a successful takings claim has two elements st a taking a private property for public use and then nd in a little plea distinct a denial of just compensation for that taking the supreme court decisions in nick and monsanto old confirm that the th amendment forbids only the denial of just compensation after the taking has occurred and it doesn't forbid the taking itself so those cases both monsanto rather were asking for an injunction against a state law that systematically denies just compensation for the taking so in other words county council so this is your theory that is the taking and you're not trying to enjoy that you're just trying to enjoy the state budget item that's correct your honor ok but then why are you suing virginia if the federal government and how the federal a federal statute why does virginia it just seems to me like you might be suing the wrong defendant you can't kind of mix and match your sovereigns that way can you but i think in the medicaid in the medicaid context one call it mixing and matching but compensation and when the patient who is receiving the end emtala mandated care is covered by medicaid that compensation is determined and provided through a program through to the medicaid program itself which is administered jointly by state and federal authorities i would add that the money behind the folks in the federal government and say that your joint operation with virginia isn't giving us back what you took from up with them i just and it seems like the th circuit addressed this in that baker case and they said you can't do that if you're it the federal government or there i think it's a government that is requiring the care you can't sue the other sovereign for failure to provide the just compensation well what i would say here on is that medicaid is really the quintessential example of cooperate of federalism it is a program that is administered by both state and federal authorities working together i think you have you both very even better all money involved there are correct that is true your honor a majority of the money used to fund virginia's medicaid program is federal money but it it directly state structures to save state money and to same state and federal money yes yes your honor to save to save money from the for the medicaid program in  to override certain vetoes that had taken place but the legislature undertook an emergency budget measure that included the budget items at that time ok but now they required diagnosis rather rather than what's what's the term when they go in the other term terms it's symptoms versus diagnosis symptoms versus diagnosis and if you say the federal code requires them to be judged on the symptoms now the state law says a committee on the diagnosis which means they can pay less that is true your honor if my wife thinks i'm having a heart attack and then dragged me down there ladies i don't have a heart presentations that aren't truly emergencies what it's doing instead is making a policy judgment that some emergency conditions really are preventable and would be better treated earlier on with preventive emergency room patients is whether or not it would be preferable that the condition were avoided with preventive care once an individual presents in the emergency room doctor and hospital are bound to provide the emergency care  and so this isn't to circumcise they're also bound but there are so they're also bound by better law to make a record reflect correctly what they're opposed to with black well that's exactly right and that's that's precisely what's your honor that's that's a point that you made in our reply brief and i think the way that the state is approaching its description of the way this program works is exactly that and of course if if that's what we're going on and there were false occasional records going on we wouldn't be here soon to defend the conduct of our of our doctors and hospitals but i do want to be sure to come back if i may to judge harris's question because i think it's an important one in the context of a joint program like this really the question is who bears the responsibility to furnish just compensation the fact that this is a joint program doesn't absolve the  does seem to me like this is sort of an issue for your case the two different entities here and i don't see any of this in your complaint i think that the district court bought and i understand why the district court thought this based on your complaint that you were saying that the taking was affected by these rigs in your reimbursement rates that you had an investment back expectation that gave rise to a property interest in the reimbursement rates themselves and then the district court judge said when you can't enjoin that as we all agree you can't enjoying the taking itself so you can't get an injunction and i don't really see the part in your complaint where you explain all of this no no emtala is the taking that's not trying to enjoin that we're trying to enjoin the state of virginia for not reimbursing us or compensating up for the taking that has been affection weighted by the federal government and that might sound weird district court but let me explain to you why in the context of this joint partnership we actually have the right defended and cites it was raised both in the briefing on the preliminary injunction and in the motion to dismiss and it was the topic of extensive discussion of the oral argument so there's no question this is the theory that was before the judge we made very very clear that our position was not that we had a property right now reimbursements ourselves our position was consistent with the th circuit's decision in sierra medical that our property right is the right in taking in effect level for services but reimbursing only that portion that corresponds with a much much less intensive level one service you know level four services would include presentations like heart failure or blood in the urine severe acute asthma these are all serious conditions requiring significant professional time testing scalpel i'm looking at your grief which explains that the budget i didn't have the character of an unconstitutional the earlier briefing was a little bit imprecise at times in describing what was the taking and what was the denial of just compensation and you know candidly it's because the many of the cases themselves often allied those two elements and that's why i started out with i do along the same lines want to be clear that we stipulate for purposes of this lawsuit that the standard reimbursement rates set by the mass for particular services represent just compensation this case is not about  just below cost reimbursements and d m s really can't disagree with this position because of course they're the ones who set the standard rates and determine that those rates are sufficient and reasonable to reimburse the service legally mandated care it must actually give that level of compensation it can't pretend counter factually that the services furnished were different that they were less complex or less expensive  must insure quote shall require coverage for emergency services where in turn emergency services is defined to mean the services needed to evaluate and stabilize an emergency medical condition which in turn is defined according to the prudent layperson standard which is your honor mentioned earlier is defined entirely based on presenting symptoms and not diagnoses and so your and your claim and that we're here in the legislature i'd i wouldn't say that it's a claim that arises under the supremacy clause of it's it implicates a supremacy clause in the sense that any preemption claiming ultimately turns conceptually on of the supremacy clause but i think after property and improvements and i think also from the taking of professional services you know if a physician sells her knowledge and skill and time just like a manufacturer sells widgets it would be a per is announce that going forward for treatments that take place after july st two thousand and twenty virgin u s department of medical assistance services team asked will reimburse certain emergency room services differently under medicaid and w reimburse differently certain hospital readmissions that is if someone with conjunctive vitus walks into the emergency room and receives an m r i a c t scan and sees five different experts and the hospital bills this out for level for reimbursement under medicaid the hospital will receive level one reimbursement so virginia has not announced that it will decline medicaid reimbursement altogether nor has it impacted any retroactive policy it simply announced that it will reimburse services and twenty at a different medicaid rate nd this is not about denying any one service or falsifying any records it is about better matching the reimbursement to meeting a patient's actual need no one is being turned away from treatment and standard of care still assure that people with emergency needs receive emergency care this program is simply about assuring that people who are better treated outside the emergency setting receive the more appropriate treatment such as a primary care provider finally even if we are wrong about all of this the trade associations have the recourse that congress created for them if c m s the federal agency tasked by congress to administer medicaid concludes that we are wrong it can deny the proposed amendments to virginia state plan and if the state still does not comply the h h s secretary can withhold medicaid funding i the amendments to bridge in your state plan then the trade associations who dissipates disagree with c m s its conclusion they have recourse under the a p a as the supreme court explained in douglas all parties to this case recognize that there is a problem with overutilization of emergency rooms they merely disagree about the right policy for addressing that problem but the takings clause is not a vehicle for private litigation over health care policy delving into the takings clause the framing of the trade associations kids is premised on a fundamental misunderstanding of the takings clause and how it works unlike the due process or equal protection clause as the takings clause does not protect people against certain activity that is it does not protect people against taking at sao it simply entitle certain people to just compensation for it taking that is why in general claims for injunctive relief are not properly bought as takings claims the appropriate relief be you know there has to be a right established you know to give it to set the stage for the cause of action here and for all the reasons we lay out and are briefed that's not the case but i think you know c m s is the entity tasked by reaching the merits of the preemption claim we should hold the in abeyance that it out the district court are you saying it's not right or just that we could decide it but we shouldn't i don't quite understand what you wanted to do with this pending c m s approval affect the one july is presently pending before the c m s that's primary on our why don't you all wait until they decide it we would be certainly fine with waiting until until that decided you certainly agree to to hold the case in advance but the way you're applying your changes effective one july two thousand and one and so you've been they've been a fact for eight months that's what that's what the other should be getting paid because you all are applying this down coding provision for example they have and that's costing them that's ted actually taking of their earnings and not and that has appealed to me mean i remember when we had a problem in west virginia when i used to when i was a lawyer years and years ago they had a we had a system and i will charge you for this time for less than the day we had a system where they paid court appointed lawyer fifty dollars for a felony case period if you went to trial for a week or two weeks you got to fifty dollars and a lot did it everybody had to take the appointment so we got fifty dollars their supreme court of west virginia ruled in favor of a challenge that as bhalo did the taking won't charge you for that time but is that that that c m s does not have to approve the plan in order for it to take effect and i think the court looks at the at the analysis in the douglas case that highlights precisely how these sorts of planned amendments take place  and i apologize to the court but judge harris i do not recall your precise question to answer with on it fine but can i ask you to go back on the speaking thing so i as i understand your provision denied just compensation and so that's what we would like to enjoy and there's nothing you never any other case that says we can't enjoy that so why would that not right i think that's not right the taking has caused does not protect people against certain activity and that it does not protect them against the taking itself it's simple entitled and simply entitles them to just compensation and the supreme court did nothing in nick to displace the longstanding rule that the determination of what constitutes just compensation should be made by the sovereign who an act of the taking or st place is so so it's both a question of you know the proper place and federal courts are not the proper place but nick was also clear that as long as just compensation remedies are available injunctive relief will be foreclosed so i think i think that idea of an injunction a injunction in the context of the taking it sells at is simply a mismatch here but even indulging in their takings theory that trade associations framing of the key is is fatally flawed st it's well established that the trade associations cannot promise a teachings claim voluntary participation in a federal  patients who walk through the door but there is a well established body of cases that show that that participation in these programs as voluntary and that and to do you cannot promise the teachings claim based on voluntary participation  medicaid and medicare and we go through those pieces in detail in our briefs i think that the nd i think another point problem with the sticking series raised by my friend on the other sides is that they offer no principled reason for why the prior reimbursement rates for not taking but these reimbursement rates are they claim that the reason the challenge traits are not just compensation is because the holy ground because you're down coding that's what they say are you if you have to down bears noting precisely what the critical a person standard is your honor it's such that a prudent lay person could reasonably expect the absence of immediate medical attention to result in death or serious bodily injury without immediate medical attention and the list that's at issue here is a list of diagnoses that do not present these sorts of problems that's the that's the evaluation that took place and that how this list this list was compiled this is a list of conditions that do not merit this sort of high level emergency treatment and i think an example helps out somebody preventing with conjunctive bias certainly there it's appropriate to you know certainly it's immediate medical attention that might result in serious death and death or serious bodily injury but again i think to the extent there is a policy dispute about whether the the list is is is the right list whether there's an entry on there that should be in there that shouldn't be congress to do and c m s is doing back what's being asked in its litigations for a federal court to jump in and sidestep that and i think for all the concerns that are laid out in the douglas case that's just not the right approach in this case if the trade associations i ask you is sort of a slightly afield question  i'm sorry the district court dismissed all of these claims the preemption claim and the takings claim as a matter of standing and i think they got this theory from your motion that because the plaintiffs can't win on these claims they can't get an injunction to enjoin the taking and there's no one forcible right for which they would have a cause of action under nine hundred and eighty three dollars for their preemption claim that therefore their injuries are not redress the bill and there's no standing is that the is that the theory that you're advancing in front of us that the plaintiffs don't have standing because they lose on the merits of their claim i don't understand that i think that certainly the way that the district court understood that he panicked and understood that the way you argued to the district court to in fairness that's where the district court got the i d s and so can you explain to me what i mean is that i guess i don't mean to put you on the spot is that is that what you would like us to hold that there is no standing in this case because there is no injunction available to stop the taking and also because there's no enforceable right the part of providers under section you to so that it follows from that that they don't have know highlight before my time and about the problem with the trade associations theory and just that they offer no principled a way to justify why a reason for this to be a taking but why other reimbursement the pyre reimbursements regime would not be a taking they take as a given for purposes of this case that the prior rates are not are not provided just compensation but they provide no  penny for penny compensation for the professional time facility supplies and wages actually provide it to patients this case is really about health care policy not the taking process and the trade associations effort to fashion a case to avoid we well i'll just very quickly read this is me talking now it says i understand the state to characterize our position as the view that we have earned these reimbursements the state is taking them away and that violates the taking let me be crystal clear that is not our theory our theory is that the taking is the mandatory provision under emtala of emergency screening services in the emergency department these hospitals and doctors are required by law to use their professional services and medical supplies and equipment to treat these individuals they have no choice that is the taking i would point your honor also to the very st sentence in our  reply brief in support of the motion for a preliminary injunction this is docket sixteen where it says virginia hospitals and physicians have a property interest in their label or labor supplies and facilities and they are compelled by emtala to provide their services and supplies for public use and the budget items deny them just compensation for that too so that's our theory through and through it has been from the beginning judge harris you asked the question of my friend on the other side whether nick really applies here and given that the injunction that we're asking for is not an injunction against the taking itself the answer is nic can't possibly apply here because really what it confirms is all we're entitled to  under the th amendment is just compensation the budget items here systematically on an ongoing basis are denying us just compensation and therefore as i started out saying at the very beginning the injunction we're asking for here operates at the  and the th circuit there said we do not read williamson county to require a resort to state court when state law unequivocally denies just compensation the court went on to say that in that circumstance quote plaintiffs are entitled to perspective circuit clued in baker county and st medical indicating that participation in medicare is voluntary and therefore that this can't be a compelled taking but on that front i would i would note that those cases didn't involve a certificate of need program like virginia which mandate participation in medicare medicaid and they didn't involve allegations and evidence like we have here at paragraph seventy four dollars of the complaint indicating straightforwardly that seventy four percent of general acute care hospitals in virginia are nonprofit and public and must participate in medicare so baker county and st medical are are simply distinguishable on that basis but then of course besides that those cases predate the supreme court's decision in horn and i'm going to say also the mass has to be the right defendant in this case and that's for two reasons the st is the injunction that we request in this case would be an injunction that runs against the mass the injunction would say simply you may not enforce the budget items it would be very unusual i think to sue federal agency on the ground that a state agency is following state law in a way that violates the ticket laws so i don't think that that's for anyone to see and that is the end that approves these budget items then you would sue the federal government and say you can't approve these budget items you have you federal government has taken mean that's your whole point it's a partnership though go after the federal government so that things that thank you judge here is i think the concern with that approach is exactly what judge king was teasing out that process will take many years as the douglas case itself shows many years to work itself out of that but that's what the court does allow it nick you have to wait until you've been denied the just compensation and then then you'll get it back well but our point is that we're being denied fifty in the meanwhile which we obviously would be happy to have camp look at let me i don't know does king have a question this is my last question so i mean i can take i understand your argument i think i don't think the district court ever addressed it and whether the district court have or not i guess we can sort of figure out separately but the district court didn't understand your argument as you are now phrasing it on appeal they just the district court says what you're alleging that the down coding provision itself constitutes the taking that can't be enjoined on moving on if we were to think that under your new theory an injunction would be available wouldn't we send this back to the district court unless they did many maybe the district court could consider in the st instance your theory that an injunction is available because you're not actually trying to enjoin the taking because the taking was emtala maybe that it's reported consider that theory in the st instance or maybe if we want to consider it and say ok ok an injunction is available wouldn't we go send it back to the district court to see if there has been a taking particularly in light of the fact that your theory of the taking also has changed since the district court in the district court you argue this was a taking underpinned central just a plain old regulatory taking now you're arguing it's a per se regulatory taking risk is that ok good so shouldn't we let the district court look at some of these new arguments st well i would i would say your honor on the whole i don't think it's a new theory again  shoot well if you didn't your honor and we would we would be happy for the court to reverse the district court on those grounds explain that nic doesn't apply in these circumstances send it back to the district court to consider whether plenary injunction is appropriate the relief that we seek is an injunction against a systematic denial of just compensation and not an injunction against the taking itself i think that's all the court has to say and in doing so w unconstitutional way it's the one that saying if you don't like giving uncompensated care to medicaid beneficiaries it's on you to disenroll from medicare or close you are and in that sense we think really the certainly the reasoning of horn applies here as to the mass and it's the appropriate defendant and certainly also there is a principled way to differentiate this case from general complaints about below cost reimbursements because as the court in hor itself said the constitution is concerned with means as well as it happens and here for all the reasons we've given we think the down coding provisions are both preempted by u two and working on constitutional taking in u s courts reverse