their complaint that they are required to change the manner in which they practice evidence and practice medicine and that they are no longer to use their own professional judgment in deciding says that the nature importance of the program activity and the services provided by the programs for the people's lives will be a determining factor in here we've got the didn't read the policy guidelines and determined based upon their reading that they are required to prove pike these services and it would be in a motion for summary reading the first or there is no allegation of the actually part of course after now right it wasn't necessary for us to specify that particular statement in our general obligations  the complaint seems just say well we were required to provide interpreters and that doesn't seem supported by the guide so i don't know what that i know that's a standing problem maybe it's a merits problem but it seems to be a problem well that would be more to the merits which we ha of action is to determine they want to know what the legal rights and remedies are under the policy guidance because right now these positions plaintiffs are being required to based upon their understanding  specific with respect to family members first time as translators a says is permissible but it gives lots of reasons why in certain cases in media that idea and a specifically says the recipient may not require an know if he had if he read this to say why can't require he asked the mother do you want to the daughter i guess you want the daughter dress lazy is a no will of course then he is required not he was the daughter but he doesn't say one way or the other  unless you were to tell me that the mother informed me that she did not want her daughter to act as a translator in the normal situation is and we know this in the various affidavit filed by your people actually that the parents on was asking you mean i fully understand and agree with your argument that the purpose of the car her judgment serves as you can say well listen i think this requires me to do x but i really don't want to and i would argue with that it does not or that judgment become so removed from anything that might actually be required that we say yeah you're right go away because you have your subjective interpretation of this is sold demonstrably wrong at what point what one does that happen it happens because  in the situation and i think that our questions are on a different point i'm having a hard time understanding how close the two thousand and three policy times is the cause of any injury that these people may have suffered  the document is from seven thirty two thousand to one it shows a whole bunch of enforcement actions before this two thousand and three document was promulgated then the government's position as i understand it is that we've been enforcing this general balancing requirement you flexible requirement for three decades and all we are doing in this in this document is trying to tell people how to assess for themselves what you know what that before the policy guidance was adopted they were able to use their best professional judgment in deciding how best to communicate with their patients before hand they could do an assessment of whether or not interfere or  germination so you're less likely to get in trouble you know i think is as dr colwell indicated that part of the policy guidance and even today he does not want to discriminate on anything he suspects so whatever s why is this right or say it this way what are the questions you seek to litigate why is the record and the degree of injury you claim sufficient to allow us to go forward confidently why in other words the sort of the abbott labs balancing test because they believe in in the next as well you balance off the hardship to the party if you can adjudicate vs how much more you might learn that would be relevant to the legal disposition if you wait i'm really after question that they would have to the then you would still have a discrimination losses in fact it doesn't necessarily work but department of health and human services has done is excluded langley which was national origin and there is no way that against the policy guidance and when you do have this type of the dilemma or that of the stations that either they have to change their conduct or face the possibility of an unsportsmanlike action or national gun but that's before the two thousand and three policy guidance before this policy came up the doctors were able to use the best professional judgment in deciding how best to use the piece of having the trouble with i'm not having trouble with the general notion that that if you have something that is in fact mandatory it doesn't have to be enforced against you before you can have standing but i'm having trouble understanding what the connection is between policy gu they're professional reputation are always very very important because they don't see trust in the community this policy says that if you are investigated what the way the policy guidance and this is something that we want to be able to develop is the policy guidance and there is there are no other tasks that are necessary is that the burden is on the physician to show that he is not intentionally their own professional judgment in deciding how best to communicate with their with their patients the saudis have one other question which is you file first read in relation to one of two thousand and three policy kinds of the two thousand and three supposedly just a turn interation of what was happening even before that so and this goes back to the issue that we were talking about before i mean how how much deference for standing purposes do we give to his understanding of the law as opposed to the ray did that because the department of health and human services kept changing or modify the policy guidelines this is the first one which seems to be clearly solid this is  means tell us what it means because of it and if we tell it and if the response of the court tell you what it means yes you don't have to do any of these things that new affidavit you claim you're now having to do in response you have to go away right  plaintiffs to provide translation services the policy guidelines don't require them to provide translation in any instances it is title sixteen a simple many regulations including forty five c o four eighty point three and in the executive order issued by president question and i don't know only answer it better if you don't know the answer has to be i don't know because the question is what new obligations if any does this policy guidance impose and i'm asking you did prior to the families know this policy guidelines these forth was this four step test incorporated and you know the answer is you don't know i do not know the answer to that you are i can tell you that the h h s guidelines were based on guidelines were first issued by the department of justice and i believe it's two thousand and purpose of this policy guidance is to assist recipients in fulfilling their responsibilities this policy guidelines clarify this policy guide as existing legal by providing a description of the evaluation where the recipients are in compliance with title six and the title six regulations looking now solely at the two thousand and three regulations is it a requirement imposed by this policy di that  reasonable steps to assure a meaningful access to their to their programs and activities well designed to be a flexible in fact a kind of standard the starting point is an individual ised assessment and balances the following four factors  know your briefs argue that someone and the injury in fact could be either the require i mean would you agree that it would be an injury in fact meaning something you have to do that you can have to do before if you simply have to go through this analysis without we have from the various plaintiffs that they have performed the four step test although they don't say that what they do is say the head of the guidance requires me to do x now how can they know that the guidance requires me to do that she was prohibited from using the bilingual daughter of a patient that's clearly wrong well not necessarily he didn't say one way or the other as to whether or not the mother objected if the of the plaintiffs to take any concrete particularized action i think a word about it but it doesn't here this is very different from the hemp case for example in which it was impossible for those playing host to mean sometimes negotiation is listen i'm going to do something this could be very expensive to you and i unless you want to undergo the expense i suggest you do the following you know i have no idea what these negotiations did or how they carried out and so long but it doesn't could be a factor in our favor but it's not required there's no requirement that anybody in their information you know go through and document each of these four factors or do any supply of extensive analysis because i'm not sure that you're right although it's a little unclear from the guy and i'm just reading later on this after that several pages after it's on page seventeen but this is a discussion of what might or might not be required with respect to family members use as translators the guidelines are pretty skeptical about using family members as translator in certain circumstances and i actually kind of share the skepticism they'll be certain matters of privacy embarrassment all kinds of reasons why you might not want your ten year old child to be a translator to describe all your medical bills and it says specifically the recipient has to say that the health provider may not require an l e p person to use a family member or friend that's not her because that's a that's not just hey here's a four step test and then you kind of do what you want afterwards that's a very specific direction and i assume that if somebody if you can prove that someone comes in with the new mom comes in with the new the thing old daughter she has an ailment there's in some respects quite embarrassing or for maybe not embarrassing really but for other reasons important to her she does not want her ten year old daughter to know about it and she says please don't make me lose my daughter if i have to i will because i i need to be treated but please don't make me do it and the doctor says sorry could say well i guess i'm told because i don't have any standing that means i don't have any injury or she meant i don't have that divide to change my behavior which means i guess i don't have to abide by this now most doctors conscientiously trying to follow the that would meet the requirements of our history why don't we have it right now given these affidavits to say you know i am changing my behavior in response and one of the arguments then in the case would be ok let's find out exactly what behavior you are changing and let's decide whether or not is one violation of the guideline just the doctrine title that from a court of law there's in theory yes but they're certainly not enough here in the complaint or in the declarations  thousand and three guys i understand that you're challenging this particular policy going but you're clearly what your clients actually see in the much more interested there is whether or not any form of sort of translation services may be required in the treatment of patients and that claim really runs not only against the two thousand and three runs against the the regulations that you're purporting not channel no we're not challenging the regulations because the check the regulations don't require unfortunately national origin discrimination they talk you call says there's numerous methods that he is employed prior to this mandate by the federal government on telling him how he's going to communicate with his patients he doesn't want to discriminate he mentions that he does not want to discriminate and he hasn't done it in the past and the new new do it now how do they do it before the regulations wor well that that's what the general allegations in our complaint says he was able to do tell me how he does it but we did it before before it would be a case by case determination based upon the patient's needs whether or not he can communicate with them in english or through body language or or whatever thinks means make sure that he is able to communicate with each of his patients to make sure that the regulated well certainly they want don't want their brady lation to interfere with the medway they've practiced so how will this regulation interfere with the way the great because right now it's objectively and reasonably how this regulation you know what would cause them to change maybe they've got a lot of fear maybe they've been reading the medical economics  actually requires and what is it based upon sometimes more than just an affidavit or two ok and what is it the you've done in response that is different from what you otherwise would have done so even if you survive at this stage declaration you look at the order and if your reading of the answers is no he did not look at anything but the general allegations