good morning ladies and gentlemen our first case for this morning is time against  thank you your honor i'm very pleased the court as a result of the policy change at issue in these cases the named plaintiffs as well as hundreds of other persons have lost their ability to enjoy the benefits of community life their ability to go to the library or the park for the game or to go out to eat or to go shopping or to engage you know quiet range of other activities has been severely restricted in terms familiar under the a d n a they're no longer able to believe saw the state's brief interpreted amundson as precluding significant or at risk claims and if felt a need to weigh in on that issue the government has not expressed a  so i have a broad question for you your opponents understand your argument essentially to be one that a different package of services should be given to your clients whether your clients the individual crimes of the class let's not worry that for right now you are phrasing it quite that way you seem to be saying as i understand it that under the law  let me put it this way that there is nothing in any of the governing statutes or were regulations that limits the number of settings to simply to institutional scene one at home being another and that you're making a setting based argument which is a community setting may be you know an adult daycare center or a library or somehow or another something that gets people out of the house into the broader community some intermediate point i suppose  so is that a fair characterization of your argument because i would have great concerns if it was just about the package of services no your honor i think that's very true we've never disputed that the integration mandate concerns the setting in  which services are offered by the parties of all or all have obviously gone back and forth over whether there are circumstances in which the mandate can require state to provide additional services and we've disagreed on that but at least for the home based segregation the relief for seeking is exceedingly narrow i don't read the state's brief to dispute it that the mandate is implicated in cases such as the main case out of oregon where state chooses to offer services in a segregated setting but does not offer similar services in an integrated setting even when the actual residence does not change and viewed in that light our claim on the merits of at least again so far as our home base segregation thing is concerned is very simple as the state simply has no answer for the fact that it continues to provide services to the name plaintiffs and presumably the class in their homes and simply fails to offer a community based alternative so have they ever i mean is it your view that when they were when your clients were under this a and b waiver that they were getting at that time community based services or all these different programs your that the state has created and i'm not sure that the state can take too much shelter in that but in any event they were getting community based services in as far as you do does this record show that the community based services were i'll just say cost neutral that they weren't costing any more than any institutionalized services would have been cost neutrality for the and the way for agency has never taken the position that providing that to them cat cost scuse me cast cost neutrality in into doubt so let me ask you this with the anybody waiver in this state says look you know we've been using the a and b waiver but that's really only supposed to be for people who need nursing home level services this group of people are in the intermediate care of level where those terms defined and where you're to rehear clients are getting more than intermediate care level services under t your honor i'm not positive that there is a good definition of those terms of the state is taking the position that persons with intellectual disabilities can not meet can never meet a nursing facility level of care unless they also require the nursing assistance essentially that the type of commutes such as suctioning are oxygen and i don't know honestly honestly i do not know where that comes from how how does how does a court decide whether a particular level of participation in the community would be sufficient to how or how to be no sure your honor and i think that gets into the state's limited principles argument i think i think also which claims have to be evaluated through the three prong test of the  certainly certainly no one wants few people want to go into the community at two in the morning i think there are certainly circumstances where professionals might say you're you're not appropriate for that and beyond that the state can always say providing more community based care is going to create a fundamental alteration there or it cannot be reasonably accommodated the so that the guidance published by the d o j which which we cited to the court in this in the record indicates that the integration mandate mandates command means that persons must be offered access to community activities and opportunities at times frequencies and with persons of an individual shoestring so we've never disputed that the plaintiffs have some access to the community but the integration mandate says most it serves the fullest extent possible and no more than you and i would would be ok if we were only able to leave our houses for one or two days a week the family supports way for essential the caps and individual's personal here services at about twelve a kind of twelve hours a week that's giving the plaintiffs an opportunity to go out of the house two days out of every single weekend i think the command of own stead and of the a d a s is far more broad and that's what the sixteen thousand five hundred forty five dollars will do because the state says these prior authorization waivers take care services not waivers prior authorization services take care of the in home needs of the person and so sixteen thousand five forty five is left over from whatever you know which could include community based sure when you do the math that's approximately what the sixteen thousand come comes out to is about twelve hours a week  don't i don't think the state is suggesting that you simply keep a waiver provider on call for if you feel like going out in the queue to commute if the mood strikes you at two thirty on thursday obviously there are some very pragmatic problems with with saying you you only want to go out to the library or the tarc twelve hours a week because providers can't just finally in and out like that so what we have spend forty hours a week during normal times when people are out and about confined to their own homes receiving these home based services and i don't think the state can say under the integration mandate that even though you want to go out during these times we're going to limit you to this this home based type of care we agree that the integration mandate is about setting it's simply  the the elements of an at risk claim even if you're not immediately going to into an institutionalization the calls for instance of supposed suffer dangerous falls while unsupervised on the family supports coals their providers have been forced to expend the middle resources in order to ensure their continued supervision which that which the record reflects cannot be done forever i think the bottom line so far as our at risk claim is concerned is that the state made a determination when they were on the in the waiver that a certain amount of services was necessary in order for them to remain safely and securely in the community and i don't think the state can say at this point that that's a fair amount of services and we're talking about forty or forty percent cuts or something in that range is going to be it's going to satisfy the requirements even for an at risk now and that's because the india waiver covered up to a much higher level of services that's why i asked about what specifically do we know about the difference between nursing home level and intermediate level but you're saying i guess that you can somehow in this record dig into the services that these individual people were getting and say well you know this person needed suctioning or this person needed a wheelchair attendant or this person needed whatever else they were getting you your honor the state m point and in doing so they simply recite the types of services available in the different waiver programs as well as we noted in our briefing though the vast vast majority of persons and care versus attendant care which are defined in very very similar terms certainly we agree that there are some people who may have been receiving additional services through that and the waiver above that sixteen thousand dollars minute who are not in the plaintiff pass the state brings to mind the person who receives so many services because they needed a one time home modification that person very well very likely is not a class  member but for the vast majority of class members i think they're using this the same types of services which the before you leave the topic of the class the state argues and the district court found and i thought you know potentially rationally so that even in order to know who's in the class you have to have such a detailed assessment of each person each person its needs and the like that  recommended that and we did so in trying to determine the number of class members but we've recommended that the amount of services they receive through through the anti waiver be used as a guide post for determining their action on the user doesn't that take you away from what you were just saying that it was a setting based theory that you have because if we start toting up amounts of services i think you fall into the trap of of this simply being you know you needed a ride to the library and somebody to sit there with you twice a week and somebody else needs you know especially his wheelchair with a computer on it they've got c p or what have you your honor i don't think there's anything wrong with using a factual determination about what a person's needs as a shorthand for determining what per what person's actually need and they're going to be so different how do we have a class that us coherent if your honor if that's true there's no such thing as an on site class there's no such thing as as a class under the medicaid act and obviously that's not so what we have is the state imposed a generally a clickable policy in two thousand and eleven and that has undeniably been in force against hundreds of persons to the extent to the extent that we are looking at say that use of identifying cast members that's precisely think worry that this court rejected don't we didn't say we should do it if it's impossible either you know i mean there's there's a an overall inquiry in the supreme court has been telling us be careful about classes you your in your honor if when the state imposed this policy if it had kept a running tally of persons who were being cut off of the anti waiver which it did not do who it had determined really required more than that sixteen thousand dollar amount in services i don't think there would be any doubt that we could start with that tally as a determination as to who's in the class and i don't think twenty three a or or b two depends on the fact that the state did not bother to keep track of the persons that were affected in the same way by the policy that that in the post against the class itself i know you're in your rebuttal but i really  paid to provide him services through the ship waiver program is this a rule from the waiver pro preamp or from the provide or miss miss kempt provide services to her brother four days a week  of those days are home health services where it is the agency's rule that she can't go out with him a truth certainly there's nothing in the record beyond her saying that her employer won't let her take him out during the other days but says she can't take him out during that tom this is the state has said that this is a a provider issue i don't really have to disagree with that but so when other words are you saying that  provider can make such a rule without violating the integration mandate i don't know that the integration mandate of the law applies to the provider of service search certainly there are issues that will need to be addressed with that if if there's a baby and thank you thank you thank you your honor it may please the court mr rose mentioned something that i think helps to shed some light on where we think the flaws are here which is the idea that there needs to be more money provided in they were getting more under the  waiver budgets than they are now because there's no caps to the a m t waiver budgets and to reduce the amount of benefits somehow you know it causes an injury if that's the nature of the claim that really boils down to number one either a medical company of an adult attended they're either going to be in the company of an adult attended at home or they might be in the company of an adult attendant at some adult daycare center or a library or in the you know a park program or what have you so i don't understand if there's an integration mandate reminds me a little bit of the individuals with disabilities education act where we try to mainstream the children and we say you know don't isolate them off you know  specialized program why the dollars couldn't why one couldn't just say to the state you know make the dollars balance out you know give them enough money so that they can be exercising their rights in a community setting if that's what they want as opposed to functionally on house arrest which seems to be where they are now ok well you know i think that's not an accurate characterization they are getting out of course into the community under the current circumstances a little bit though i mean they're stuck there i have this image of them in some dark living room you know four days a week all day long and well jim you laid it in on cared for well let me make a couple of points one of which is that the entire idea behind the family supports waiver is that they are more appropriate in the home with the family supporting them and the other natural supports that they have as opposed to an ordinary sort of typical traditional institution so there  that and that's where i wondered why it is we have this binary thinking if the if the world is composed exclusively of a home and some institution obviously the state of indiana like most other states has said no we're going to get the waivers we're going to facilitate home based services but where does that binary structure come from why isn't a community based you know day care day day sort of service  third setting that's available well it is if there's a discrimination at issue so for example the sheltered workshop cases even the case where somebody was a student at lunch and they were required to go into a separate room as opposed to sitting with the other students those kinds of discriminations out in the community i think are cognized but not here where we have it sort of an endless search for more community as per the definition of the individual who you know the beneficiary  we know why is for eight hours a week sufficient why isn't it ten or twenty will each individual plaintiffs in all these cases would have some capacity to say no i want i want more i want to have in fact i need a bigger budget because the place where i can get the most community is farther away and to get there and to have more people around me in a bigger shopping mall as opposed to one that you know has fewer people in it to have that community setting i need more services there will be an instant with certainly ruled that out  you know just because you know you found something better doesn't mean that what you're being offered by the state isn't good and i don't think that applies here just as much i mean we have the determination that this is the most appropriate waiver and let me let's let's bear in mind to the extent walking i think you know and and that's what is worrisome for me well i think that the concern is that if we worry about a relative to where a person started to me implication is that any reduction services is essentially a violation of the integration mandate which again i think a month and such is not the way to look at the integration mandate there's interesting i think and we'll think about this is i'm not sure the indy waiver is of is a good place to start for any number of reasons with with plaintiffs claim i mean take the coals for example they their overall budgets now are bigger than they were under the waiver and what the point of say is they need more money now so isn't could one of the problems the fact that these prior authorization services are rigidly limited to the home of somebody really just had a budget call it i don't care what you want to call it twenty thousand dollars something twenty five thousand dollars and they could allocate those said no that is going to be in the home dollars that the state has that the state is spending art necessarily being used in the most integrated way possible well but i think what that leads to is the idea that everybody can essentially craft their own way for  that i've got this particular mix that i need and i don't fit within either traditional medicaid or fs or cia through the other so i need a particularly tailored you know waiver that specific to to what i do and that's not again what's required  integration and we have part of the reason that the focus tends to be on the big institutions versus the home as opposed to the home you know versus other community settings is that the historically the whole point was to get you know people into the home where their natural supports can be and we are achieving that systematically through a couple of different waivers and there have almost no institutions left well that's right that's right and that's i mean i think in many ways we can look at the integration mandate say gosh what an overwhelming success it has been in that regard different populations with different needs all of which enable many people to be at home as opposed to in a large institution so are you saying let me just get it  saying that  based services through the cia to aver or the fs flavor is that the true say well look i'm each wave or targeted to a different population me give you a case in point fs waiver is  community habilitation for example the idea that you can pick services as somebody on the fs waiver that will develop you as a person in the community which may not be suitable for somebody on the indie wave or recreational services music therapy services these are not available on the a m t where there are choices available under fs because it's a different population so there is a concern about a mismatch i think if we were to assume that somehow and indeed was ideal for all of these plaintiffs it wasn't so how did it implication of your argument to me is that if the state of indiana had you know three for whatever number of waiver programs and it defined each one of them in a way that does not allow integration into the community then that's just tough luck for the plaintiffs and i can't believe that that's legally correct given the a d a s integration mandates in state can't box itself into a corner with these waivers and just say well you know too bad we can't integrate people into the community we can't do this because we haven't created a waiver program that would allow it well i think the part of the understanding has been that that integration is being achieved when the person is in the home because of the natural supports and if the natural supports are not there to supplement both the waiver services and the traditional medicaid services then that situation may not be appropriate but but the idea that there are in the home is understood to be part of the integration now if that change that that is not the law it makes it very difficult to predict what it is exactly that the state is supposed to do what is an inappropriate waiver is it that we have to craft individual eyes to essentially waivers for everybody that comes along to maximize to the you know desired expectation what that community integration is going to look like but didn't you individualize anyway in that each person as i understand it gets a plan b somebody from the state some case manager sits down again a little bit like these individualized education plans but in this instance a plan so someone is sitting there saying you know you probably do need to stay in your living room all the time but person b is going to be able to benefit as you said you know maybe from the music therapy program or from one of these animal therapy programs or whatever there are all kinds of interesting programs out there so why isn't that exactly where the individual ization concern is fully addressed by the state systems it's not that there's no capacity to take account of individual circumstance surely no i mean right you of course we do but the point is that there are still constraints it's within reason it's within a range of permitted and agreed upon services levels approved  s so it's not that we if we take everybody and say you can have ever absolutely everything anything and everything you want of course not right because they're budgetary caps but that but the question is you know again at this total pool of money you're spending on any given person you are forbidding them from using some of those dollars for community based services first of all let's bear in mind that the reason that that restriction is there is it's federal regulations as well state regulation but these are medicaid traditional services are medically indicated and the restriction is when it's medically indicated it has to occur in the home with some other exceptions not a political here we are somewhat medically indicated but not at the skilled nursing level right right oh so i don't see why medically indicated has to mean that you can be out in the community and have an assistant there if you need to have you know your office suctioned out from time to time when i well but we're services are designed for people who are you know going to be getting making choices on the sort of the medicaid is meant to be a supplement it's meant to say look we now understand fs is not going to give you everything you need but here comes medicaid to supplement all of that and again it's i presupposition certainly is that being in the home as opposed to an institution is part of community integration if that changes if that goal post changes that makes it very difficult to understand what rule that state has to live by when trying to achieve community integration at the department of justice and you kind of brush this side of it even if it's need skidmore evaluation thinks that the integration mandate in something that can work with community based or not with respect to this idea of being institutionalized in the home they never staked out a position on that they only said should we ask well it might be interesting to know the answer  because i i think it's something that they didn't they knew that that issue was on the table and they didn't go down that road so i think perhaps that does reveal something but the you know they are there only point was look we don't think a months and should be read to say that you have to be in an institution as opposed to some significant risk not going to be ideal for everybody and that you know we we wish we could write but we have to have to live within restraints and we can't have a situation where everybody is allowed to come along and create their own essentially their own waiver program we do our best to fit them within the one that's the most  appropriate you know in the circumstances here with with mr maritz i mean i think if you had had perhaps a different service employer for for the sister that would allow more integration into the community with respect to mr back and even there is a choice being made there that you  sister we're not the service provider if in fact there was a choice that they could make to send mr back into an adult a service that would be more community integration these are all those in the state for a kidney but it's a person's i'm so afraid you to clear that no state dollars could be spent for outings outside of the home with with that violate integration and i think well i think what it sounds very extreme i think what i try to think about in all of this is is there is discrimination going on a but otherwise i don't think it would work but i don't think it's because the because it's been reduced to zero i think because at that point you can look at various service sectors that somebody could get for example an institution where they might have some ability to get  not going to provide every time and i'm willing to take my brother into the community adult day service they could get more time in the community so there are choices being made in the end i think the district court observed that that you know there's not only are these issues about where you know what's integration what's not but what's the precise number i think it's in the hundreds probably five hundred to below is i think the judge was not large and we're not about is these things go i wouldn't think but but yeah i mean it's and there's a you know a waiting list to get people from indiana and fs and we haven't just kicked everybody off that didn't qualify for n d there are things they should process they remain on e and d until a spot opens up on fs in our waiting list has now started off at eight thousand it's now down about two thousand and we're doing targeting three hundred a month to to make the transition so you know there's a system in place trying to take into account the needs of individuals so i was going to say as you do know an effective way to transport people to these community services because of all these they indeed people in that period before the policy change who somehow i don't know what if they had a van service or whatever they did they did something and they were out there in the community so there is an experience you'll base in the status as opposed to saying gee you know we don't know how they'd ever get out there i not no but i think again that you know we're talking about a population that in the estimation of the state and c m s both is well suited to a an array of services that will help them in ability to sense and it's not simply that there are that they can't get around or you know there's there's family supports to come in and help out with that and that's exactly what the state is supposed to take into account so there's a real suitability issue here that runs through all of this that i think that you know in the long run makes these this population better off under the family supports the state raises a factual this issue with respect to the calls that i do not lie just leaves hanging out there in raising this issue as it did in the briefing the state is relying on the amount of services actually used by the c it as opposed to the amount used or approved by the state during the one year immediately before their transition between waiver programs the facts are undisputed that during this time frame their provider was unable to adequately staff the hours there's no reason to it to think that that is still going on at this point and on top of that at the same time one of the brothers moved outside of the home to increase his independence so i  don't want to let that go on said the state spends a lot of time discussing the outer balance of argument in this case and i just i want to underscore one more time exactly how case i don't think there's a practical difference between that case and this case when you talk about home health services versus community based services the bottom line is that the core in reaching the decision that it did in own stead  d not institutionalization not in not as an end in itself but as a way to ensure that people have access to every day life activities and i'm quoting here including family relations social contacts work options economic independence