were here today because the department uses m d s audit process to avoid transparency the department retroactively slashes the direct care component and it refuses to allow the facility the opportunity to show that the audit results are rania's thus depriving the facilities of due process i'd like to start by highlighting some of the allegations which on a motion to dismiss are taken to be true if so it is alleged that they were not provided any notice of the allegedly missing or deficient documentation during the onsite audit yet as the department concedes this is a requirement prior to the end of the audit if so it is alleged they were not provided documented lucian's one of the things that puzzled me is that your only argument appears to be based on the going to this court has previously broadly held that the medicaid act provides  history i want to repeat my question i'm not asking about what the th circuit is now i am asking about what you are arguing are you making any argument based on the statute and regulations we're arguing that the medicaid act broadly provides a property interest in reimbursement for services provided the answer my question is yes or no are you making a non constitutional argument yes your honor where are you saying that the medicaid act provides property interest in that that just sets up your constitutional argument are you arguing that the defendants violated the medicare act or a regulation i shouldn't have to be asking those three times the no your honor because again that was information that was not in the original audit and so that information was also excluded from the appeal their sworn testimony in the related case that supports the allegations made in this complaint moreover by the time of the september th letter that apartment was required by federal law to have paid the facilities due process demands notice and a meaningful opportunity to be heard yet plaintiffs were deprived of notice of the deficiencies and the opportunity to be heard regarding those deficiencies department argues that there was ample time to provide the documentation during the audit but this ignores the facilities were not advised what documentation was deficient it's not reasonable to expect the facilities to cure a defect that they were not informed of the audits described in this complaint are merely three examples of the department's use of it's what the deficiencies were until the september th letter they were not provided and the preliminary results during the audit as was as is required they they did not have notice of what is allegedly deficient your be complaining if they were raised however i can't point to facilities rate having been raised since i've been doing this yeah but you gotta get raised rates are lower rates without notice i guess slashed by eighty three percent by fifty seven percent by twenty percent one was from ninety seven dollars down to sixteen dollars one cent was from one hundred and nine dollars down to less than forty seven dollars let me let me come back  that we weren't allowed to bring an argument that audit wasn't properly conducted and i do believe that argument was made and not allowed but if you know if the complaint requires that that we say  relief in that matter if you if you determine that that particular request is outside of the bounds of the leaven meant th amendment in the proper remedy is to strike that request not dismiss the entire complaint  i want to note that the nursing component is not just a recalculated rate after the out it let's take an example of a rate where it was a one hundred dollars posted rate if auditors come in and only find their support for eighty dollar rate the new rate isn't eighty dollars the new rate is sixty two dollars that's a monetary penalty and there's no floor in the related case the one of the on one of the facilities nursing component was reduced to zero for a three month period this nursing component pays for the wages and benefits of the licensed staff the nursing staff the c n a is the o p s the social workers and it also pays for all the medical supplies used for a resident for a twenty four hour period this is an hourly rate this is a twenty four hour period so whether we have a right to reimbursement for services rendered which we should at several district courts have held there is a right to reimbursement for services rendered by the time of the audit the care has been provided the medical providers have been provided it's not that we're saying we have a right to this one hundred thousand dollars one hundred and forty seven dollar rate it's that we have a right to some reimbursement and therefore the process to determine what that reimbursement is should be adequate the station not be allowed to c one dollar more than it can prove it's entitle to magistrate may i start you out please because if the due process requires notice and a meaningful opportunity to be heard assuming as a jew process clause is implicated here how would the providers have a notice and an opportunity to be her if they're not alerted the deficiency before the ability to submit documentation is closed i average unity be heard because during during the as that reason the the auditors conduct the onsite review and during the audit review process at the facility is allowed to provide any and all have notice of the deficiencies the deal of the deficiencies that the department found and then they have thirty days to submit a written response and that's their opportunity to be heard to explain why they think that the documentation that they have been maintaining in their records at the port to submissions that say made to the department that informed their rate setting they have the opportunity to challenge those audit findings and explain why their documentation  because in one day process where they had to find everything at once they're given a list of the patients for which the auditors are going to be checking them the documentation and they then provide the data mentation and there where throughout the process even before an onsite audit help there where that they're responsible for maintaining the documentation supporting the m d s data that they submitted to the system the regulations require them to maintain complete and accurate record my apologies your honor if that that information regarding the the patients under their care what kind of what conditions those patients have what services there that the facility is providing to them such as whether they have  a particular disease that requires treatment whether they have a particular you know mobility issues there or these are their fees or whatever what those services are when they're being provided it's basically information about all of the patients all  from that information the patients are classified into what are called resource utilization group categories and these are just out of forty eight categories that the patients fall into  know they come up with the name of their brain and i don't i don't know the actual calculations that go into that but it's based on that that you know the amount of care like each patient and the amount of care that they need that then aggregated and they certainly could have raised it to preserve it because to the extent that they're arguing that these auditor of these particular facilities did not comply with their regulations they would also in order to data due process claim have to allege that they have no available administrative decision through a state camelot's or sherry proceeding so the answer your question is yes it could have been graded in a state process and to the extent that they're arguing that the regulations themselves provide insufficient process the procedures the additional procedures that they appear to be asking for are an adversarial hearing and their right to submit additional documentation your excuse me during the appeal process but due process does not require either of those components to process and their math you see eldridge requires notice in an opportunity to hurt and they had the risk of erroneous deprivation as i noted at the information that the information that they input into the system regarding their patient are records that they are required to maintain and so there wouldn't be a significant benefit to to giving them additional opportunities after the audit is conducted to provide additional documentation and that might raise from concern for the department to fit additional documentation managing the costs of the state program and requiring them with respect to every audit to offer that a and administrative hearing rather than the written procedures would be a significant burd have to arise from ties of law whether that be a contract state law or federal law and here nothing there there is no provision that gives them a legitimate claim of entitlement to the reimbursement rates if they seek the reimbursement rates to the way that reimbursement rate their calculated expressways that force in that in the illinois regulations which were proved by the federal agency and the regulations provide that as that a rate this that based on that data submission that disability makes based solely on the data submission that the facility may but that that rate is subject to change pursuant to the audit process and in fact the regulation express property rights claim that way the plaintiffs don't articulate their claim that way they say their property right is the right to be paid for services rendered at some ra is it's roff against board of regents way back now forty years ago somebody says i'm a professor says i have a right to tenure at this university and the supreme court says that's right if your right is contingent on particular facts then you have such a right your argument was i think amounts to saying the supreme court should have decided roth the other way it should have said something like well no professor is guaranteed that he will get tenure if he isn't a good scholar and teacher and therefore no one has a property right but that's not the way the supreme court handled rovs or for that matter the cases since show why should one ask the question what is the right rate rather than are they guaranteed a legal r submitted to calculate the grade and so i don't think they have a property interest because that because their right to repayment is contingent upon the debt of the for submitting i don't think they have a property interest in in the race that they're speaking to so you think the supreme court made a mistake in a role that he should have said well if you're not a good enough scholar you're not going to be kept on therefore you don't have a property right i'm not that you know i certainly wouldn't disagree with the supreme court but what they what they seem to be alleging what they seem to be seeking is what they seem to be a your honor i just want to clarify again as as i've said the allegations in the complaint are to be taken as true on a motion to dismiss this is on a motion for summary judgment the record does not show that philip is actually did receive notice of the missing documentation the department wants to tell you they received notice but the allegation is that they didn't and again there is sworn testimony in the related case that the facilities in fact did not receive that notice  your honor i would ask that respectfully that the court vacate the order dismissing this claim and allow this case to finally be heard on the merits if you have any further questions i'd be happy to address