actually there was there was a consent on the liability of the other claim underlying claim there was also some consent with regard to some agreement with regard to the scope of the permanent injunction then and some of what you want to argument that we have with regard to fully complying takes all of the bundle of of the orders which the court had issued including the january two thousand and four order which imposed performance  with the order the amended junk the amended judgment as well as the permanent all the terms of the permanent junction including those to which it it had to that it agreed there were some aspects of the permanent injunction which w disputed and which were imposed by the court in two thousand and four the court modified the judgment and ordered the implementation to mike burke argument if you hear my question ten seven and twenty one address the issue of whether there is sufficient as mass access with measured by the sufficiency of the number of a provider's clinical providers for this particular service therapeutic behavioral service there the evidence and plain and find is conceded that there was sufficient number of providers when the court denied the sixty motion it did not fine to the contrary that number providers rather it said well access had not increased over the two thousand and four level the point being is that the department has complied with the access provision as it's measured by the number of providers that is not in however there are some other asked access standard which is being applied to the department in terms of complying with the judgment that other access really goes to the issue of sanctions that the problem that the department at the beneficiaries do not have a stipulations if you will with regard to the permanent injunction are contained in the in the court's order and in the court's judgment itself in the published decision it tracks through all of those all the language to which the partner conceded in terms of  to in terms of the permanent injunction then the second half of the of the decision of the judgment then gets into a disputed issue of contentions raised by contentions raised by the plaintiffs positions taken by the defendant in the court ruling saying one where the other we're going to add this to the permanent injunction or not paragraphs seven and twenty one which are the our governor access are measured by way of the  number of providers again places that have agreed that there is not an insufficient number of providers in essence the department has complied with creating a an administrative scheme all affects things that were imposed upon you not things that you agreed to yes i believe that's correct though those it and that would apply even to the change in the laws with regard to the change in the lovely we take a look at the orders the change in law occurred with can solder with regard to my hands which was which occurred within one year of york of your agreement here card in two thousand the ways that on your hands for a couple of years before you brought up before you brought back in what you what you stipulated to which was a concession of liability at the time they can i don't think your argument to be that that there isn't it that there is an implied right of action under the under this provision of the of the of the code that's grand that and if you didn't these matters as a not as a matter of law but as a matter of policy in part yes as a matter of law there was a concession that then why isn't this just simply a matter of contract and why should we just simply enforce the contract what you get out of a contract was simply a matter of policy there's no law involved cuts off those rights it clearly has changed the landscape there's been a substantial change that law with regard to that your argument with respect to a forty three and perhaps all three subsections but aren't you pretty well stuck so far is the argument is concerned on a ten a pretty well decided by watson versus weeks with regard to a forty three the the the claim is based on a forty cited in a forty three b regularly in a forty three a there's language providing for informing all persons in the state who are under the age of twenty one and so forth so at least there's an glorious victory perhaps i think we're speculating whether or not that that would have been and that would have been the point the appeal which was launched from the original judgment let's focus purely on the issue of  the procedural rules governing the finality of judgment is not compromised or violated by maintaining or bringing a sixty b motion where there's been a substantial change in the  argument and along the way you will have a few i would like to think your honor that there was some good will on behalf of the state in order to implement those court orders in order to demonstrate some since a change in the law with governing the force ability participation goals and performance standards those clearly at that point in time as those decisions came down indicated that the court was without authority that there was no violation of law there is no protect the interest if you will with regard to participation goals and and performance requirements when the court in the district court in two thousand  impose those those obligations change the under change the amended judgement those are matters to which the defendant did not stipulate these were additional orders that were imposed upon  those orders were in violation of fundamental rules of equity they are not tailored towards anything to which the department had agreed to in terms of correcting the the violations of law it went far beyond found in tab two of the supplemental excerpts of record at page nine and in that stipulation the state did in fact agree precisely to assure access to the medically necessary mental health benefits and issue here that was the exact language we shall ensure access to the staff that in two thousand and four there were two additional stipulations and i think the timing on them so important the first was a stipulation in april of two thousand and four that was the result of extended negotiations between the parties and i've done this case long going to five out live several attorney generals or succeeded several attorney generals i remember those negotiations well we made a number of concessions with plaintiffs did we gave up some things that i think we could have won in an appeal that was pending before this court then the state did appeal from the two thousand and one judgment they agreed to dismiss that appeal in exchange for these concessions we made a bargain as part of the bargain and the state stipulated to entry of the entire a judgment and the district court's order and their motion to vacate a tax not the two thousand one judgment but the two thousand and four amended judgment so two thousand four it's actually april of two thousand  that's the day at which we have to that from which we measure everything there was a third stipulation and july of two thousand and four in which the state agreed to  develop a corrective action plan to redress the noncompliance that the court had earlier found as judged by the pointed out in january of two thousand and four the end of january the court found the state out of compliance they supplemental excerpts of record at one o seven now let's look at the timing here gonzaga as we've said earlier was two thousand and two the to prevail the state would have you i would never presume to speak for judges can one as to his judicial activism but my reading of sanchez is that it applied the supreme court's holdings in gonzaga and lasting it did not change the like i think it's very important to look at the problem with the states picture is the lower court's decision judge wilkens decision in sanchez in two thousand and three the attorney general pending before this court judge will can issue the lower court decision in sanchez finding based on gonzaga that there was no private right of action so clearly the attorney general's office knew in two thousand issue or at least persuasive and i certainly find it but it's out there on the other hand i'm not sure about whether a forty three whether it's a b or c b or c does not work does that leave us in this case i think that has no impact on the outcome in this case for several reasons first and the complaint in this and my position is that we'll have no impact and your it would not lead you to reverse the district court's denial of the motion to vacate eight ten and a i driving engine in the medicaid act and the provisions about which the parties now have a dispute do turn on whether children get the medically necessary services that they need in a timely fashion without is all driven by a ten a and not by a forty three thank you i'd like to turn for a second to the state's third argument which had to do with their that there's a change in the facts and that they're now fully in compliance here they have a very difficult burden to carry to show that permissible views of the evidence the fact finders choice cannot be clearly erroneous no matter what you in court may have thought so even if you would agree with the state that there was no evidence to show that they'd come into compliance there was plenty of that and it's to show that they were not that judge matsch relied on the evidence to show there was that indicated there was no change no improvement in fact some decline he had there was plenty of evidence in the record viewed as a whole to support his conclusion of no change and i'm only seeing i turn to general this was an unusual notion to vacate in that the state called only what the state presented evidence from only one witness a single witness in support of their argument that they were in compliance and we took that witness his deposition before we filed our reply brief her her deposition testimony was before the district court and we've included a pretty hefty hunk of it in the excerpts of record and so the state's single witness reading mckay was tested under direct and cross examination and all that was presented to the district court we presented of declarations from medical experts families children clinicians the state didn't seek to take the depositions of any of our experts they didn't really term apart at all that was the record before the district court it was pretty extensive and if you look at that record as a whole which is the standard for clear the district court decision that there was counsel spoke of the stipulations that were agreed to and she made reference to the january two thousand and four order which required the department to come up with a plan of action that was an order that was issued by the court finding that there was a low utilization and directing the department to come up with a plan of correction to address that is not a stipulation it was a response to an order of compliance with an order to tend of action in order to increase t b s utilization p b s utilization as i indicated before was a change in the agreement or the contract if you would in terms of stipulation that was something that we that the state did not agree to it's outside of the of the nature of the and to find that the department was not in full compliance the sole evidence that the court looked to was the special masters report and we've asserted that there is a that that consideration of that evidence constitutes