thank you judge jones and may please the court federal law affords texas broad discretion to pursue its health care policies both inside and outside of the medicaid system that's district court erred when it ignored that discretion and order texas particular medicaid patient should be treated in a state run facility and almost does not say otherwise now the americans with disabilities act and its associated regulations have been amended on a number of occasions since the act st passed in the early and ninety s however throughout it has been consistent that when a state chooses to provide a public benefit it must insure and i quote that its decisions are based on facts t individual and not based on presumptions about what a class of individuals with disabilities can or cannot do that is what happened in this case mr harrison's treatment team submitted a plan of care which texas reviewed texas concluded that her medical records did not justify the level of care that she sought under an ordinary utilization review process in the medicaid system the state then at her request the looked into see if she was qualified for separate state funding part three b of now the there's a lot of confusion about what does and does not require because there's not been a great deal of discipline in applying the united states against marks addressed rules about plurality six justices nevertheless no matter how you look at it the states the states conduct here satisfy the americans with disabilities act looking st so the only part of the of the olmsted that is the law is that an unjustified the integration mandate as it existed and the integration mandate is a specific regulatory requirement that an individual receive a public benefit with the most of with the most contact with non disabled persons appropriate to her condition the and the while they dispute it in their appellate brief without citation to the record the only evidence is that mr harrison will have a more integrated situation and with better i apologize was told that she rarely left her room the medical records that ms missed that nurse a good way examined was that she rarely left her bed and the physical therapy that is required for her condition is unavailable and very at the dinner fire contrast there's an extensive physical therapy staff she'll have access to doctors of all speciality on campus and to the extent her unique medical condition allow she will have access to community outreach including field detail if the district court had allowed it but she determined that it that she didn't need to hear any evidence because there was a violation of which we assume it was an error so looking to the integration beyond the integration mandate if you will to what justice kennedy said in his concurrence which we were you look into see whether there are just there are disparate treatment between classes of disabled persons that has not been alleged in this case but even if you disagree with me on all of that she still hasn't satisfied the three part test in justice now there's no dispute on the st element specifically that that miss harrison and her family wish that she remains a very in garland there's actually no dispute on the nd element either specifically that state treatment official has determined that community service is that that service is in the community are appropriate for her health care and i say does not dispute it because it isn't they dispute whether justice ginsburg meant what she said when she said a state treatment professional their view is to read that opinion to say any treatment professional that is inconsistent with mixed with justice ginsburg language is also inconsistent with the function of medicaid with how medicaid itself function that doesn't meet statutory definitions under those circumstances it's perfectly ordinary for a state treatment professional to determine that the care was not required that is what happened here and she had the ability to move to challenge that conclusion in but not fundamental alteration of the state's program i mentioned those separately because the issue comes up twice st it comes up in her detail in her initial burden of proof to show that she's qualified for this program it comes up again later in the proceedings which we haven't gotten to yet that that the type of care that she would require as a deferment of defense is just too expensive or minister to plea difficult in this instance the type of seeking would represent if she has not shown the type of care she was that she was seeking would not be a fundamental alteration and therefore hasn't shown she's qualified the a c s program that she seeks is there so you would you acknowledge the affirmative of fundamental alteration wasn't raised at this stage correct but you're saying just to show she's qualified just to make an initial showing that just qualified so the ultimate burden of proof is on the state we haven't gotten there yet she never showed that she was qualified  a little differently than i do you still here mr right is used he was actually receiving the level of care that he had requested for years up until the point the state records this state denied it the only difference was he reached the age of twenty one dollars there was he was receiving the type of care that he is asking for in their programs for under chip which is the child health care program but the when he turned twenty one he was no longer eligible but it was the same care here that's not what happened  harrison's health changed and as a result the type of care she is she king is no longer what the h g s were allowed to help change i didn't see that and so that is unclear from medical records which is part of the reason why the state decided that she was not the type of care that she was seeking is not appropriate she was originally staying at home from two thousand and five until two thousand and sixteen then she got a ged gastronomy tube installed and she moved to bury in two thousand and seventeen we don't know what happened in april of two thousand and seventeen they require the additional level of care which is why the state requested her medical records on a number of occasions but the type of two hundred and forty seven basically intensive care unit type care she se if she truly involved that level of care required that level of care has an acute care system center that is provides care at an end basically an intensive care unit there are five patients living there on ventilators and there are some that live there permanently so that is an option a den it's not what barry is about and medicaid doesn't require and the a da does not require that we turn very into an intensive care unit it's it is there any is there any kind of unit outside a state hospital or maybe maybe the some gotten to this point in litigation but is there any kind of nursing home that ever supplies twenty four hour will be in the individual d patient not that i'm aware of and that's  claims that's precisely why she was not entitled to a medicaid they're hearing her claim is not based on something that the medicaid plan for texas provides it's based on the eighty a the medicaid fair hearing requirement is tied to under  dollars a a three that it is tied to what is required under the texas medicaid plan so there is no violation of that will here nor is there a violation of constitutional due process to have a constitutional due process claim you have two elements st a constitutionally protected liberty interest which is you or property interest which is usually defined by some area positive law and then you look at that then you look at the procedures here there is no medicaid medicaid  provide it texas does not provide it there is no source of law that gives her the right to the type of care funded out of state dollars that she is seeking and even if it did that this process here satisfies constitutional due process it's actually remarkably similar to the process that was approved in eldridge in mattie's against itself where the state of notified mr mathews that his that he was not point that he did not qualify for the public benefit that he sought and he was allowed to provide written evidence that was that he in fact did meet that requirement the supreme court looked at that noted that the evidence in the case in question involved used me involved medical records and medical testimony which is not the sort of thing where a credibility determination is necessary so that in person and person hearing would really be useful to improve the quality of the decision making process here mr harrison had the opportunity on multiple occasions to provide the state with the with medical records supporting the relief that she sought they looked at it they determined that that is not and that that was not necessary that the care that she sought was not necessary and that she did not meet the standards for the texas general appropriations act that she complains that she was not allowed to speak appeal of that however that is no different than what would have happened if she had asked a federal  agency to use its discretionary funds under the lincoln case that we cite that was there would be no judicial review of and a ministry of agency of the federal government and that's not a violation of due process in fact and we that that's a big reason why the court should have abstained it would be an anomalous to allow a federal court greater ability to micro manage how extent uses its funds than it allows for its own government and for that in your view so there are a number of reasons why rather is distinguishable st the particular type of care that had been provided to the individual was something he had been receiving for a number of years and then he became an eligible surely by the fact that he turned twenty one then during the litigation the state of illinois actually altered its medicaid program to exclude the type of care that it had originally been providing for mr rattus you see for about a decade going forward as a result with those two factual circumstances which are not at issue here the th circuit concluded that the district court should not have decided the case on the pleadings well when when when ill was not related to a cost cap that it was related to a change that removed the type of services he needed entirely thank you suggest that that was improper well i think the point the broader point is almost does not suggest that individuals should get special treatment if that comes at the expense of the entire state program there certainly is no suggestion or instead that an individual should receive special treatment but the burden of proof is on the state to show that that would be special treatment in other words that there would be a fundamental alteration and what that means is  is to indicate that assisting this individual would be at the expense of other vidual individuals in the class and as it was in the case with reddish esky in this response to another question that the court had program was about five thousand dollars per month the what the court says even though his care would cost between fifteen dollars and twenty thousand dollars a month at the in his home which was about three  times what it would have cost what the cost cap for the waiver program was what the court said was look that's not the operative question the operative question is what would it cost what would what would the state have to do to is not treating him differently than some other member of the class to say well look if you're going to do the same thing in his kitchen anyway you've got to devote those resources an institution anyway then do it in the community it's not it's not prejudicing any other member of the disabled community any other member of the community a large to do that when you have that obligation of the medicaid act to provide that level of care in the institution is just the location of the services not the quantity that's all we're asking for here talking about community placement on stead to meet the discrimination s that whether wherever she is she's not having that really involvement that social interaction and community involvement that to me is what olmsted's seems to be focused on the almost that is is talking about the right of individuals to have a certain level of community interaction but community actual interaction is not necessarily about outings into downtown fort worth are what community interaction is about being around your family your friends the people that can come state hospital but here's the thing about the state hospital bed as it appears in the record so the state hospital all of the the director of the state school support living standards did is said here or the services there are three critical admissions that both he and other state officials made in the course of this case and that is that one they don't actually know they have not even made a determination as to what level  but i thought the point where i doing here is twenty four hour lights and nursing care and so called integrated set right so let's stop worry about the other services that are available the question is what's integrated and twenty four hour nursing care right and so the issue is is not well to certain extent so what is can you get out of the institution and then be in the community and then once you're in the community all these texas waiver services work the same way i guess my question is how is your current placement different different than the denton institution well he seems to me in our state it's just it's not that different than being institutional it's different because she's with family she's with her friends just with the other people that she chooses to be with in the institution almost occasions when she can get out she can get out in and i'm again i'm not trying to be cruel i'm just asking does she communicate with a computer sort of situation she does not choose not to she's a bit but her mother has a mechanism for ninety four dollars which is the mother's affidavit expresses what what the family wants and it and here's the thing in terms of the community integration point the issue again is can she be integrated into the community once she's if she can be integrated community it's what she wants where does she want to go what does the family want for her if the if the if the state can't to show that it would be a fundamental alteration for it to provide those community services it's not for the state to dictate to her or her family well that what i post and she asking to be cared for at home again because at home is just her mother there and her mother her mother didn't care for her until february of two thousand and seventeen but simply decided that she just couldn't do that more the group home with friends and family there that's the group that that's the setting that is most like the community and is a is a setting in which there are it's it's a kind of institution there's it's not a a home in the community in a neighborhood a group home is literally a house in a neighborhood it's literally you know when you she has infection problems i beg your pardon i say no wonder she has infection problems in the group i was in facial something more of a nursing home where they come around and they scrub it down all the time well the actually there's she's with a nurse two hundred and forty seven right now and she's got a nurse there right now yeah that and so they're they're certainly taking care of all these sorts of issues but coming back to the issue of immigration it's important to recall with respect to the institution that although the staff member from the state school listed services but the denton state school provides it never he never was able to indicate that they would provide any of those services to her because on record of on peel minus six he squarely in the kids well we not only do we not know exactly what level completely on its head because you don't know you can even do the olmsted analysis you can even ask yourself ok you know how much parish me where we provided what location is best buy the software you can even ask that question the way they did it here till after she's already in the institution which completely violates all the yes your honor i'm just surprised at that argument just because you know when the state undertakes to care for someone medicare is going to provide two thirds of the funding if the state were not able to provide adequate care medicare would you would jerk its funding from the state of the met i mean not only morally legally and under the co operative federalism in vision by medicare the state is some blige to care for people adequately in institutional facilities so arguing that they're not going to care for her it seems more services you have to know what level of care she's going to receive when she goes in you have to know that it did issue going to be the six hours of care that ms suggested she might well then she's not even under the she's not even over the costco but you can provide that in the community issues you don't need twelve hours of care well if she's going to need twelve hours of care what kind of how are you going to provide that what level of services are appropriate for her are you going to be able to take her into the community if she's in de state school you don't know you can't answer those questions until after you have already figured out what level of care she needs in the state never gave any indication as to how that could happen that's why they had to be a due process proceeding as required by forty homestead and if you have a statute like forty texas administrative code forty point one that says well if she can be taken care of in an institution then we're not going to consider other funds then that is the reverse of  favoring institutionalization and in fact in the very waiver application but the state of texas submitted to the federal government it to space exactly a case like this and this is in record on appeal three hundred and ninety thousand three hundred and twenty that the state of texas change in circumstances that caused that person to exceed the cost cap what procedural safeguards do you put in place to make sure that there's no adverse impact on her and then that the state of texas says well we do three things we do we sam one way we're sources of revenue and there's no been no indication this case that the state of texas ever did that we consider institutional station or three there's possible state revenue funds that we can use to cover the excess of excess services in over the cost of the cap and then right after saying that the state of texas says if we're going to consider terminating her from the program terminating her waiver the follow on question which is undoubtedly there are hundreds of individuals in texas who share ms phillips tragic mysterious and tragic condition and based on what you're saying every one of those hundreds of individuals would have the right to go into a group home with twenty four hour nursing care is that not correct there have been only two cases that i don't care i'm just asking you what if we rule in favor of miss harrison is not the consequence of the law i don't believe that's the consequence of the lawyer are what is the consequence of the law is that state of texas has to provide a fair process for determining what the individual care needs or so let me ask you then suppose we do tell the state of texas that it has to have this fair process how can it come out otherwise and what you're arguing and all bad because the state of texas could show for example all of these things that we've been talking about today for example the state of texas could show well here are new to sion it's not actually going to cost as much as you're saying it's going to cost it's not actually going to  cost that much or the state of texas could say well you know actually the institutional setting is more integrated than any potential community setting that that really it's not appropriate for somebody in ms harrison is condition to be comparison between one it's situational setting and one group i'm saying it's about what what can you do in the community versus what can you do in the institution what can you do if you know if you've got a certain are you making the a relevant the cost cap is not irrelevant but in this case i think there are four dollars ways of looking at the cost at one dollar which we've already talked about as far as russia but the other three are this one is that the director of utilization review for this for h h s see specifically said look yes there's a cost cap but we don't that's not a strict eligibility criterion because we look at general revenue to see if we're going to provide services in the community anyway and if we do then we're still going to use the medicaid medicaid funding so the cost cap only becomes a hard cost cap if they don't use the other funding to supplement it the nd thing is and you can look at this time overseas werner case that is cited in the states briefing it's the th circuit case the th circuit in that case the really scamps on it you can't use a cost cap imposed by the state as a hard and fast eligibility criteria because you have to look st at what it means to be a qualified individual with disability and that is in the sense that that idea is never a hard and fast eligibility criteria correct but it's still relevant in the sense that the level of scrutiny has to be intensified once you get past the cost cap you justice kennedy reemphasizes this but the exceptions to institutionalization cannot swallow the fact that the state has to have institutions for some people you  you know when you're talking about mentally disabled people and i know something about that from family experience you are not talking about group palms that requires extensive nursing care the main object of those places is to give make sure that the people stay on their medication which they're otherwise not inclined to do and which they would be forced to have in the state hospital so it's in it from that standpoint all discussion is really not even comparable to what we're dealing with here which is severe medical disability as well as mental cognition i think that  that it would not be it would it would not be appropriate to say that there's a certain category of disabled individuals that sort of automatically deserve but i think we need to not i don't disagree with that we're under arms but i'm not sure that you talk about institutionalization versus community placement in the same way with regard to this kind of condition with respect to that kind of organ i think that it would be the state's bur this is just a plumbing area john i have a question about your evidence showing that sending her to denton would be more expensive than keeping ms harrison at the very group i assume that when you figure out what denton cost you're just taking a portion of the employees they have and maybe the air conditioning in the aid that electric bill means that that in other words there is all out of pocket to the state whereas isn't the dent in a lot of sunk say well look you know up until the preliminary injunction stage the state never even said where they would put or they never even gave us an it to show that they would put or then when they finally said that state school ok so we look up and and see what the state's own accounting for what those costs are and if they said ok what's going to cost three hundred and thirty three thousand dollars per on and on average for an average individual at the state now what that doesn't take into consideration is that  then so that's just the average cost for a patient there so it's not individualized like those are the numbers that we produce but luckily this court doesn't have to go there because this is all for later in the litigation or you know better yet if the if they provide the required  fair hearing they can make these organs if you're they can say all well you know it doesn't really call you know the kinds of things we're doing at the institution are really sunk cost we can't get out of you know you didn't argue that she had a time out state has to pay a dime and the state is it the wise and discretionary entirely discretionary well i would disagree with senator warner because the whether or not the federal government has to pay a dime is entirely contingent on what the state does if the state says we're going to use general revenue funds to supplement the medicaid funding then the federal government is on the hook for the medicaid funding if the state says we're not going to use know then you go to medicaid and you try to deprive the state of all its medicaid funds but you know your client you have cited no case you have just implied that your client had some kind of liberty property interest and  of receiving medicaid benefits has a legitimate property interest but again even without that it goes to the medicaid funds if this is one of the courts said both this court below the district thank you and i'll just make a few quick points st the court as judge costa and judge johnson both pointed out this is not really case about discrimination in the sense or integration because unfortunately and i also do not mean to sound cruel but due to her conditions miss harrison's conditions there is no funding functional difference between her being cared for at a group home and at a nursing home and almost that does not require in the medicaid statute does not require one or the other the state gets that discretion this is but this is a group home which she is currently had a group or some kind of definition of what a group poem is vs what i was just thinking in terms of the standards of hygiene and the fact that she supposedly has a compromised immune system and maybe a group home doesn't have the same required standard of hygiene is a nursing homes i am not an expert on the standards of hygiene for group homes but you are very correct that a group promise not criticize the state on a number of occasions for not determining precisely what care she needed now part of that in a large part of that is that it changes over time and it also changes and what the would have to do to provide that care also depends in part on what the denton facilities current census and current patients look like judge cost or your absolutely right about what those numbers reflect they reflect the total cost of the facility the numbers that plaintiff's coun cited the total cost of the facility divided by the number of patients at the facility so most of those costs go home and there in the form of salaries for state employees if there are nurses who under utilized those fries would not increase greatly if the if mr harrison were to come if they need to hire an additional nurse it's different but that is gone but what is required will depend both on her specific needs at the time and what else is going on at the facility so and going to the medicaid fair hearing and why we think that the type of fair hearing that he is proposing is inappropriate is precisely because that type of question isn't what a medicaid fair hearing is designed to answer it's designed to answer what type of care this individual has or what type of care this individual needs it would be a fundamental alteration of the entire fair hearing process if every single harrison's unfortunate health conditions were to come in and be able to offer evidence and require the state to produce individualized evidence about these types of sunk costs versus marginal costs versus here's what it cost takes also doesn't require any of that neither does medicaid but that also turns the point about my colleague office it said later in the preceeding the district court isn't this case isn't set on a discovery schedule to go to hearing that she states that she's entitled to after a trial on the merits and federal court and at the time we weren't even allowed to offer evidence and to meet the preliminary injunction standard and for that reason alone reman required so that a more tailored injunction can be entered and finally judge jones you're absolutely right about the implications of ruling in favor of mr harrison if we were rule in favor of m and what she requests and if this were to be provided to every single person in the state medicaid system at the level she asks for the system just couldn't stand it and that the federal law does not require it what's the record reference for support for her need for twenty four hour nursing care so her there are a number of in terms of her support the doctor she submitted for identical letters describe why she needs the twenty four hour care that she seeks and they're not supported by she's not into bated no she's not into bated she doesn't receive respiratory therapy she has never had at least at the time that we filed our brief should never had pneumonia i don't know what her situation is now there's no reason for her to have this level of the earth ok thank you your honest thank you