one seven days four three zero one and yet carpenter barker versus ohio department of medicaid at all or argument fifteen minutes per side mr webster for the  at have led to us being here today we essentially challenge the state's use of the annual assessment process seven times in the past seven years to consistently propose to reduce the private duty nursing or p d and services that they get is required in order to sustain her life the interesting aspect of that is from two thousand and twelve to two thousand and thirteen the  this assessment tool produced are a proposed reduction from one hundred twenty six to fifty six hours and more recently from one hundred twenty eight hours to zero using the same tool  would appear to be somewhat in fluctuation six of these matters while all seven were appealed the decision is also been repealed one of the first ended up in court and resulted in a settlement agreement interestingly when the other six were presented on appeal to the state agencies hearing officer they decided that the agency was incorrect most recently in twenty seventeen the decision was made in two thousand and eighteen we've not seen an assessment done in spite of the regulation that it be done on an annual basis so that sort of raises for me the question of whether whether the appropriate remedy for adverse determinations is really going through the normal appeal process which is an administrative process within the state and then going to the state courts and you know what makes this case different from a normal individual  denial of benefits kind of case that that would go through those standard processes and i think it's a very fair question and kind of gets to the to the root of the issue  and in spite of the initial prognosis that she would not live beyond two years she's now thirty one years old her condition has never changed and will never change except that it will perpetually decline yet we find the state taking exactly the opposite position using this process and it is in the point of at the point it becomes that you get a decision that the state from the owns from its own agency  people that the state adopt an exception and then a week later they turn around and propose to reduce the services again and the cycle starts all over again and you win that appeal and then the state a week or a month later proposes to go right back where they were they refuse to abide by their process and the decisions that they make consistently year after year after year at that point it becomes discrimination but are there hearings  since birth right up to this day has treated her since birth so in terms of the deference that the lower court found in giving to the administrative agency seems contrary excuse me to own stead so so if i can understand that if if we were concerned about any and every individual who does not get the benefits that they think they deserve filing an almost dead type of loss your answer is no that's not going to happen because what we have to take into account here is the track record of the state here continue it's an annual review that they mandate in the state but each time they're trying to reduce the benefits where the record is that she has been stable or declined not gotten better and so at some point for an individual there comes to be an almost dead problem that they can sue on in federal court citing instead yeah but we but for the first year there wouldn't have been an almost problem i don't think so  here when you propose to reduce the p d in the price of the duty nursing services to zero which was the most recent one clearly since they waived the fundamental longer ration defends the only place that it's possible for a receive that level and scope of services is an institution and we know that owns to says no we know that the department of justice is regulations say the least restrictive environment so with that point there is actionable discrimination it's interesting to me that the trial court ignored on stead's mandate that there is no comparative class review or comparison class he noted there was no comparison class offered well we're not required to own stead very clearly the supreme court rejected the idea with the statement the states argument in the homestead was that there was no discrimination by reason of disability because there was no comparison class identified with preferential treatment in one sentence the supreme court said we're satisfied that congress had a more comprehensive view of the concept of discrimination advanced in the a to get in the a us five ninety nine so it just outright said no that doesn't work but interestingly in the judge's decision that page fifteen while that opening up that we didn't offer a comparison class the judge not is that not identifying a comparison class that the court at the beginning of its opinion faulted us for not providing a comparison class the judge stated there is one and quite clearly there is but the point is the supreme court said that's not required what is required and i think it's in the majority opinion in a home stead but in addition justice kennedy with briar concurring said the opinion of a responsible treating physician in determining the appropriate conditions for treatment ought to be given the greatest of deference that would be neurologist not the physician scuse me that the department utilized who has never seen megan and has never treated megan that's not the majority opinion in that case no the majority opinion states the state may rely on the reasonable assessment of its own professionals at the page six of three but interestingly in almost dead the treating professionals were state employees she was beamed the two defendants in the room stepper being treated in a state institution so there her both of the ladies treating professionals were state employees in our case the treating professional  medicaid program the program is administered by private practitioners and under federal law i can't even decide off the top of my head there is free choice of provider only somebody has medicaid provider agreement it's the beneficiary of the recipient the chooses who that's to be that's the treating professional who has never wavered and has never varied from is a requirement that the private duty nursing aspect is a critical component the state has been dismissive as well as the lower court in defining this as a case about seizures when you look at the record  her terribly terrible shape and there's no birds there she is in terrible condition her head no question there's no question but interestingly the continued reference to seizures seizures seizures is all  it presents itself here as a symptom of mitochondrial and stuff a lot with e that is not the condition that this issue that we're revolving about an appeal the state minimizes that as it's w seizure activity it really isn't and since she is incapable of speaking the reason you have a requirement for a private duty nurse is really quite simple anybody can pop a pill in someone's mouth and after be administration of has there been an adverse reaction in this case in particular the nurses and testified why affidavit that often you have to look at her eye movements because she can't speak so you need a trained professional so look can observe it what how was she presenting to determine what type of seizure is she having and posted ministration did it work it's not like you can look and say well megan how  practice act prohibits it so it because of the type of medications and the requirement that the medication dosages be mixed and then there be an exercise of professional nursing judgment to determine the p r in aspect well state law prohibits a minute on nurse from exercising nursing judgement and specifically prohibits if the physicians order is written to state that skilled nursing judgement is required state law prohibits an untrained medication aid which are present in the medicaid program system of delivery of services prohibits them from medication the state continually proposes that that they can use these aids but in point of fact under their regulations for medicaid it permits it but under the regulations and the statutes under the nurse practice act those age of prohibited from administering these types of medications and my understanding of the record correct me if i were is that she is in the workshop tops typesetting for forty hours a week terms of what she receives and put her needs are i think it's really quite simple but when we look at a proposal that obviously the states intention is to reduce the zip of these to zero in point of fact  they're proposing institutionalization of them stayed in the department of justice regulations are quite clear institutionalization is discrimination when there is a knock on the an alternative and by their waiver of the fundamental program defense clearly she can receive these services where she is and she's entitled to do that and to propose otherwise is to discriminate i think we have to make that inference because their position is the same on every annual review yes that so we infer their intent to institutionalize or from their consistency of positions that we get seven times row it has been to take it away when her condition is the exact opposite of what would support that conclusion and in point of fact she will never case that or the other part of that i think was that requires an individualized assessment i thought you argued that as well but appears to me like there is an individual assessment you just disagree with well it's an individual assessment but there's no written nothing rational that supports these the results of the  nothing supports that shows the d if she gets better all right so it is an individual assessment that's not rational would be a homestead violation yes because the only source left is is institutionalization and that's prohibited thank court my name is katherine bach prater for the department of medicaid and its director i first want to point out it is absolutely not true that the nursing that the nurse practice act prohibits certify medication is from prescribing the medication here in the legislature created this provision they directed several agencies including the nursing board and the department of disability to get together and develop rules to allow these sort of five medicaid medication it's a practice they need those rules also to offset that forth and the nursing boards rules specifically have an exemption for these types of people in a in a d v d so you're saying that your opponent there's a mistake and when he says that other people which relates to the regulations here which allow the certified medication aides to provide this to provide this service and those those require they have specific training they must pass examinations and they can never administer any medication an individual and leslie this receive specific training on that individual so no one would be allowed to administer medications to megan unless they were trained on megan what are the orders for her what are her seizures look like how does she respond to medication what you need t for after you receive that medication they would never be able to do that until someone trained them specifically has to have her been so trained the hours have never been reduced so currently she i do not have that exact site but it would cite to the department of developmental disability in the exception and here again you're talking about orders that are for a particular dose for particular medication in a particular time order or time interval what about your opponents argument that you have to know about the i movement and be able to adjust accordingly well as you indicated these certified aides would not be allowed they would be trained in that they would be trained to look for i twitches to look for eye movement look for other types of muscle twitches to show that myoclonic activity so they would have to be trained on that specifically for  and again the legislature the nursing board the department they'll have developed abilities disabilities have all determined in the rules that it is appropriate and this happens every day in ohio that these types of aides give this type of medication to people with with similar conditions and there's no discretion there and there's an even if regardless of whether it's a nurse or an aide neither one of those practitioners can modify the physician's orders so if a nurse thinks for some reason there might be an they would have to receive that training before they could provide the medications on on her her specific symptoms and the twenty fourteen minutes rated appeal decision held that o d m could reduce its hours only when only after the aides are trained in a place and a podium of course has no problem with that that was never the intention to leave her without supervision to leave her without care for any part of that time and simply to replace it with different play some of that time with different partition years so going back to the initial set of questions i was asking your opponent why shouldn't there be an ability of someone an individual to bring i step based claim based on repetitive denial of benefits on the theory that it's not just a one time thing but it is an effort showed an objectively for  the medicaid state to force the person into a less costly institutionalization rather than the more costly well there's no almost a case that has ever held that repetitive decisions he will discrimination and to be clear in the cases the administrative appeal cases that make it did bring between two thousand lebanon two thousand and fourteen those cases were remanded back because of concerns about whether the aides were actually authorized to put on the minister these types of medications whether they were trained whether the county would allow it so those were all remains to gather more information there was never a finding that this is absolutely a bad decision that should not be allowed questions as a matter of law if a state were repeatedly denying people daily nursing and the only place that that person could get adequate treatment would be that  institution why wouldn't that be the guts of an almost a claim that then we could you know say what we need to develop the evidence and we'll see whether or not it was really just being denied because of a lack of proof by the patient of appropriate nursing care or some other reason as opposed to a discrimination and avoidance of the mandate deal institutionalize people well to nial does not equal discrimination there are many objective reasons and many objective considerations that took into account when it decided this and they didn't decide this for a group of people they decided it for megan there's no there's no claim that there's no  does provide continuous p d n to some patients in ohio who have seizure disorders it's simply they've simply denied it for megan because of their considerations of the frequency of the seizures the type of treatment that she receives for them those are certainly reasonable bases that don't constitute a discriminatory reason it did that change year by year i mean it bothers me that maybe its condition has deteriorated throughout this period and but but your client continues every every after every annual review they deny it again and they appeal the next one i mean is there something of megan's condition that changes year by year so you said there could be objective factors that support the denial what objective change from year to year with megan's condition well first of all that the decisions they didn't did the the state is required to do and you were i know that  then when you do it and you deny it again with accepting the prior determination and i can understand that you do it and it will view but what they want us to infer a motive to institutionalize or because there's no reason to have a different decision year after year after year and tell me what what is the difference in the decisions aren't different there was the same attempt and as i said that the decisions that they prevailed on were not that it was inappropriate decision but merely that they need to be remanded together for their information and that's what happened so they attempted to go back get that information from the county show the law to the hearings in or to explain and eventually in twenty fourteen the ministry of appeal decision agreed that it was the that it was legal that it was authorized that the county would assist with finding these people for farming again and what they also that was that that was the ministry of appeal decision but essentially it seems that it's feeding into your opponent's argument that really every year the state is trying again to get it together to limit her hours and yet her condition is not improving it's getting worse and i think the one of the issues to going way back in time these are ours didn't used to be required to be prior authorized they were usually generally granted and the testimony of nurse hanson was that when she started there was only one nurse for the entire state of ohio that reviewed these p d and claims so you can imagine they probably were not very thoroughly reviewed when that started to happen and there were people who could appreciate that it was determined that most of the one point founded and o d m also had the position that because she had been used the family had been used to receiving one hundred twenty hours they would not they would reduce it gradually so the family could just this new situation and gain a comfort level with that without going from one twenty eight to zero so that was why the reduction happened at various points but it actually never got reduced because of all those days that were place while she's appealing those hours can be state and not reduced and that's what  answer my question why should we not draw a reasonable inference that the repetitive to the morals is motivated by your desire to institutional it rick because you can see that the o d m reviewed hundreds of pages of attorneys said there is a lot of objective evidence that o d m looked at that goes to the fact that she does not necessarily need one hundred twenty eight hours of constant nursing services and she in fact the record shows does not receive those she is in forty hours at the lodge and she has times at home or she does not have a nurse available so it was just decided on summary judgment care if yes so why isn't there at least a fact question that would warrant a trial to decide whether or not the inference that the purpose was institutionalization is what wrecked and there is a fact to dispute as to whether as to whether these are medically necessary obviously the parties disagree about that and if she had appealed that to a state court and that would have been the issue that she could have argued but she has chosen to bring a federal lawsuit based on discrimination and in order to defeat summary judgment she was required to come forward with some evidence of discrimination  that individualized determination of need constitutes discrimination the district court pointed to what has to be in your view it has to be class based it can't be an individual determination of need where they're looking at what could it be then well the district court pointed out that all the cases that he cited involved a categorical distinction that relates to the difference between home care and institutional care so for example in fisher the state had a policy of  approving or they authorized unlimited prescriptions in an institution but only five prescriptions and home care they didn't make any determination in fact they never made a determination the plaintiff only needed five prescriptions they suppose suppose that i'm making up something at the spur of the moment but suppose that o d m decided that we're not going to provide a ventilator to a particular person in the home because it is too hard for everybody but will provide a ventilator in institution with that it's an individual decision would that be something that would trigger an arms to review it might be but that's not what occurred here  doesn't she does not these services on authorized no matter what location she is and she does not require p t and one hundred twenty hours of p t and services regardless of where she is what does she get in the forty hours in the workshop  there isn't a nurse on site but it is not a one on one nurse that catered to her so that's that's in fact one of the benefit so called benefits of institutionalization is that you get a share of the staff over a group of podium is proposed for her are not just available in the home they're also available in other d m d d type the syllabus that might compare to a nursing home but they don't have nurses there either they have sort of my medication so they're not making a distinction between home versus other types of the sillies what does a certified medication do other than give medication to a person you know depending on their certification level there are two different levels they can the row six per round x x close it finishes with what a limitation list to p r n medication which is the as needed the determination unless the order is written with specific parameters which preclude independent judge but every order written for administration of medications to megan has consistently throughout her entire life required and then within the context of that so these medication aids can not provide medications to her and for the department advocate that well there's not really a lot of difference with the real difference is when we look at the justice department at twenty eight c f r thirty five point one thirty da agency shall administer services in the most integrated setting appropriate to needs that's where she is she's in home but when i look at ohms dad it's not a class action two people two residents of a state institution in pennsylvania filed a lawsuit the supreme court said they present a viable claims trying to get out of the state institution and because it was that the discrimination results d that the supreme court reviewed and the danger of saying that it can only be in a class or a broad based so if i only deny her her constitutional rights that's ok and the court won't hear it and if i hadn't been the next morning i deny her constitutional right you won't hear it because it's doing it's happening one by one when you look at it in the constitution and in the statutes it's person a person is entitled that's what makes this place great it's what it's what this republic was founded on i have rights there's nothing that requires this and i think i don't think that's what the lower court was trying to say when he said we didn't identify the comparison klaus i think what he was trying to get to was something else i'm not sure exactly what it was and it when you first read it it's like well if it can only be a class action well if i'm the only plaintiff and or if i file a class action my claims have to be typical of the whole class and the relief is accorded to me and that benefit is then extended to the class it's still an individual action i have to prove to pick out money that's the nature of rule twenty three i mean that this thing that it has to that it can only be a class is just wrong thinking