and the treatment of a patient who is also a medicaid eligible patient and that's it as well as entering into some form of  assignment i'm not sure if they sign that matters but some assignment where about the assignment would assign to the med in this instance the medicaid beneficiary benefits i think that isn't the bottom line issue here the statute in an arkansas that to some extent is also there's a federal statute but it says basically it once you enter into a contract with arkansas to provide medicaid services which everybody understands you did and the contract specific says you will bide by all the arkansas medicaid statutes there's a statute that says is the intent of twenty seventy seven one hundred five for have been any payment by any medicaid eligible person or his or her pay he in excess of the rate or fee for service that the medical service provider has agreed to accept and fall as evidenced by the written contract and in a situation where medical providers are sixty thousand dollars and you take twenty three thousand that weighs and her attorney takes seventeen thousand there's nothing left for her out of her personal claim so why isn't that twenty three thousand attempt to collect against the patient so we can't get around that but the question no if the law is its attempt to get get against the patient then why i don't understand how you can take taker personal injury  and say as you're not you're not going in excess of of the of the statutary amount although that's another good question the question becomes when does the statute take effect and that's and that's what i think this case is all about the statute that you're on or sided twenty seven seven one of four c is that the one and it's specifically states two things one that the service provider has this this statute is called a double billing statute i don't know if we put that in our briefs but it is not a statute that intended to handle issues when money has not been billed as a statute that was specifically in acted for the purpose of limiting double billing and limiting what also arkansas calls duplicate billing and if i can point your honour's to that sense since it may be ambiguous and i'm not saying it is i think it only applies when there were is an agreement to accept a payment for meaning a bill has been submitted and will be paid and we've agreed to take the money that's not what happened in this case and that before bills paid to the palace position it as i understand it is that because you are evil medicaid provider or one willing to accept medicaid payment for provision of medical services that that is what limits you to be able to recover no more than what medicaid would have paid appeals and all the courts that have looked at that question and analyze whether or not when exactly to the balance will in prohibitions take effect they've all concluded that the probations take effect when medicaid is build and will medicaid pays the provider which circuits have question in those cases where was our providers allowed to substitute bill and we all know that substitute billing is where you send a bill to medicaid or medicare sometimes you get the money and then you hold onto it if you find a bigger pot of money somewhere you return the money and that's what they call subsidy billing in these courses found that's not ok you there everybody new balance billing was a big none of it substitute billing they had some regulations that permitted it and these court struck down the state regulations but in doing so they noted that evanston hospital for example or or spectrum facility and the six circuit could have made a different decision they said you would be bound by the substitution balance billing prohibition and medicaid and you would be bound by the substitution prohibition of medicaid if you had not taken medicaid money in the first first place and they were very direct about that and the miller case in the fifth circuit  followed these other cases and dick the and did a very excellent excellent analysis of the language of the medicaid stacks and the regulations and you have to read these regulations like the court like the court did as a whole and working them together because if you do read the regulation mr scriber sides forty two thirteen ninety six a twenty five c if you read it in a vacuum you may you may believe that what they intended when you read all the other sections together such as section eight that section and section i of that section these all are intended and does what justice marshall found as well that they have the phrase when claims have been paid or they say would have been paid twice and you can find those in the statute don't think we put them in our brief but judge marshall certainly noted them in his order and it was clear judge marshall had no problems whatsoever a finding that the operative effect of the ballots were in prohibition was simply submitting a bill and receiving money from medicaid but the argument that the counterargument to that is i guess what we have to decide is is that you have the right to make that decision on a case by case basis when the person's admitted or did you agree to comply with the arkansas statute on prohibition against what you called double billing by seeking access payments from the patient at the time you signed a contract with with the state of arkansas the no two question and i think looking at judge marshall's opinion the does say you must comply with a silent on the requirement that comply with whatever the arkansas statute that her answers are carol that's right and is your point to point out this one the problems but i was just looking back at the miller case which is the one that you rely upon most heavily there the court went out of this way to say that the real relevant louisiana statute said you must seek reimbursement you'll be in the hospital must seek reimbursement from the third party before you can even build medica and and you don't have the sim and saw the court said well if you've got to go to the third party you can bail on the medicare rate or you can try to get reimbursement for your full rack rate you don't have that type of statutory language  in our in arkansas do you well know you're right you've got it you have to go down the third party and only then after you come up short can you build medicaid right we do not have to we do not have that type of language we don't have a statute that requires us to go below a third party before rebill medicaid but we also don't have a statute in organs all that requires us to bill medicaid at all and so the question becomes what is the result of billing medicaid and part of the problem is this when you read  rest of the statute your honor like section a where it says it's another prohibition but you're not it says basically you're not allowed to bill medicaid eligible person for any services for which payment is either payable in full or has been paid by the program and this is an interesting argument that i've been trying to deal with the miss robinette proposes is that the term payable means that oppon challenging because it's not a very simple point i mean where a level one trauma center there is surgeries toxic lab reports all kinds of different providers helicopter charges and amulets charges and and take charge numbers and service charge numbers so until that claim is processed for payment and then they agree they're going to pay it i can't see how it would be payable simply because it can maybe be  paid that makes it very difficult for the med and then and then the argument goes that the med is then according to robin at theory the med would then be limited to reimbursement to the medicaid rate from any source before they even know what's covered i don't think practically they can do that they can understand that i don't know if i'm going to get paid twenty five thousand or thirty thousand or forty thousand on this particular event because i have no way to know if it's paid  say to the argument that that what if there's another in this case ninety thousand and medicaid reimbursed charges out there and you get the first twenty three thousand you're actually taking money away for medicaid i'm sorry can you repeat the question well let's say there's you say as i understand there's a lot of other medical school there's helicopter ambulance there may be post hospitalization doctor's rehabilitation all of which may have been paid by medicaid because she's medicaid eligible been yes let's say that's ninety thousand dollars and you take the first twenty three thousand there's not enough left to reimburse medicaid for those expenses so you're having the practical effect of taking it away from medica understand your question now for she and i would mean the miss miss we the med typically build all of that in one package it's all going to come together now that may go to different pockets at the end of the day because there are some different you know centers throughout medicaid i mean paid it i wouldn't say that to be a problem medicaid so it's the right the right well it went to one of her bills are continuing medicaid providing them and a guest to a point where they get up over one hundred thousand dollars or or some number where you take the first twenty three thousand and you take you're taking money from medicaid that scenario ok to do that and i was wouldn't think so that's not what that's not what we tend to do is take money from medicaid but if they elected i mean they'd either make an election the regional one will make election on the front end generally whether whether the you know obviously that this you remember him and original wants a public company they're not they're not a problem for profit companies so it's not a money grab but it's more work and how can we keep things running here smoothly and  who do we bill to do that  but now with the windfall there i don't know who would get that one honors this statute again i know that we you know the question of this statute as to whether it is ambiguous or not as to what it says because of obviously disagreeing terms it's called it's called double billing and i'm talking about a ca twenty to seventy seven that's one of the four c and the legislative history states that we polled states that it was indeed intended to correct the problem of double billing it says it is here about found this is found on page twenty nine of the victims brief that they quote it force but it says it is hereby found in determining that the system of double billing or of receiving duplicate payment for the same medical services to medicaid eligible has been practiced by a limited number of medical providers in this state and it is further determine that such practices are unethical and present a severe financial hardship you also look to the next that huge section one of the twenty to seventy seven one of it says that the provider may not seek or receive double or duplicate payments for the same services and they list penalties for what for what will happen there so read together and read the consistent with the scheme of the medicaid statutes we don't believe that these balance billings prohibitions i mean i don't we don't read this that arkansas has prepared a provider manual procedures rules regulations center and that it's that manuals is considered part of the contract and you agree to abide by it different from the manual i guess that's what i'm getting yes very question the main the provider manual is a mirror image of the regulations they simply print the regulations off stigmata manual and give them to the providers and make them available to the provider so the regulations cited you know sixteen point zero six point three five dash three forty one one called other payment sources and it talks about other payment sources and some of the things that providers and participants need to do to get other payment sources and i believe mr scriber read read this provision that says in no case may the beneficiary be billed for charges above the medicaid allowable on paid claims the one it says on paid claims which is very different than can't be billed medicaid allowable on table claims or some other language but more importantly the first section here three forty one says that the following meaning the following sections is an explanation of the patients and the provider roles in the detection of third party sources and in the reimbursement of third party payments to the medicaid program for services that have been reimbursed by medicaid so an examination of the regulations supporting these statutes bring some clarity to what i believe because it's a medical provider like you represent when do they have to make this election while they have a year to get a bill and then figure out well we're not going to get anything that we have so let's go through medicaid can they have a game the system well i mean do they gamble so to speak as seems to be the presentation of this case i mean take the risk that it's there to take risk but what they do and part of what effect this helps with is identifying you know possible sources of payments men that instead of you know used to a shotgun approach and a lot of hospitals have done this over the years that's why others expect a lot of case law on this but now they take a very deliberate controlled approach to determine you know what the likelihood of recovery would be in certain instances and and whether the medicare benefit from that to a degree once you make the election well i guess they have up to six months or year to build medicaid i believe it's a year  could have a year to figure out if there's a third party source if you think that's not going to work out you can deal medicaid but once your bill medicaid you know you can go back under all the authorities that i've read and all the authorities that doesn't marshal look for every every one of them says that and we haven't found one that would support another reading of the statutes thank you thank  holds in the supreme court of the united states so old that arkansas law retiring and complete rights over any third party climbs and those those were never assigned to the med and  decision absolutely state to one hundred percent certainty that the state of arkansas law is one of the states that has retained those rights exclusively and that they are the only ones that can recruit recover third party climbs so their it's not a decision we just take the best option it says the hospital seeks to turn medicaid upside down by converting the system into an insurance program for hospitals rather than indigent patients that's what's happening here they're whiting