answer is when the legislature uses precise language focusing on the individual in whom the right is created here forty two united states code section thirteen ninety six and a thirty eight does not program to guard against unnecessary utilization of their business and to balance the an economy against quality of care and to ensure access i'd like to address three issues today honour's private right of action why section thirty eight does not contain the requisite language supreme court precedent congressional intent and the texan structure of the statute all concrete lead to the conclusion that the event distinguish the orthopedic case from applying here lastly i'd like to address the lack of evidence below to support irreparable harm in terms of quality and access to services structure of section thirty eight we must we must consider the direction that the supreme court gave that it is not right that it is right excuse me not benefits or merely interest government of rights privileges or immunities secured by the constitution and laws of the united states accordingly rights not the broader or bigger benefits or interests that may be enforced under the authority of that section counter let's get  sections and essentially being probed essentially guiding the court him to conclude that the fact that the language appears in the state plan should not strike that let me go in quote his language from his decision he speaks of thirteen twenty eight ash two as indicating the provisions inclusion as a requirement of the state plan that congress in thirteen twenty eight ash two and thirteen twenty thing that a dash two and a dash ten does with respect to whether a right interpret whether a right exists is it a state that they plan on it's own the fact that the languages including in state plan and eleven twenty three and i thank you furthermore the another point where judge levy went wrong if you will is relying on certain legislative history includes specific reference to providers costs congress repealed that section in wilder hospitals and nursing facilities were deemed to have a private right of action under the born amendment that was establishing a cause of action for hospitals and nursing facilities relative to the adequacy of great congress expressed expressed gratian with courts implementing cost based standards in rate setting now of legislative history is incorrect he continues to legislative history set forth in the house of representatives report number ninety seven dash one now that legislative history does not relate to section thirty eight it is inappropriate we relied upon for purposes of interpretive thirty eight what that question relates to is the freedom of choice provision regarding the competitive arrangement for payment for laboratory services medical devices and drugs and in fact there was a legislative history in that section to relating to be moving in a straight of burdens and increasing flexibility for the state eight two and the ten directed the courts congress congress is saying there's just levy that in those two sections congress directed the courts to ignore when determining whether the the fact that it occurs in a state plan we cannot simply conclude that that doesn't create the private right of action the courts must go through the analysis so here in going through the analysis the text and structure of rocks that precise reasonable promptness is it your view then the judge will be overlooked that remedy no i and the problem is not arguing that judge leavy overlooked that remedy but that he placed to much weight upon the availability of a separately administrative remedy organs which created a union on how much it particular low income families could pay should have to pay for rent the language in that statute was no three and we shall pay focusing on the family focusing on the individual association and again looking at the individual language in the statute that particular piece wilder interpreted seaborne amendment and the born amendment unlike section th provide for payments through the use of rates that take into account providers to the commission of providers specific mention of cost and that are reasonable and adequate to meet the cost which must be incurred by each patient efficiently and requiring the submission of cost reports to the state the filing of cost reports indicate that congress was specifically intending that providers cost be intended how ever very the regulation relates to a federal upper limit which goes back to the language of the statute which deals with unnecessary utilization protecting against unnecessary utilization that alan's in the interests of a enforce there are no implementing regulations that define what any fission provider in there are no implementing regulations indicating what amount of providers harsh to be reimbursed noncompliance is not an action such as this the proper remedy is for the federal government to terminate fund here that is the proper remedy the system is so that the state planned its needed to the secretary of health and human services institution code one four one zero five one thousand was repealed in august what effect does that have in this case it only had the very limited in fact relating to pharmacy reimbursement because authority that was not cited by either party in the sanchez turning specifically or you know what i want to be sure that we know the whole universe out there before we go take the case under so well you certainly will have the benefit of that entire universe quoted from the african decision there is a nother decision that is referenced burlington united method you want to read excuse me i'm on page twenty nine and thirty and the quote is on my page thirty from the african reconsider site it's in the appendix at five sixty nine five seventy it's the actual slip opinion or order i believe in our pending cited will find it that's fine thanks in case and they and they do cite this additional decision of the united ruling of evergreen presbyterian ministries the hood which was specifically focused on a thirty eight was the entire case holding specifically that beneficiaries have a title meant to enforce the equal access aberration that falls outside this string i think it's it is defective in its reliance on the fact that the structure of the medicaid act in the state plan requirements somehow means individualised in section thirteen ninety six as part of the plan are therefore not enforceable by individual plaintiffs i think that that discussion and that analysis is difficult if not impossible to square with the fact that in  nine when the language in thirty a was codified they specifically codified a regulation that already existed and so in answer to your honor's question what's kind of the overall scheme that's going on here down across the board provider reimbursement rates with the resolving a fact that accessed at that point in time was limited in a way the congress felt was inconsistent with its intent had there not been an intention creating for ci rights in beneficiaries to enforce the equal access requirement they would not have needed to enact the one nine hundred eighty nine amendments which were designed expressly to give them that right and congress could have been a little more  met it could have been more specific in the house report there's a very specific discussion of how the access criteria is to be measured and specific lee referenced to in the ensure population is specifically referenced to the number of positions per capita in the geographic area of coverage i'm talking about language which would have said here there is here by created a private right of action in the recipients to enforce the provisions of the rest of the stature they could have said that certainly certainly had past thirty five forty years it is very clear that congress understood the act to be enforceable again one wonders why the one nine hundred ninety four amendments would have been necessary to thirteen twenty eight  itself on behalf of providers so i think congress is understanding it had to be based on the decisions as they existed in the supreme court at that time and you know we recognize that the supreme know in the context of things dog that was an arguably necessary however on that occasion that supreme court cited wilder as still viable law if you had occasion to reverse casting some doubt on all these prior decisions the reality is that there have been decisions in the first second third or fifth sixth seventh eighth and ninth circuit each one of them individually to make sure that they have a non aggregate focus but i think as s t v hood in the fifth circuit decision most recently concluded it's very difficult to see how the anything other than a individual eyes focused on the medicaid beneficiaries in title meant to a particular service and in our case eight particular access to that service because it's certainly not very viable to require the state to provide certain types of noted in our in our letter to the court just last week when we became aware of this decision a short ten days after it was issue measures described in v a when necessary for military purposes rather than merely having an aggregate focus the e p a s the chief provisions are concerned with whether the needs of a particular individual have it now for quite a while in terms of other cases but what's your personal or your say your your client's view our client's view is that the individual act in question must be first of all it's a matter of congressional intent i mean  underlying purpose of saga and all prior pronouncements it's it's it's not to make up the law but rather to discern whether congress truly intended that if the act be enforceable by private citizens who are intended beneficiaries cases and those were pennsylvania and the evergreen presbyterian church now those cases merely found that medicaid recipients are the do receive a benefit under the  is insufficient undergoing saga or creating private right of action indeed providers some level of benefit from section thirty eight tax payers themselves also reap the benefits but that is by itself insufficient and if this court compliance and allows the secretary of health and human services to enforce state's failure to comply with those medicaid provisions and with the assurances provided in the state plans and next year lawsuits brought under right to inforce spending clause statutes the appellee repeatedly referred to medicaid act as a whole but the supreme court noted for us to be  individuals finally a ten again has that same focus on all eligible individuals which section thirty eight does not and finally your honor although belated i do apologize section thirty eight was not addressed in the white case and i would i would advise the court to look carefully at the reasoning because the presenter pretty different provision in closing your honour's the preliminary injunction should be denied because the supreme court has dictated the congressional intent has indicated and the text and structure of section thirty eight dictate that there is no private enforceable right by medicaid recipients to enforce that section second i felt was not required to consider providers cost and we have set forth that argument in our briefs in setting rates because the foundation for the holding in orthopedic has been weakened by congress's intent in the same year that orthopedic was rendered it repealed the the bourne amendment and explicitly indicated that they wanted to stop and bar litigation operate and finally there is no evidence of lack of quality of care or access