regulatory requirement that their hearing process may vote in final administrative action within ninety days and that's because applicants like mr bliss mr here do receive a definitive decision on the issue presented to be administrative appeal that closes out the issue presented by their fair hearing request that type of decision that aspies the meaning of final administrative action which has to be understood in context in both the federal regulations and the medicaid manual receive or accept evidence of anything other than mr smith's or specific case and so this was not a situation where a record on the broader class was developed in addition  course there may be any number of differences with our big difference with respect to the issue in this case well i want to start by emphasizing that the supreme court said in walmart's the question is whether there's a common makes him a different sort of applicant from the normal one i don't understand let me interrupt and say i don't really understand how this is relevant at all to a legal interpretation of the statute defining the state obligations to provide a definitive answer on a prospective basis for the prospective injunction that requires the state to do so that is a legal interpretation that affects everyone who may be applying  has applied to medicaid there's no damages claim here looking backward so this is quite unlike walmart this is really for rebooking in every relevant respect and therefore the numerosity and the other elements of her twenty three seem to me that a spy on the face their face although the district court obviously could have gone into more detail about them why is that understanding and correct well just advance changes that have to be back here but i do i do want to get to the merits here because i think some of this is bound up in a dispute over what the meaning of final administrative action here and when i was saying earlier that meaning has to be understood in contact with the reason is because the regulation here and the medicaid manual talking about final administrative action in the fair hearing process and  it closes out that issue and has the local district you must comply with the directions and the finding of this administrative appeal now there is a contest here we are not saying that every decision that is issued would be final under that understanding if an area and then that you will recognize that the language that the plaintiffs here relies on is language that says we manage the local unit for further consideration is not a substitute for definitive and final agency action and again what that means in context is further consideration of the issue that is presented in the administrative appeal which is a challenge to what is required for the local district the statement of their specific reasons for the denial of medicaid eligibility and another way to understand why that is administrative law well it could be written in that way an argument is that it is it is not and i think there's a couple of reasons why i mean one is a fair hearing process is that up as an appeals process it is set up  process where on the one hand the local district is required to give specific reasons and then in the administrative appeal those specifically things are evaluated on the record that was produced in the local district so they're sort of officer berman eligibility comment on that particular feature of our state plan but i want to there was a witness who said that was it was an a l j that was well i don't want to answer it  a further determination from the issue that is on appeal will require either for the fact finding or for the factual submissions that are either not available for sale today or not easily accessible that's true in this case is that because they would have to  is the relationship between that regulation and the one called timely determination of eligibility which has a forty five dollars day time period the relationship between the two is that  refers to the state agency resolution of the staff here and that deadline is march from the request for a fair hearing and so there are different times where deadlines are triggered and they refer to different actors in your system and satisfy different purpose and the forty five day period suspended when there is an administrative appeal i think the way to answer that is that the district has to issue a determination i mean how many people are in this class we do not know the exact numbers here one of the burden here is that the state does not code for the specific type of fair hearing decision that is satisfied if we agree i mean we we think it has not been established here or is not at least found by the district court with record evidence and there is a serious question about how that number will be determin now after after after the there was a there were two steps to the administrative review process is that correct the hearing officer and then on the ministry of appeal within the state  right in in in this case i'm just pausing because in this case it's not it's not necessarily a review the hearing officer got them and they should have to be confirmed at the final at the final  answer to that question or i certainly do not and that was a failure on the local districts part that was corrected when mr listener flagged the issue with a compliance unit and the compliance unit reached out to the local district and basically notice recommend that people contact compliance binet if they haven't heard from the local district within ten days those are the state procedures that we've been referring to in our brief and i think that the solicitors on example shows that when that complaint is raised  thank you very much  merits at page fourteen of his findings judge webster did favorably reference each statutory prerequisite and concluded that the class should be certified but the conclusion was preceded by forty seven dollars paragraphs of fact finding with connective citation to specific federal laws and regulations multiple trial exhibits to glean from nine hundred and ninety four pages of documents that were produced for trial and deposition and trial testimony he noted in a spy means that the class motion had been fully briefed and deferred consideration of it until after trial judge calibrates the earlier mentioned the sherry our case the specific quote from there if i may it is not required that this record make express findings on each requirement with a basis for the ruling is data from the state that was appended to it indicating a class size between twenty million eighty two thousand and ten of approximately one thousand seven hundred and there were subsequent foyle disclosures again from the state i defy identifying as many as twenty one thousand class members by december of two thousand and eighteen that would be the lower court docket one hundred and twenty three days to so as we understand it in in this circuit judge forty or more members suffices for numerosity purposes and at one point the state the state was concerned that identifying class members as part of an implementation implementation plan it's going to make any binding that those numbers were within the class that defined there got of the people who are within the class as i'm defining yes and you just told me he didn't do that well he didn't put the numbers in and he didn't make that specific conclusion but it can certainly be drawn by inference from the prior fourteen pages of his findings let me and from the record as a whole are about it the judgment begins and classes certified as follows all past present and future medicaid elements that were correct there should be applicants well maybe it is the better word but this is the word we're stuck with and it is was unclear to me as a means of talents to the court when they're denied or or people who want a fair hearing proceed to form your own one on the ballot  review after the fair hearing your on every word but in when neither you nor i know what it means your honor the word appellant within the context of the fair hearing procedures that we're talking about would most clearly mean just to be clarify because i noted this from your earlier question you know there was some discussion in the state papers about two different forms of administrative appeal we're talking now about a direct state appeal with a hearing officer is an officer of the state makes a recommendation to the state hearing authority we're not talking about a local evidentiary hearing scenario d which only applies in one state in the union anyway i understand this is a state hearing the state hearing yesterday yes and the appellant and there is there is a nd level of review up to the supervisor is that right actually the hearing officer under the state system merely makes the recommended decision that then has to be confirmed or certified by a supervising hearing officer designee of the commission of the state department of health so this up one level it go it all of them do whether the hearing officer does not have the ability one way or the other to render a final decision that's left to the hearing the state's hearing very funny word cover that long phrase you just me and i answer your honor i don't have the new york social services law in front of me to define these terms but i've been doing fair hearings for thirty years and the term appellate is colloquially or perhaps even more formally defined to include someone requesting a fair hearing all right so if it means someone requesting a very hearing yes let's move on to the last clause that says fails to direct final and then it is corrective action yes that cla that what you just well again i haven't gotten to the merits yet your honor but it's certainly our position in the state and the position of the department of health and human services that a fair hearing decision that does not render a definitive and final eligibility determination is not a final your honor in this context would be that a person precise directed to the local agency to open the case which by the way and check me is this quick made very clear that the hearing decision needs to be rendered within ninety days and we have no problem with that we agree completely but the corrective action the implementation of the decision the actual opening of the case that's what we're talking about now and the corrective action can certainly take place in terms of implementing  and you know mr wu talked about interpreting all of these rules and regulations in context and i guess i want to begin with a very simple and straightforward context if you will the need for a prompt resolution of eligibility is apparent from the nature of this program i mean for medicaid claimants they may have waited as long as two hundred and forty days to apply for medicaid benefits to request a fair hearing pertaining to their denial and to finally then get a fair hearing decision within the ninety days that shaq misa lots at the end of two hundred and forty dollars days i think the of clinton would rightfully expect that by then his or her eligibility would be conclusively determined one way or the other and that expectation is fully supported herman conclusively at the hearing officer level when there had been a determination of whether he qualifies for the excess exemption your honor your hon follow exactly what this hearing officer did and i think it answers your question hearing officer is icky realize that she needed further input from the local district and she had an interlocutory remans not terminating the hearing by remanded least initially but on an interlock atory basis sending that question back to the local agency in order for that local agency to answer that question and then write it out he's a little better along when he did that she didn't violate federal law when she did that we claimed the federal right to a final decision was violated when she then turned around and remanded terminated the hearing outright and remanded the question of eligibility back to the local district at that point without terminating the hearing in other words she calls an adjournment which is what she did the matter then goes back to the local district with a very simple issue does this particular administrative directive resolve whether or not this man qualifies or not the locality refused to make that determination and at that point when they came back and said look we did not apply the directive they even asked the hearing officer to render ineligibility determination and rather than rendering it rather than looking at that directive and judge i didn't get the context of your question is that something that you that in this bill back you say the hearing officer made on the state st i thought you said she didn't violate federal law now you're saying he made a mistake by sending it back those part he did yes that you're wrong for seven reasons she said you're wrong for one reason yet he said you're correct they need to do would that actually what you want them to do your honor it's our position administrative directive that the state itself you know if it turns on his facts you know what is the exact best income and what are his bills yes and that was part of the fair hearing record that the commissioner's representative had an opportunity to review but they simply refused to make a determination of his eligibility even though they were there why did they have a policy that if the issue is doesn't apply and she says yes it does apply and he sends it back to the local agency what's wrong with that because the local agency did not come back with the determination and she then refused to make it herself within the ninety days that the federal regulation requires for a final administrative action the erred was asking whether she erred your honor the local the local agency is an agent of the state in new york state it's a single state agency and at that point when the local agency refused to act it was incumbent upon the state to do so with its own policy directive it had the information it needed but rather than rendering a final eligibility determination they terminated his hearing outright and remanded it judges if he went in the right terminate the hearing outright leaving the solicitor exactly where he started from and in terms of his right to render a compliance complaint what with the compliance complaint have done that st of all just to correct the record because it's been the briefs were incorrect in this respect as terms of the redetermination by the locality and we filed our federal action a few days after the fair hearing decision there was no there was no such official complaint to the compliance unit of the state and why would that have made any sense anyway and i think that that is absolutely incorrect i think it's incumbent upon the state that it has to ultimately decide your honor every time the state issues a fair hearing decision affirming a local denial that is an eligibility determination believe determination in the negative this lawsuit is attempting to get the state to act in an even handed manner where applying the eligibility criteria the state itself devised in its own regulations as office with those regulations that should yellen i'm having a little difficulty hearing you there's some interference could you be speak as clearly as you can and lastly and to your microphone yes your honor to send a better a little bit but i have let me let me see if i can change it one more time still determination that's fine results matter but if the state local agency doesn't necessary hearing itself within ninety days has to result in a final determination of eligibility not a discrete issue that is right and he then tells the agent the local agency which normally determines eligibility go ahead and see if he qualifies under the excess income regulation act didn't do it but that doesn't implicate the entire illegality of the state's gearing hearing officer procedure that's not correct your honor for the following reason the statute itself attributes responsibility for the or another way however vague themselves up they have a duty to arm and eligibility within days and they can up by setting themselves up in a complicated wa and our brief and i'm happy to go over some of that what i think are the most persuasive reasons explicate in more length why the regulation is best understood as requiring a conclusive eligibility determination that ninety day period as we have mentioned the text the grasping history especially and basic administrative law principles to just that and administrative decision is not final unless it makes  conclusive determination of the key right at issue and here the key right at issue is eligibility if i might well that's also well wait a minute that's eligibility is always the ultimate issue the guy wants to the state's ultimate eligibility determinations and the question is whether the fair hearing decision regulation requires the state at the end of that ninety days to get an up or down decision about eligibility the answer is yes it does it make there may be subsidiary questions that need to be results but it's the state and the senate does that little law care whether that ultimate decision is made by the hearing officer or the piri or or the local denied again the claim and now it has to go back up to the state fair hearing process that whole process the conclusion of the state fair hearing process has to be completed within ninety days if the local hearing officer determines that the claimant is eligible that will end the matter there won't need to be a fair hearing but if the local hearing officer concludes that the claim it is not eligible and it has to go back up on a fair hearing that and at that point there was time for the local agency to act what's wrong with the local agencies did not act conclusively within the ninety day period it was at that point  they had seventeen days to act and they did why one earth would there be a class action that has a federal court regulating what i'm hearing officer at the state level to do when the fault is why in the case where a hearing stated hearing officer correctly ruled the issue before her and sent it back to a local agency which had seventeen days supervise the administration of a medicaid plan any action by any component of the state is attributable to the state as a whole so the point that the united states would make here is the state has some discretion about  fact finding if it needs to but the ultimate decision about eligibility still needs to be completed within ninety days and that was not done here as to the specific issue about class certification as as  states has not taken a position and i can't speak to that precise issue but what i would like to emphasize is that new york has set up a system such that it is supposed to under its own policies j s six  its local units are supposed to address any reason for the action that it has taken and so if there are videos so if i may is your position within i would make a slight tweak to what your honor said united states have taken no position whatsoever about the propriety of the class action here we do take a position on the merits that final eligibility determinations should be made must be made under federal law under the fair hearings regulation within ninety days a state may structure its procedures as it chooses within within the limits of that federal law must be made within ninety days if the state does not make that determination within ninety days it has acted inconsistent with federal law regardless of what its state own state regulations require or state procedures in this is the one other way but mr yallop to another another i'm just thinking that another way of proceeding here that would have been to issue a declaratory judgment interpret ing the statute and regulations to require a determination by a state of eligibility or non eligibility definitive term determination we did not days however the state chooses to structure that administratively that would cut off the concern that the plaintiff has raised of the without without and that the state then clearly there's an obligation to render an applicant a definitive determination within ninety days and then the implementation of that to be determined depending upon how large a class is effective and on the particularities within the state but that's that's where the government the federal government disagrees with the state's position about the what the nature of the obligation imposed by the statute is that room let me let me try to different way of if in this right after the hearing officer made the decision she made and her supervisor approved and she sent it back and there were and we find that he does and we give him the money to make an eligibility finding that comply with federal law yes your honor because that would have been  determined that it happened that they'd be in violated they'd be in contempt because they're enjoying from doing what i just held out to you they can't do that they have to do it at the hearing officer level your honor with respect again the question is to whom is attributed the decision if the eligibility decision is made on remand that is attributed to the state fees that ok you get the money you're eligible you said that would comply yes your honor yes it would comply with the question however i am i right it would not comply with paragraph three of the judgment but you just told me if they sent it back within ninety days and the local agency found in eligible that would be ok your honor i think there's a certain amount of ambiguity in the provision that you just read i think if the fair hearing officer at the state level sat there is an important factual question that needs to be resolved by the local unit we mandating it keeping the case open at the state level and read what i understand that provision to saying is that a state officer a state hearing officer may not definitively mandate case that is concluding the fair hearing such that a claimant would be in jeopardy that if a an adverse decision were made at the local level be hearing the claimant would then have to a pie for a new fair hearing which under new york understanding would reap start the ninety day eligibility is determined within ninety days why don't we have a judgment that says that that's not what this judgment says at all well but isn't the question then if there is an ambiguity in the judgment below aren't able to do it jacobson really man to make that judgment clear and do what is needed if we were to agree with the government that eligibility move in should be you know has died of course and judge bianco picked up this matter for purposes of the of entering a final judgment so there is some a little bit of a barrier there that obviously we could read and for further proceedings to clarify the order someone will need to implement i mean if we were to firm somebody to implement and also i would want to hear i think from mr matures counsel as well and they will hear from the the state about this i would point out that later in paragraph three the reference is still to and i did a deadline to render a final determination of eligibility as being the had just had just put about whether you would oppose a dream and of some kind to the district court level to clarify the meaning of paragraph three and other aspects of the order having worked something you have a problem with it took about it took about ten months of negotiations to solidify that language your honor and it pains me to think that more time would be necessary but obviously if it's a concern of the court and there's an ambiguity that rectification i wouldn't have a problem with that again as you  out you know while we're talking about the judgment i guess we'll have i don't think gotten an answer to the what the last clause is doing there that talks about corrective action the regulation on corrective acting which is fo thirty one point two force big says the agency must promptly make correct the payment i take it you can't correct the payment until there's been an initial payment determination there has not been  address the question on the table which is we have understood paragraph three of this injunction to do exactly what jeff newman was referencing which is requiring that they are giving the station itself to reach a final eligible determination and the one thing you just say this law does not require you to make payments within ninety days and it does not require you to make and determination of eligibility with within ninety raise that issue so we have two arguments here just to be clear we do have the broader argument that so long as there is final action on the issue on appeal and i get it that line does not apply and there is not a requirement that that is correct but i do want to make clear the nd point is even under h h s is interpretation where they acknowledge that the state would comply with federal law if the local district issue a determination within the ninety day period this injunction goes further than the federal government's position even back because it is a this is the case boldly against the state agency and so the sense that they're hearing process and the injunction required directs the fair hearing process to proceed in a certain way and so i think these are sort of two different ways of understanding quite different ways of understanding that getting the same conclusion which is that this injunction is is improper well let me let me let me pursue your answer to judge calibrator are you saying that when a claimant goes for a fair hearing on one issue as this claimant does and he gets a favorable answer favorable on his one issue out of the hearing officer then the ultimate eligibility determination has no time limit whatsoever that could take five years well i disagree that there is no time that we are saying this ninety days and what is over by good we've got that there there is not an absence of a time limit so if the hearing officer determines the one issue on administrative appeal what is the time limit that kicks in the point well i districts and that is the reason the compliance unit exists which is i'm sure you're going to follow up well there is no so after the hearing officer has ruled in the guy's favor on the issue raised the either at the local level or th hearing officer level there must be a and would you believe decision as soon as possible as your position that's right and the federal regs contain a similar directive in the corrective action regulation  but is there any is the plaintiff's true the picture of the endless loop of appeals as to which there was ultimately no no deadline imposed that is you go back to the local level you have another hearing another issue comes up and then you go back to the hearing officer and who makes a recommendation to your supervisor on another particular narrow issue they say we can't decide ultimately eligibility but you win on this appeal to we send it back down to the local folks they make another determination it has a flaw and you go up again potentially without end and everyone would have been acting you know as soon as possible to make their determinations but ultimately as judge newman suggested viewers could pass without a final altitude billy determination is that correct well i will answer this way which is that which triggers as you say a duty to determine eligibility as soon as possible let's say a month goes by and we're now at the rd day what what is the remedy under  commissioner b o h commissioner is empowered to use all available means one for spam and two and something that hasn't been mentioned yet is that many medicaid benefits are left with the date of application so that is a one of the protections against made with your permission judge newman as a matter of technical policy there is an a t m from about twenty five years ago that contained a single sentence and it thing that a notice must contain all reasons all possible reasons all at once so that every reason could be considered at the fair hearing level but i just want to direct the court to page thirty four dollars of our brief for further consideration pacifically footnote ninety nine dollars where a supervising hearing officer james ryan testified and i asked him the question if a person applies for medicaid and there are ten different reasons to deny an application must the notice the ninety application list all ten his response no it's not required to list all in question if the notice only needs to list one reason for the local agency issue another notice denying the application of service based on a nd reason if the matter was remanded he said it could cause the logan agency keep issuing denial notice based on a new reason each time it could with the medicaid applicant have to keep requesting fair hearings as to each successive notice yes that could happen that's a supervising hearing officer one of the commissioners designees that signs off on these fair hearing decisions so as a technical matter while the state said twenty five years ago to the