our fifth case for this morning is do you against r and in these decisions so i'm not sure that that's an answer to well but i do have but yes i'm sorry and i'll speak speak louder having had experience with the ministry of agencies the department hearing appeals there's no effort frankly to applying the e p a s the mandate in fact there's no real effort to imply in the medical necessity standard and of the west constant statute third it's a federal question and i think it's a pepsi case i'm not sure if that although they did stated if their position is i didn't exhaust my remedies or i'm sorry you didn't exhaust remedies that does not have to exhaust rim use a federal question and the finder stood this to be more a question about availing oneself of everything that's out there more than whether there's a lack of federal jurisdiction i don't think any of us woods was worried about that that it's ok if it's one of these very granular questions about whether somebody needs seventy hours a week of highly skilled nursing care or whether actually something more like twenty one hours a week would do with less skilled care the rest of the time this is very specialized and particular eyes knowledge that the states deal with all the time a big difference they do not and here's why i don't mean this disrespectfully the judge administrative law judge who presides over at least in wisconsin may be different in illinois simply do not understand the federal statute and from my experience they don't even apply the state statute in other words there's excuse me now there's elements under the medical necessity standard the last personal knowledge the last attempt i made to appeal a modification of personal care and i'm sorry for some therapy on behalf of the the response i received did not apply medical necessity under the state's statute and no way under any circumstances  al issue why bypassing the state appellate system because in part it was a reliance year on a more case from the eleventh circuit and that's precisely the actions those attorneys took in that case they withdrew their state claim and filed the federal action ok so so actually this is a couple of questions what one of them is focusing on the fact that it's a denial from a preliminary injunction and our standard of review is actually quite deferential to what the district court did and one has to show irreparable injury well it's my understanding from the filings that the care level that you think is appropriate i being furnished with private funds right now why couldn't they just be reimbursed if you were to win at the end of this case so i'm sorry your honor why couldn't the money that you're spending right now do you think on services that you think the state should be giving you why can't that just be reimbursed to the litigation trust fund at the end of this case if you do prevail and and because of money will make you whole then the classic standard would say that there is no irreparable injury the money will flow back into the litigation trust it'll be there for whatever future needs she has i'm not sure there's a mechanism from that for for that how about a federal court order well i'm sorry in the state of wisconsin you see reimbursement one and two that you don't think you don't think a federal court would have the power to say she should have been getting the night i misspoke i'm sorry i didn't know i'm not aware of the state of west cons having a mechanism to reimburse trust funds expended on behalf right now look at my question is premised on the fact that here we are in this case this is the case you brought up the district court didn't see that there was irreparable harm because the district court thought that if you were to prevail on your federal theories and the other theories that you've brought then the money the state wrongfully withheld from you could simply be given to you maybe i misunderstand the district court didn't likelihood of success on the merits factor suppose we agreed with you that you kind of move the needle over that line there still is the need to show you're likely to succeed in the merits are likely to suffer irreparable harm without the injunction then you balance you know harms with harms without all of that is relevant to our review i understand but the district court did not apply she big judge limited her analysis to likely just not like to discuss succeed on merits she didn't go through the other elements so why does that mean you automatically get a reversal if we were to decide that you hadn't shown irreparable elements you know i'll be random one two three and four and it's an and situation you have to succeed on all four of them as soon as you fail on one of them you fail it's not like they're in the alternative meaning what it's worth you know it's not worth anything it's was set up primarily because there was a lawsuit structured settlement spectrally trust for the sole purpose large it is the trust itself standing alone has zero value there's a if i make i'm using condoms out of the trust to pay or there's a monthly annuity payment you talk about depleting the fund is that implies that there is some sun which gets depleted every month and i'm just asking what is that some one thousand dollars no that's what it cost to care for to you you're being totally unresponsive you talk about money to be paid for her expenses depleting the trusts yes there when the matter was and i know you're saying what that when you say nine thousand a month that's not the value of the trust when the rest must have some val which is diminishing as money is paid for for her treatment so would you just tell me what that sum is that's being depleted it's already been depleted it was one hundred thousand dollar hundred and some change but oh well i think yeah i miss i'm missing something all right well your time has expired so i think unless you have one final sentence you'd like to leave us with we'll move on to state argument and you know all right thank you very much then mr murphy evaluation they decide as they did that the child doesn't need the seventy hours a week of skilled nursing care is there a mechanism under state laws to give her you know my hypothetical was twenty one hours a week of skilled care or if a skilled nurse came in for three hours a day seven days a week or two to somehow have some lesser amount than the seventy pretty that's a category that's sort of at issue in the authorization here there is another type of nursing called intermittent nursing that can be twenty hours a week twenty hours a week so it's going to have to put yourself in the intermittent nursing box if you had a person who had a need for less than eight hours a day of skilled level but who but it's not just zero or eight children there's some way to be in between that's right and there have to be an application for that interim and nursing but that is a possibility under the structure yes so did do you go from seventy hours of skilled to one hundred percent of the time with somebody with no training at all well what would the training at all she went to a personal care worker which is a less skilled level it's some personal care workers are trained to the extent they work organizations who employ them and supervise them they are not are in zero pm and i don't i don't think that it's the equivalent of someone who doesn't know how to take care of someone are zero skill that is certainly a less therapeutic services are another category of care that separately authorized separately provided what the affidavit there's a declaration of yours and theirs forever secularization makes reference to taking her to if there are people what is important about that is that a skilled license nurse was driving her to these places back and forth independent of that is whether she gets to go to therapy it might be a personal care worker who drives or to that therapy instead of an r n so the state took the position of who was driving the car didn't matter or in a sense that it was something that could be done just as effectively just personal care which does not require an ar and that's exactly right well doesn't record tell us it's do you has a need for some level of declaration to her own devices to propel her wheelchair she hits object doesn't seem to share that view i mean she's phrased her view softly but not all doctors understand how to speak lawyer speak as well as maybe they should she says it's her belief that do you has made such a standing gains in large part due to the seventy hours of skilled nursing she was cvs each week and nurses are able to fine tune on a minute to minute basis and she says i would propose a plea that aspire for dues continued improvement which sounds like a motherhood and apple pie statement of course you want her continued improvement she will require at least seventy hours of skilled nursing a week yeah the seventy hours number is used twice in that in that letter in the  factual suppose she had been getting seventy hours of skilled nursing for a number of years and she was just flat lined you know she wasn't getting any better you know depends on the nature of the injuries so some people might be in that position so you might make the inference if that were the case that it's really not going to help to keep on with the seventy hours a week because it's it's just not making any difference and you would draw an inference from your experience dr exactly the opposite entity you and d use case she's making great progress so far with the seventy hours so she projects the possibility of the second half of the statement looking into the future that if we keep this up there's going to be room for further significant progress so you're not just throwing your dollars the way you do it it's worked in the past we don't seem to have hit the ceiling yet so let's keep doing it yeah i think there's two important points in response first in that all the evidence including the doctor's letter do talk about do you getting getting much better and it's reasonable to suggest that the level of care that she needs to change is well like i said i don't understand that this  i don't have any reason to think we don't we have no cross examination here no reason to think that this is inaccurate for whatever it was but it was accurate it suggests that she needs continuous attention and someone who's who's an expert can deal with all sorts of ghastly stuff and she does how she says multiple post traumatic hydrocephalus post traumatic seizure disorder general epilepsy cognitive delay vocalizations speech delayed non verbal limited fine motor and gross motor likelihood of success on the merits to get back to the preliminary injunction standard i'm sorry it is hard to see why that describes a person who has likelihood of success and the merits is so poor that they get full time care right now it was ninety six hours a week at the time of the record i believe it to be increased a little bit so it's not as though he's not getting full time in the rubber sector issues important to show which he has been doing with prior authorization for skilled care  take a school nurse to to to help so when you say so that why why are you a qualified person to assess where the skilled nurse is necessary and where you know just a lay person essentially with a little bit of training that i've be taking a catheter in now if i am not kelly towns it is in the state regulations that make the distinction between skilled and unskilled care due and the declaration of kelly townsend who is registered nurse who is familiar with the standards has  may be refuted but the question here is whether it's seventy hours a week and we read something else from her declaration where i assume that you are speaking too fast i'm sorry the issue the decision here is not is not a not whether or no skilled nursing care is appropriate here it's whether seventy hours a week of a full time private nurse is is necessary and this declaration shows what that past seventy hours has been used for and it includes i transport missis do you tip over there you don't have to be an r n to drive there are many thought the reason don't they argue though that on route you know from the home to the hypnotherapy you know what if she were to have a seizure what if she were to m things can pop up at any moment then you can say well you know do you just you know be become for the next twenty minutes while we're driving over to where the horses are because you can you know so things could happen any time so if the skilled person is the one at the wheel they can pull over by the side of the road there could be an immediate intervention and all would be well on they would go this is the very first backpacked specific case but one thing the evidence explain is the type of seizures being alleged if they do investment fund from charles schwab that initially contained one hundred thousand in december of two thousand and seven it was a settlement the last part of the proceeds were  to maintain her care because at that point we had another nurse and another caretaker so she the us always supplemented her care from the onset with respect to the affidavit that affidavit or declaration was attached to the reply in the lower court i'm sorry it is that reply which is what the judge references in her ruling but it was also attached to read ply brief with specific elements of the medical necessity standard and the facts outlined in this roberts affidavit and just your discussion your honor with respect to d d u scare in is precisely what the mandate goes to to prevent the matters from getting worse from for to prevent her condition from getting worse and the point about the doctor's letter was precisely that because here's a theory and you you mention it your honor they will not pay for it she's not making profit if she's making progress they will pay for it and that's what you have to show when you use in that the meant not his position is that well she's at a point now where she's fine she no longer needs one final point eighty percent of brain development occurs by the age of three do you has a severe brain injury that occur at three so i respectfully ask the court to remand with directions and grant the injunction thank you mark thank you