may please the court i am an assistant attorney general lind watching and so on behalf of the director of the illinois department of health care and family services the district court's preliminary injunction order rested on an erroneous view of the medicaid act limit the director to providing only one form of corrective treatment the district court accepted that these provisions of the act require the directors to ensure that nurses will provide medical care to point to in their home the  d t and reasonable promise provisions do not impose that requirement on the director instead the statute requires that plaintiffs receive corrective treatment and necessary health care not necessarily in home shift nursing services but the director did determine that in home shift nursing services were needed for these children and they were eligible for them the director determined that they were eligible for them and that they were needed and that they were appropriate but not that they were the only form of corrective treatment that could be provided and i have one big question for you that really comes up from reading all of these briefs that's all we read through the transcripts from the district court it seems to me that the district court judge was repeatedly asking mr houston who at that point was representing the state whether there was any need for evidentiary hearing whether there were facts that needed to be developed and he repeatedly said no this it's just a pure legal issue what is the statute mean but then as i read through what you now have it seems that lots of facts are being smuggled in through the back door and it seems to me if you've represented to the district judge that there is no need for evidence about for example how many nurses would be available through other services or what's the average rate of pay for nervous nurses in in these various markets in the state i mean i don't have any trouble coming up with a lot of facts it might be pertinent but but it seems to me that you can't really tell the district judge that there are no district courts questions he said once that it is more of a legal issue in the sense that you know our view of plaintiff's complaint was that they were essentially trying to force the director to raise her reimbursement rates and so in response to a specific question he did say that it was more of a legal issue but these facts are not being smuggled in their evidence from plaintiffs complained and not all of them and if this is very relevant to  the issues that are here and maybe mr houston used those words once but he that was not the only time the district court asked the question do i need to set time for an evidentiary hearing and the state said no now as far as you know this legal issue is concerned it seems to me that maybe one of the primary points your opponents are making is that the statute itself was amended by the affordable care act to get beyond simple financial reimbursement and to require the actual treatment be delivered this definition of medical assistance got changed in thirty nine sixty subpart a so maybe you could talk about that a little bit short you're under the definition of medical assistance did get changed but the first way that medical assistance can be provided is through payment of the following  service and so that remains the same payment of care and services is still one option for which medical assistance can be provided but the statute your opponents say and then it goes on to say or the karens airbuses themselves or both and for different parts of the statute different ways of providing medical assistance seem to be appropriate so payment isn't even sensible for some of them so i'm not sure that if your position is that the secretary or the director sorry the director can just pick the one she wants i'm not sure that's consistent with the statutory language our position is not that the director can pick what position she wants it's that the statute uses the word or which indicates that there's an alternative but in this case as we've noted you know the director has not just paid for a prison vision of the goods and services but she's actually arrange for the correct with treatment so whether or it's just payment includes a provision of the good and services the directors complied with the statute and has provided medical assistance what is the record troll but why these services are not currently being provided the record shows that in their complaint plaintiffs say the nursing agency for the director has worked with have had difficulty finding nurses that's a point that was raised at one of the hearings in front of the district court so i think there there is support for that position that's one of those facts that i was concerned about it seems to me that's a fact that could be researched you know you could find out how many nurses with the qualifications to work with these the scary challenging populations are out there there's the one relationship i suppose the director has with the university of illinois chicago a big state maybe there are places in st louis that would be providing services further south or are other things but there we just have this factual void here we do your honor but again the plaintiffs are the one who sought the preliminary injunction and so the burden of persuasion was on them and it was their burden to present evidence right and so they did in terms of their own  ts about their own experience and they said we're not getting the hours of coverage that we need i have to sam very good serious about one aspect of the secretary's response it seems that answer that one car the secretary but the director's response you seem to be saying that as is the case with o b i think that institutionalized care is the option the director is prepared to offer if there is no in home service sack arrived well what we're saying is that the directors approved of the for in home nursing care the director is working with the nursing agencies in his area to see that he gets that in home nursing care but to the extent that there are not nurses available to care for him that he can be cared for at a hospital and at at least three is just short of twenty thousand dollars if he were at home is it the director's position that there are enough beds in nice nursing home like facilities and hospitals to take care of every child well with respect to o b you know the fact that it may be more cost effective for him to be cared for in home doesn't affect whether there are nurses who can actually provide the care and so you know again i think it's everyone's preference for nurses to be well you know be able to provide that care but if they're not then you know there are other options and you know but all the district judge ordered was taking steps to arrange directly or through of compliance with this suggestion right right just of take steps so what is the objection to being told to take these steps it's very unclear what those steps would look like and the district court didn't acknowledge they are the department is looking into no no no no no looking into is not a step what steps have you taken there to comply with the injunction there are recruiting more nurses to be able to provide this care  they played of o b was released from the hospital and is now receiving care in home for you know some of the hours that he has been approved for so a nurse was found for o b yes and you're doing more recruiting what yes what does that mean concretely so the division of specialized care for children is the one that works with the nursing agencies to attempt to find more nurses who are available to care for the pla in terms of what specific steps they're taking and i'm not sure but that's something that the division is sort of if you think that your organization is complying with ask for the injunction in order to be dissolved i mean that's one possibility but what we're seeking from this court is to vacate and reverse the injunction order itself because plaintiffs never show that there actually was a violation of the medicaid act before receiving the injunction order and as this court and the supreme court has noted you know a preliminary injunction is really extraordinary relief in the plaintiffs have to make a clear showing of entitlement to it before receiving one except i don't think you're stating the full  test a preliminary injunction of course is equitable relief and thus you would have no remedy alog but on the other hand whether to issue a preliminary injunction lies very much in the discretion of the district court likelihood of success on the merits is certainly an important factor but it's not the only thing and so it's really a misstatement to say the plaintiffs have to prove once and for all  that their interpretation of the medicaid act is the correct one they have suggested how they would read this definition of of medical assistance that we were talking about a minute ago and what it means for the director in this particular part of the statue which is not the whole statute just this part this e p s d t unfortunately not a pronounceable acronym is is the unusual one where the state actually has the obligation to provide treatment early in periodic screening diagnostic and treatment that is the teeth part so i'm not sure that the plaintiffs have done such a bad job on that part but it's it's still to be determined what plaintiffs haven't actually they've made a lot of allegations but they haven't presented any evidence that there is something that the director should be doing that she's not doing all plaintiffs have done a number of things for addressing this disparity between what's been approved and what's actually been delivered including using more nursing agencies i think some of them have been named using  certified nurse assistants when the parents are at home increasing the the p r n coverage and so on and so far there's a list of quite specific things that the director has managed to come up with in the in the light of this litigation so doesn't that suggest that there are that there's a menu out there well we've raised those as options but your honor was asking earlier about what's the harm in letting the injunction order as stands remain and the hermanus that we're not it's not clear whether any of these options that we've proposed will be satisfactory to the district court i mean so far they've moved for enforcement of the policeman or injunction order and it in part but that so far we're not it's not clear that moving forward the steps that the director has identified will be seen as good enough and that might just be a matter of the wording of the injunction i mean the district court is between a rock and a hard place because i assure you that you would be here complaining that the state's been micro managed if the district court spelled out what you were supposed to do at nine o'clock in the morning what you were supposed to do a ten thirty that same day and on and on so you would be saying wait a minute the state needs some discretion to decide how to implement this program now you're on the other side are saying well you've given us too much discretion and that the judge was requiring these reports and other kinds of interactive process i think with that in mind well the state would complain if it were in fact micromanaging but there has to be some more you know federal rule of civil procedure sixty five d says it has to describe in reasonable detail what steps are required or restraint and simply saying take unspecified affirmative steps to provide for the in home shift nursing services that you have already approved so to narrowing phrases right there as required by the medicaid act which then i could delete that and that means anything but that in home shift nursing services already approved by the director right but again you know arrange for in home shift nursing services that phrase sort of obscures the fact that nurses have to be available and willing to work the hours that the department has approved and there are many reasons that you're not unclear about what that means it means you have to find nurses now maybe if you come back and tell the court it's impossible there just aren't enough nurses in the state of illinois plus surrounding areas the court would be required to modify the injunction but i think that to read that there are not enough nurses has always been underlying in these proceedings you know the district court certainly did not make a finding of fact that there were not enough nurses right if it were established that there weren't enough nurses we'd be in a terrible fix where the injunction is effectively saying take a nurse away from somebody else will now need to nursing services and give it to these plaintiffs might be very hard to see how that would be in the public interest because it would now leave somebody else who needed a nurse without necessary care might even make things worse but i can't read the district court's opinion as containing a finding that what i'm requiring is taking nurses away from somebody else who needs them and giving them to these plaintiffs who need them you don't seem like that's what the district court thought he was doing no and we're not suggesting that the district court is saying take nurses from someone else and if there is a shortage of nurses the only way to provide more nursing services for the point of class is to provide less nursing services for somebody else right we're playing a zero sum game if there are not enough people to provide the nursing services and one would then ask why should the performing these people over other people but if you're saying we're not playing as zero sum game if it is possible to find the nurses without taking them away from somebody else then i don't know what you mean by shortage of nurses well i the only option being take away from someone else you know an option that the director had john before this litigation based on the report that plaintiffs introduced was to try and recruit additional nurses to provide care for plaintiffs so it's not the case that it necessarily has to be taking nurses away from someone else but ultimately it is the idea that there are number of nurses just wiggling there from should not working no i wouldn't i wouldn't suggest that's the idea at all or that they're not working they're not fully employed they're working twenty hours a week rather than forty there are a number i just don't see how you can say on the one hand there's a shortage of nurses and on the other hand that more and more services can go to the point of class without there school you know and if those nurses become somebody says there's a shortage of bread that means that some people aren't getting the prep they need for for nutrition ok if you're using shortage of nurses in some bureaucratic shorthanded way i'm afraid i don't understand what you're meaning all i'm trying to say is that the director has attempted to arrange for a point of c receive in home shift nursing services to the extent that they are not receiving ship nursing service is there other options available to plaintiffs to receive corrective treatment unless this court has further question can save your last minute  medicaid claims that the director is failing to arrange for in home skilled nursing services that the treating physicians and the director don't think let me begin with that concrete question  different ways which is the status told us what to do and to comply with the injunction and then the question for you is do you believe that that  no your honor because the those state that but i just heard counsel for the state say is that there are options out there that the state could do but well i am drunk and says immediate an affirmative steps in the state says it's taken one of media step of getting a nurse for will be going to trying to recruit others to be concrete what other immediate and affirmative steps do you believe the state can take and hasn't taken i think that the steps that are listed in the department's may sixth about are those six options that judge would refer to are options for the state possibilities that they were saying you think they should transform it to the possible to the real the in addition to interpretive guidance issued by the center for medicare medicaid services those at least five options that states can take including your honor referred to st louis interim into border agreements with providers who are in other states who can serve  children in border areas in the stanton v bond opinion from the from the circuit court said that an option is to engage in aggressive monitoring to see how the recruiting is going into fine tune the system as it goes along so what's happening to these children i mean what i want to come back to the financial point because it would seem to be financial suicide for the state to put all of the children who are qualified for this care in an institutional setting as opposed to having them at home is what's really happening is that they're at home but they just aren't getting care and so on skilled care from parents and family members is what's filling in the blank that's correct and some children do deteriorate to the point where they need inpatient acute inpatient care and then they go into the hospital to get the care at there director says well here are some possibilities to add to addresses just spared do you think the injunction should have listed all all of those steps though no your honor the injunction was properly fashioned to give director of the department ability to at the outset make the decision about what steps to take and that was appropriate to really honor the federalism issues that are in play here this is a state agency and it also is an agency with expertise so it made complete sense for at this juncture in the case of the  injunction phase for the court to say look i have found that you are not i have found that the plane just have a stablished the those standards for getting a preliminary injunction the idea of delegating to an agent and then sitting back and waiting to pay claims whatever they may be for is not i'm finding that congress are likely to succeed on their playing that that is not what it means to arrange for services with reasonable promise in the medicaid statute at that point the court could have done nothing but that wouldn't have been a good result because of the ongoing irreparable harm or the court could have issued a highly directory specified steps order that i think it's your honor pointed out probably would also have been complained about so what the court did was do something in between and that may be imminent since it the we didn't we were not able to confer the the director said that she had no comment as to the order that we had submitted judge to chorus entered an order quite similar to the one that we had proposed but not exactly like the one we had proposed not really very well written it says not obvious what affirmative is good in there but only two nurses in illinois and that there are three medicaid patients total and each one requires a nurses full time services what would happen i assume is that two of them would get full time nursing services and one of them would not would it be proper for a district court to order the state to transfer one of those nurses from somebody else to the point of no your honor because that would injure the person who is now losing services correct so if there is a shortage of nurses how can the plate of class be helped without injuring other people who need nursing care there's no evidence that there's a plaintiff's evidence was and the director did not dispute that the problem was getting nurses who will participate in medicaid what problem is not that licensed nurses that that's sounds like a different problem it sounds like the problem is medicaid might not be or her rates that are hard enough that runs smack into armstrong which says that the courts can't order the state to pay more money armstrong says that the courts can't order the state to pay more money under thirty a we are not we did not bring a case asking th state to pay more money under thirty nine to forty two u s c section thirteen ninety six a thirty eight which is the payment provision at issue in armstrong but i thought it may be clearer so you are you now saying that you think that in order to comply with the injunction the district the state must raise the reimbursement rates no your honor we're saying that the state needs to at this juncture of the case take reasonable steps affirmative steps like i did not and i cannot just say what what i thought you were saying in order to avoid the armstrong problem which is looming out there on the sides is that the state has thus far not exhausted what i'll call the non armstrong remedies that hasn't looked around enough it's been content to rely on this one relationship with you i see that for all we know there are many more things you know rocks to be turned over or whatever there are many more steps that they could take before we would even know if we had an armstrong problems we at the end of the road have an armstrong problem then we have an armstrong problem we'll just deal with that but these items in the list that the director filed don't seem to be just a raised the rate sort of thing it's a use more agencies find less skilled people who can work when the parents aren't there  expansive agencies to other geographic location caesar all an exhausted as i understand your position and the district courts position i'm exhausted but not great related measures absolutely your honor that the why this was an issue of law at the at the district court level is because the it is undisputed that the process that is in place here is that and it is that the director finds children have medical medical necessity for in home skilled nursing care and that that care is appropriate then she delegate to the chicago university of chicago so there was no coordination and that's not working there's a gap there she is waiting here to pay claims when when and if they are submitted but in program for dealing with the problem but she's not implementing she that's correct she has outlined a number of steps that she could take but she says she gives me reasons for why she can't or won't implement them well well that is what we argued over in the motion to enforce and we supplemented the record too to have that in in in the record and at the in the district court found that in their papers the  director said we are the first at the outset looking to see what children with the highest level of need what they're what the discrepancy is what the delta is as she called it and so what the district court did is to say well it's been four and a half months i'm soon in your well along the way in doing that deed so certainly be given to this court as well yes your honor so  is there a reason that explain to me more why you think that the factual record as it presently stands what do you see is the issue of law before is what facts are there and do we have enough of them so i think that the issue of law is whether the given the process that the director has described whether that meets the requirements for arranging for services under the e p a s duty with promptness with reasonable promise and we've talked about what that that system is it's going to find children need services to delegate care coordination and then when and if claims are paid to pay those claims and our and so the legal question is at are we likely to succeed on our argument that that is not enough and there are and we have argued we argued to the district court that under the structure of the statute that is not enough because forty two u s c section thirteen ninety six a forty three envisions a screening and treatment program that is child specific and that is designed to get to each child the corrective treatment that they need that seventh circuit precedent in cases likes danton versus bond support this broad notion of what e p a s d t requires stanton's facts are very similar to what was happening here the state of indiana was giving lists of providers to families who would take those lists and then go look for providers and they couldn't find them here the agent of the department the director is giving list of agencies and families are trying to use those lists and what the second circuit said is that the mandatory duty to  to treat the health conditions that have been detected is clear from the e p a s d t statute because otherwise conditions deteriorate and health problems become more  and so it found the arrange for at that time the arrange for requirement was in a regulation i hadn't been moved up into the statute yet it was worded the same way it found the arrange for requirement had been violated that opinion from the seventh circuit is very much in line with those from the fifth the sixth and the ninth which all discuss this broad treatment requirement that u p s d t in encompasses and then in addition we think that we are likely to succeed on the arrange for argument because of the statements made by the centers for medicare and medicaid services in the interpret guidance that both parties have cited that guide it says that the role of the state is to assure that the full range of p s t t services are available and that children have access to these services to meet the with the federal law well and also the state is talking about putting people in almost home kids or institutions they're actually shooting themselves in the foot if that's not a suitable response and i think that district court  noted there can't be twelve hundred beds in almost home kids or well its equivalents there are twenty four twenty four beds not one thousand two hundred correct that which is that roughly the size of your class right are the that's the sort of framing of the arrange for argument that we made to the court and upon which the court found that we're likely to succeed  as for the reasonable promptness argument it follows on the heels i guess you would say of the arrange for argument c m s has pointed out that the affirmative obligation that the c m s the centers for medicare medicaid services the federal agency that implements medicaid has pointed out that the arrange for requirement that is in the law is the thing that makes e p a s d t different and makes care and services for children different from those for adults and that because of forty three c the on availability of providers does not automatically absolve the state from ensuring that services are provided with in a  timely manner so those two provisions are working together and the district court correctly concluded that that the plaintiffs are likely to succeed on the i will say to rates figure in that part of the case because one of our theories of liability is from the amundson case which said that when one group of disabled people with disabilities is getting paid at one level and another group is getting paid at a lower level that makes out a liability theory for a violation of the what's called the methods of administration part of the americans with disabilities act and that that is what's going on here your honour's we ask that you affirm the district court opinion and order thank you thank you and you think further miss even before this lawsuit was brought the director was taking steps to try and improve the staffing levels for plaintiffs it's also not the case that every one of the twelve hundred class members is not receiving one hundred percent of the our know it's more than six months so there is going to achieve so only of course was released from the hospital and my understanding is that j m and some of the other plaintiffs are receiving eighty some percent of the hours that were so yes there has been some how many children how many children in the class or have benefited benefited i think there are five or six named plaintiffs and i think that there have been changes for those briefly to you know that to suggest that it's inappropriate for plaintiffs to receive care places like almost home or hospital when they need as much care as they do i just don't see how that can be the case there c do i don't know i don't don't misunderstand me if there are only twenty four beds at almost home then there are only so many children that's going to help but my point was was really the financial point to the extent the state want to argue money it's more expensive to put kids in a situation like almost home or certainly hospital than it is to have them receiving in home service so so whatever other argument you may have i don't think money is the one that's going to make it for you yes but again if there are not nurses who can provide that care that might be then i guess that was the judge the course seems to have thought that if you were doubled your efforts you would find this significantly more care takers and i guess that's what we're in the process of trying to find out now you're arguing to argue that you're complying with this order we think we are we think we were complying with the medicaid act before the injunction order was entered and so judge essentially restates the medicaid actiq affirmative steps except it includes in whole shift nursing services in particular which we don't think the medicaid act requires but yes we do think we're complying and unless this court has furthe questions we ask that you reverse in vacate the district court's injunction order all right thank you very much thanks to both sides of the case