thank you ron it may please the court my name is andy barr dose on behalf of the florida secretary of health care at ministration this court should reverse because although the state may recover only for that for the medical assistance payments that it has made in the past it may recover those payments from the portion of a settlement that is payment for medical care whether past or future i thought the florida supreme court already decided this issue why isn't this appeal moot at least with respect to the first issue in the case you are the appeal is not moot because the florida supreme court decided this issue a federal law as to different parties in that case it was  florida supreme court's decision on a question of federal law is not binding on this score if this court renders a determination in favor of the state and that will be race to to cut in florida courts as to go r t o  is currently in advance so once this court you say is what is in a band so the petitioner challenge they have statutory allocation that proceeding is now in advance if this court rules in favor of the secretary then that proceeding a same situation where the state kohut had ruled a particular way and then the supreme court ruled on the way is that is that not true do i remember correctly i believe in north carolina it came up through the law so that was a federal question that the florida supreme court decided the court decided that there's a state court state statute is preempted by the federal medicaid act if this court decides that differently then as to  judgment will be entitled to respect in state courts that that would be different if the florida supreme court had ruled as a matter of state law that would be a real problem for you but because they ruled as a matter of federal law that's not binding on that you know position i think that might be a closer question but i don't want to say that that also wouldn't be race to the cottage because i believe that if if you know the guy are to initiated this federal court proceeding if there's a judgment entered against her in a federal court proceeding then i believe that would be binding on her in state court even if it were a matter of state law but here clearly as a matter of federal law if there's a judgment against a guy ardo in this case in the state court would respect that judgment your honor i think the question in this case in this case the first question as to future medical is really requires the court to reconcile two provisions of the medicaid act and one of those provisions is the assignment pr medicaid every medicaid recipient must assign to the state the medicaid recipients rights to payment for medical care without any distinction that's not a gap to be filled that's not an oversight or silence that that that the court needs to fill with content that is a decision by congress that all payments for medical care without distinction are subject to assignment that is the provision the main provision that identifies the source from which states may recover pursuant to and to effectuate the important federal policy that the state and the public should not be liable ultimately for health care service says that individual private parties are liable for that is the provision that all born and vosh primarily relied upon and in there and alice sees and i think it's telling if the court reads the analyses analyses and all born and carefully the court repeatedly comes back to the language of the assignment provision when it when it speaks of the controlling standard in determining what portion of a settlement the state can access dozens of times all born and she used terms such as medical care medical costs medical damages medical expenses without any distinction between past and future all  but i mean if we let's just go to subsection h and look at the plain language of the statute it says to the extent that payment has been made under the state plan for medical assistance for health care items or services furnished i mean in past tense through an individual the state is considered to have acquired the rights of such an individual payment by any other party for sinatra health care i don't see her services when i look at the plain language of the statute that suggests to me that entitles the state to reimbursement for past medical expenses future medical expenses and that's that's the crux of the question before the court how to reconcile that provision your intercept paragraph age with the assignment provision which doesn't make any such distinction and for these reasons your honor i would submit that some paragraph h does not limit the assignment that is broader than that in the u s in the assignment provision graf age was enacted by congress sixteen years after the assignment provision was an act and there is no indication anywhere in the legislative history of the legislative record that it was intended to curtail the rights that the assignment provision conferred in fact what we see if we look at the evolution of the medicaid act is a progressive strengthening or enhancement of the third party liability provisions that entitle states to recover from third parties so paragraph age is somewhat unique and it's in its focus it's slightly different because what it provides is not that the state must provide certain things in its state plan like the other provisions of that section do but that the state must in x certain state laws and so i think the focus of supp paragraph h is to require states to enact state laws as a mechanism to enforce and facilitate the enforcement of the assignments that the state was receiving under the assignment provision so clearly congress used different language in those two provisions but i think that it's clear from the evolution of that statute that the a sign of provision is the one that has always defined the rights of states to access third party payments and to read the  paragraph age which came into the medicaid act sixteen years later to then narrow that when congress did not amend the assignment provision it simply added subsets of paragraph age and so to read that as implicitly narrowing or even even if they could not be reconciled you simply have an inconsistency because both the assignment provision and the ascertainment and reimbursement assignment provisions on the one hand versus h on the other hand and if you're talking about preemption it has to be clear in manifest and an ambiguous inconsistency does not  nt to preemption i think that's right your honor and i think the other other principle that the court can look to in reconciling those provisions is that if implied amendment or implied repeal to to imply italy repeal  italy amend the assignment provision it would have to be clear and manifest that that's what congress intended the assignment provision again had been there for sixteen years saying nothing about a past versus medical distinction and so when congress amended the statute hundred three to a paragraph eight it would have to have manifested some sort of clear intent that what it was really doing was narrowing the assignment provision without amending the assignment provision when one would think that that's what it would do if that were its intent clearly that's not what it did and that was not  intent and i think the courts the supreme court's analysis in all born and vosh again support support the view that the assignment for it provision is a provision of the supreme court consistently look to in determining how do you like me to address issue if you would briefly yes your honor the clear and convincing evidence standard we believe is clearly appropriate we really don't see much argument to the contrary and grief it's apparent that under the clear and convincing evidence standard recipients routinely are able to satisfy their burden and i think i think the reason is if we look at what the clear and convincing evidence standard consists of this is how the florida courts have described it the evidence must be credible clearly there is no federal policy against that the facts must be must be distinctly remembered by the witnesses who testified to them the testimony must be precise and explicit witnesses must exhibit no confusion and ultimately there has to be a firm believer conviction the clear and convincing evidence standard asked as to too high a hurdle to clear but i don't the district court did not consider an expressly did not consider the fact that recipients routinely clear that hurdle we've cited twenty one cases where they  and no we don't we don't need to look at individual cases to see what the facts were and how it were applying the standard to those facts but that's not the same as saying that that this that we can't look at a consistent pattern showing that petitioners  routinely satisfy the standard in fact in our response to guard his motion for summary judgment we made that very argument so we did not concede at that hearing that that that a consistent practice demonstrated by the results of these cases is irrelevant and i believe ultimately  even apart from that the the merits have to carry the day because this is a question of the validity of a state statute and that under the federal preemption finally i would point out that even if we had conceded that it would be appropriate to address it on appeal because it district court made an explicit finding as to what happens in practice so the district court's conclusion hinged on its finding that in practice the presumption is causing a rebuttable and in fact the district court used the words in practice now if the district court can't say that we conceded that practice is irrelevant then base its determination on practice and then render that determination unappealable because of a supposed concession that practice was irrelevant so for those reasons i would disagree with the district and let me ask you one hypothetical question if we were to agree with the district court that the state is only entitled to past medical expenses does the state agree you would only get the thirty five thousand that was allocated in the settlement or do we still have to apply the formula how would that work i think then the proceeding would continue and what the number is would depend on what the what the showing is at doe and what the what the administrative law judge finds so typically that in these two a proceedings the evidence presented is is that sort of ratio evidence that what percentage of the settlement amount of the total damages was met it was medical or past medical and and what percentage of the settlement amount would be past medical so it will be on the settlement agreement you would apply the formula the formula would apply and then they are no i would have an opportunity in the administrative proceeding to rebut the formula and then to show what portion of the settlement was payment for past medical care thank you your honor may please the court i want to start with the assignment provision and point out to the court that even though that's been made the focal point of the state's argument in our born itself of the court a ssume to argue endo that it applies in cases such as this where the state is not actively a participate in the litigation and that's at page if you look at the us reporter two eighty one two eighty two  states even assuming the provision applies in cases where the state does not actively participate in the litigation and then it goes on to reject the arkansas agency's argument and we've pointed out and we did argue this below  it was representing the reply brief that we did not we we argued it at page thirty thirty two and thirty three of our summary judgment memorandum documentary twelve based on just judge pull s dissenting opinion in the tryst yani case and there's and we've said in our brief to state courts that if you look at the plain language of this provision that there are a lying upon they've made the focal point of their brief it's for the purpose of assisting in the collection and therefore this provision would only apply in those cases where the state and it has the right to do this but chooses not to do it too just to piggyback where it sues the tortfeasor itself future medicals well i guess i would and i point this out this is an alternative argument we made our primary argument both in the district court on an appeal is looking at the entire text which is what was it on  correct what it tells the state to do is determine the liability of a third party and it's the liability full care and services available under the eligible for medicare in the future and actually your honor what frequently happens in these cases is because of the award in the personal injury action to the medicaid recipients from the third party toward fees or or the insurer it can it can result in the recipient falling out of eligibility for the medicaid so that's quite a presumption to assume that medicaid should get money for future medical care because what may happen in many cases is the recipient will no longer be eligible for medicaid and then will have to pay his or her own future medical care and the bat's been stripped away from her or him because of the way that brief the court mentioned future medical expenses in conjunction with other awards in a personal injury case that clearly are not medical related at all such as future earnings of pain and suffering and things like that and i think the reality is your honor that in a in a personal injury i guess what i want to start with this case is this is a property rights case this is a preemption case and to all right mayor ambiguity in the federal law gets you nowhere right it's a property rights case your honor because the federal medicaid statute in particular the anti lean and anti recovery statutes were designed to protect the property of medicaid recipients because the ideal being that if medicaid recipients get money when the lottery whatever they don't have to pay back medicaid or the federal government to keep in mind the federal government provides most of the funding here for the past medical expenses that we're paid or for and they can't take from your property and i would point the court you damn time we can't take from the property except to the third third party liability that's rashed and i will express little that that's correct i agree except there is an exception but what we're here and in al born and in vos the court didn't have to deal with future medical expenses but it made it very very clear in those cases which involved only past medical expenses that you are only supposed to take from the portion of this we're dealing with here is allocating the settlement which only does it take from the portion of the settlement that are damages that medicaid already paid for and it doesn't say that in either i don't work that quite a substantial shaya must be allocated to skilled home care she will require for the rest of her life that's right that's thirty seven million dollars that they weren't that they were trying that they were trying to say that clearly that's the part they're not entitled to get now all that said was they weren't entitled to get pain and suffering and loss wages it said they were entitle to get medical care future i would i would concede that neither vos nor al born directly answers the question that we're here on today which is why we're here and is why there's obviously been a division among the courts so i'm not i'm not trying to overplay those but i i said what i can say we said it in the brief i just think if you think about this though your honor that the problem here i think your premise seems to be that this person is going to be on medicaid for the rest of their life well that that's secular nation and so all we can know is what medicaid is paid in the past if oh you've got is speculation you can't win because of preemption it now  but on the other and the assignment provision is from the very beginning and other words we assignment takes place at the bare beginning when the person becomes eligible so you really there is a complete consistency that you could have subrogation rights that related only to what was i asked but on assignment write it was related to the future right i thought i think just i want to be clear we start with our analysis with the anti lean any anti recovery provisions which are the general prohibition on property you can't take medicaid recipients property to pay for the medical expenses somebody has a goes in as a sure if it business film becomes rich medicaid can't go take that money and so and it's got the words or to be paid so if the anti lean provision contemplates future medical care are the three party liability provisions right i can't say anything more on this if i could move on the second point your honor i want to i want to be clear about what we challenge  aka's use of an arbitrary one size fits all formula to calculate the amount of past medical expenses recovered in the torts to which is rebuttable only by clear and convincing evidence is preempted by federal law and the reply brief i was accused of running away from the clearance and that's in standard our case all along from the district court in our and in our brief here is that because this is what vos says what the state cannot do is what north carolina did here adopt an arbitrary one size fits all allocation for all cases and so the only difference is how is it one size fits all if it is  i know you are the district court and you are struggling with the standard that's applied but because i think if you go to vos is is it's they've just barely moved you know they've barely moved and that's why we did go through the whole legislative history this is the same formula the florida used to use when they thought they could recover whatever they wanted out of the towards settlement even from future earnings they haven't changed it it's the same exact formula so if that starts as your benchmark that's your baseline is the judge called it and then they're saying you have to come in and present clear and convincing evidence overcome that what it's flawed at the beginning and i would point the court back to the language because of the clear and convincing  know it's flawed because of the formula because it if you think about presumptions in the law in general your honor they're always based on some type of experience or in parable evidence over time for example at common law before we had d testing and all that it was always presumed that the that the husband of the mother was also the father of the child there's some ground in this this formula based on this record has no imperil the support for they go get that yes th research jury verdicts which are dunning courts every day in florida they could do something they just took the same formula they had before boss and continued to use it in just said well rather than making it  start with this arbitrary formula and what justice kennedy said for along with five other members of the court if states are concerned that case by case judicial allocations will prove unwieldy they may even be able to adopt a i'm not in ministry to criteria for allocating medical and non medical expenses comma provided that these criteria are backed by evidence suggesting that they're likely to yield hawaii thing the court said without holding that those rules are necessarily complying with the federal statute it can be concluded they are more accurate than the procedure north carolina has and acted more accurate that's all i would probably i would concede that florida's current mechanism which before vos was it pretty much identical to boss is more accurate now but i don't concede that it protects and i had to start with this thought the reason i believe this is a property rights case is not a constitutional property rights case your honor it's the federal medicaid statute that makes it clear we're going to protect the property of indigent medicaid recipients and so it is in federal law passed the state to get this money they need to comply with federal law as invented by congress and if this if we were talking about somebodies business there's so many people fall in and  guidance and you must follow those and i've read what i think supports that argument i do want to turn to this this this issue about the practice in the concession  documentary seven in a joint reports of the court that everyone agreed these were cross motions for summary judgment pure question of law and there being no discovery then they cited a very confusing argument in my mind on pages i think it's the leaven of their summary judgment memorandum the judge asked them at the hearing what are you are you me and he conceded we're not arguing anything based on practice then there's been this big deal made that the judge somehow relied on practice in his order do a word search of the order you'll find practice once on page thirty one and this is all he said although florida's reimbursement statute which requires medicaid recipients to overcome obstacle after obstacle just to keep a portion of the judgment that the recipient is already entitled to may be rebuttable in practice it is a cause i hear rebuttable he didn't make any finding based on practice and then i would encourage the court to kill him look because if we had known priest summary judgment that they were going to raise this is that representation representation of prior counsel at the hearing was consistent with what prior counsel of public record requests because we can't do discovery at that point public records request to the state and they gave us a little bit of information but they said you got to pay for this and all that we were past summary judgment so i think it's unfair the district court it's unfair to us to now say we have this new argument in practice and they cite some decision a state some decisions we have no idea there's nothing in this record about whether there's a you know how many cases it at doa and which we tried to point out once this all came up post summary judgment the way this formula is use most of the time is not it doe because most people can't afford to go to tell hasee and litigate in front of do the puts on their website you must pay the formula that's it no negotiation there different than every other lien holder so we'd want to know how many times aka in cases that don't go to della is collecting based on this formula that has no is not grounded in any empirical evidence has been present and we believe that justice kennedy and the other five members of the court made a pretty clear there needs to be some evidence or you need pick a case by case determination and what's going on at where you start with this high this formula that is could just be you know any number you come up with and then being told you head about this and thought as an issue the court obviously needs to know about i i would agree that what i feared aka concede in their response and their reply is that this decision well first of all you're not bound by the  courts that's how i understand their position and so i see where they have an argument that would be have to be made in either doa or the first district court of appeal that whatever this court thank your honor i'll begin at the at the end and work backwards the first is this question of practice what happens in practice practice is everything in a preemption alice in obstacle create action alice's so without practice there no way to determine whether this statute is an impediment to the a to the accomplishment of the purposes that congress intended a statute cannot be an obstacle to congress's purposes on paper has to be an obstacle in real life the way that that statute  operates in effect and so without a finding of practice there could have been no obstacle create action mr gowdy points out that the that these cases were cited in our papers but that there was no that he didn't take discovery and he does he believe that that he was led to believe there wouldn't be fact finding but these are adjudications these are these are not facts that require a fact finding every decision decided by doe is on its website is accessible the entire docket is there every document is there these are essentially legal authorities and we're citing them for the proposition that when these cases are decided the petitioners are able to carry their burden and it looks like counting up the number of cases that the two sides have so cited they are able to carry their burden in seven out of every nine cases we've cited twenty one they've cited six and they haven't shown that those six would have satisfied even a lower standard so and then further that mr gowdy says that not all cases go to doa but the clear and convincing evidence standard only applies the parties get to doa so there's nothing about the clear and convincing evidence standard that could be found out through discovery it aka through for from aka that is not available through doa because it's doa that ultimately applies that standard how do you address is  that the florida allocation only aside from the fact that it can be rebutted in korea is simply what arbitrary arbitrary first of all your honor that is an issue that and we disagree here with with that that she did not plead and did not challenge the it was and it was not one we believe if you read the order on summary judgment that it that the district court decided and the reason is that the are it's very clear that this state has two choices one is to have an evidence based standard that can be applied ex ante where the state knows this is how that in the general run of cases it's going to turn out the other is to allow the risk recipients an opportunity to demonstrate what portion of the settlement agreement was for medical care and so if we choose the second option there doesn't even have to be an allocation at all the state could simply say we are entitled to this settlement agreement but you're welcome to show  us that that only a certain portion of this settlement really my point i guess is this and in my experience which was forty years ago when i practiced law they used to be a rule of thumb that  know your collection and injury personal injury salute was three times medicals that's precisely what this ball nearly as you take the twenty five percent attorneys fees out  agree with that i think it's offhand i think it's an appropriate approximation but i also do believe that that the state could begin with a different number it could begin with the full settlement amount or it could begin as north carolina did with thirty three percent and where justice kennedy wrote that the defect in this statute is that it doesn't provide an opportunity to come to an individualized determination so you can and so i think i think what's clear is that the formulae is actually very favorable to recipients because it brings that initial baseline down substantially so if we were to began in this case for example there were medical assistance payments were eight hundred sixty two thousand dollars and when you apply the formula it comes down by over half a million dollars so the baseline is now not eight hundred sixty two thousand but now it's about three hundred thousand  three hundred twenty thousand and then in addition to that guy out of has the opportunity to show that even that low it reduced number is is too much and the converse is not true aka does not have the opportunity to go to and demonstrate that it is entitled to more than the formula so the formula provides an initial reduction in favor of the recipient from the starting point and then the recipient has an additional opportunity to address to address that allocation and i c m over my time so if there are any questions i'm