fact of this case which is clearly alleged throughout the complaint is the defendant's change in budget policy has prevented and is preventing plaintiffs from getting the services and support that they need and that are spelled out in their individual plans of service of their i p o s the kind of hire staff and they're not getting out into the community these facts  underlie each of the substantive counts of the complaint now there are a lot of issues in this case and i'm going to necessarily going to need to rely on the briefs for most of them i see my role d here principally as making sure i've answered whatever questions the court has because the court may have questions on any number of the issues so i'm here i'm here i'm here to help having said that until there are questions i'm going to start with  and you're right that counsel this case is sort of like a federal courts exam so there are a lot of issues is yes it is is that clients institutionalize yet is not right is not that is correct and on lease on some of the claims i think just hard on noted that some individuals who are arguably at risk of institutionalization and not been institutionalized as that changed for any of them that has not changed so far as i know they are all still they're all still in their homes and the case forest for all three of them it's not been four years since you filed the original plan and none of institutionalized that it is correct although the actual segregation case there's not required bricks and mortar institutionalisation under study so they are they have been actually segregated they are not in the most integrated environment that's plain for us law school a council does it matter to me you have a number of statutory claims it is it important that certain ones remain viable rather than others or if any remain viable you you can go on your way well your honor i learned a long time ago not to do let's make a deal if i could avoid it the the all have slightly different elements they all relate to the same facts some things depending on who we've had no discovery we've had no substantive real response from the other side so it's difficult to say at this time which claims might end up being easier to prove under what circumstances and different plaintiffs have different claims not every plaintiff has the same claim so the answer is your honor they all matter if a court and ninety six and i mean to me that provision compared to some of the other ones that you can really seems to be a requirement that the state make certain commitments to the secretary of h h s and if those  a waiver application doesn't mean that the fact that there is power of the secretary to do x y z means there's no private right of action you look at the language and this court speaks of safeguards that the safeguards being seen to effect the this state governments of the agencies are complying with every aspect of the the statute your honor of the state is a guarantor of that in a in a in a very real sense because the single state agency requirement under under the medicaid act says ultimately it's the state's responsibility and they can't i mean there are three levels of medicaid  agencies in michigan but the single state agency requirement says it's the state's responsibility how that works itself through through fair hearings and this and that can can change in the different different states in different contexts but it is the state's responsibility a guarantor of every specific thing it depends on the thing at the pens and what there is where there's a private right of action but we're but here we're specific assurances satisfactory to the secretary are required and the secretary has issued regulations saying what those specific unsure assurances are and the it is clear and we've pleaded out which ones we are relying on and those are specifically for ready the health and welfare of the individuals and that's the that's exactly the way that a view you get to a health and welfare of the eye of the waiver individual and this secretary through notice and comment rule making a set out what those assurances must be to protest the health and welfare and we are relying department of justice interpret homestead and we are relying on it in part we are relying on it for what i suggest would be clear in any event which is that you need not have actual institutionalization that that risk of institutionalization is an ox and the cases that have dealt with it have all said this is not binding but because the department of justice has been given specific fine and really can't create any rights that are otherwise specified by the statute or the regulation correct that is correct your honor the point is that when it comes to risk of institutionalization it cannot possibly be the case under own divided i time into three equal parts and i would like to please a look at use my time to talk about how our program works because it is not as has been alleged by the plaintiffs in this matter that the appellant refer to that method was used for just a few years by our predecessor organization and it drove them out of business because they spent too much money and their  resigned the method that is used is the method that we have from the medicaid regulations we put together a budget the budget is made up of the number of hours that are decided your honour's there is a personal plan that's put together for each recipient in a meeting there is attended by the recipient his guardian and the agents from community mental health and they decide what are the things that the recipient wants and needs and these services are to get them out into the community are not medical services these are not psychiatric services and the medicaid provider manual specifically states c l s is not intended to me all of the individual needs and preferences as some may be better met by community and other natural supports that's what we try to put together once that budget is decided and that the number of hours is multiplied by the service hours the service hour rate is handed out to us through all our regional authority we don't set that rate plaintiffs are also mistaken when they say that these are stamp hours they're not with their service  you so some of this is very helpful in clarifying a case other things sound a little bit like issues that might require some fact development or a little bit of a disagreement over the facts and  are actual arguments i believe that the district judge could correctly use the facts that were contained in documents attached to or refer to claim in plaintiff's complain reasons why they are entitled to the particular calculation method that they advocate and that's the issue in this case around whether they're claiming an entitlement to be able to take our budget and add on to it none of the reasons that they cite show and they haven't said to this court or to the court below why they have a right to articulate how their benefits will be provided to them so i say that with regard to all of the legal arguments that have been raised kelso i don't want but worse in your mouth but it almost sounds as though yours in your saying that if the argument here not sure i'm not sure about to answer the question your honor but what i what i am saying is that there is no legal basis no legal basis and no legal theory under which they're entitled to decide the matter that at their benefits are calculated your honor one of the plaintiffs here have is has one hundred and twenty hours of services that's what they have now another has one hundred and fifty hours of service and so within that framework our position is that they have the hours that they need under their individual plans of service well council let's say i don't think they're complaining about the services set forth in their plan i think they're complaining that the money a lot of it is insufficient to particular those services but what if you had a perfectly good plan and you budgeted for dollars an hour are you saying they wouldn't they would have to claim well what i'm what i'm saying is that at this point all of the recipients well because of coal they did it it actually got in and to a dollar raise they're getting one thousand dollars per hour now for their services and their plans not one of the pla ever even at the specific invitation of the district court stated one service that they have not been able to get to again not one and i don't want to take the time of my colleagues but if the court will allow i will that as d all of their medical medically necessary services can be provided and if they're dissatisfied with the level of service they have the opportunity at any time to reopen their individual play of the service seek additional c l s hours that's that's not the issue they're not complaining about the hours allotted in their plans they're complaining about the fact that the money you give them is insufficient to prove just what you are what they can do and what they have done successfully in the past that they're not satisfied with because that's sort of how it's calculated and what they can do is ask for additional hours to compensate for any kind of shortfall and some of the plainest have actually gone through the administrative process in the state and have got additional hours to overcome any kind of shortfall that they've received they've successfully done that now there's also a difference in the district court recognised between d needs and wants in a very difficult and the situation because we can't allow a certain a handful of  medically necessary services and if they are medically necessary they will get them because there's an administrative process whereby they can go not only through they have into the big court to some that and it will be determined whether they're medically necessary whether if it's the play and already conceded that they're necessary and that's what they're alleging that they're not saying there's anything wrong with these plans it's that they can't get those services with the money that they're getting so i don't understand how this how this helps i mean you heard he conceded that it's medically necessary well because when they go to the process your honor they're able to obtain additional c l f hours if they're some kind of deficiency and the services that they're supposed to receive under the plan they can receive additional hours and you'll agree that i need one hundred and twenty hours and i don't think i need any more hours and you don't think i need any more hours you're saying the way to deal with the fact that the money is insufficient is to go in a store more hours so i have money for one hundred and fifty hours and i use it to obtain one hundred and twenty hours but that's not consistent with this whole system you're not supposed is factual is a minute now because it keeps coming back or two i think that the most important thing to keep them i'm going to be i mean in this case that keeps coming back to just like many other health plans a particular recipient doesn't have the right to dictate how the budget is calculated but they may not have that right not even i agree with you that they don't have a right to preach it here before me but this is just  it's just a circumstance that there used to be a different form you can take that out and they still are claiming that the formula you have can't get them the hours and that what ever formula you use you can pick it has to be enough to get them there hours but they do have people they do have the opportunity that if they're not getting medically necessary service it has to obtain re through the administrative process and that's what it really is the medically necessary services and like everyone we have to work within a budget because there are only limited resources that the federal  of course initially based on the new budgeting that the college plaintiffs concern was that that methodology effectively caused the decrease in the budgets so in fact it's interesting because really the issue here is that the plaintiffs claims are so speculative that that is why i believe that's not survive a motion to dismiss because they really are just challenging the methodology and they're saying this particular way this formula is no way that the thing that's causing in red institutionalisation a risk of not letting the services when in fact they give nothing tangible is the number eighteen dollars an hour is the number twenty dollars an hour they don't say that well so your eyes it sounds like services is they're only able to get a certain number of hours on this budget they're having to have elderly family members take care of them it's not going to be if they're not going to be able to maintain that indefinitely and so those are specific but then you say you say they're not coming up with a number that's enough you say is one thousand enough or something else but at the same time you're complaining that say that method or is it not specific enough not to give you a particular hourly rate well i mean i think i think the answer is frankly in a way and i  completely see your point the method itself d in a sense st of all the prior method was not permissible under medicaid so it did violate medicaid rolls so we can't have that  but also i mean i think the issue is the methodology itself doesn't necessarily change the amount of the budget because then we're just playing with numbers i think that's  point and so there's no one who maybe their claim is we need x amount of dollars and that x amount of dollars probably could be obtained in any budgeting meant methodology but that's not what they claim here they  claim they just they just attack the methodology and i think the reason they do that is because frankly is what they're looking for who are and what we can never frankly and i don't think there's anything under the law every case ohm's all the  counsel said that the previous a methodology was not permissible under medicare with great respect that's simply not true and although there was a finding by the district court on the plimer injunction motion that that was the case the the main purpose and main purpose of the amended complaint was to lay out in great detail d why that is not true and nobody has ever for cited to says two things about it says the budgets must cost out the individual's services and support that's what we are asking for it also says the budget quote must be sufficient to implement the s the there may be lots of different ways to do those things but the bottom line of our claim is that it's not being done we're not trying to dictate a method although we are saying that for eighty eight purposes the fact that there was a method in place that didn't work means that it's always permissible to go back to a previous fifty eight compliance method so that's that's that's an entitled to the amount of medical assistance that's made available to others serve some equality principle i guess that that that two people have to have the people who are beneficiaries i think of the program ha right to same benefits sensually but by rights that's a comparison between it's a comparison between indifferent disabled individuals would be covered by the law to do the best i can under section under section b i don't think you're saying a group of disabled individuals is being disfavored over another group of individuals who would be beneficiaries we are in one respect your honor and that is that the budgeting there is no budget requirement for people for whom agency services are an acceptable option we have pleaded in and it's in the record and there are all sorts of factual issues as to why agency services here are not what we are saying is that these individuals have her right to certain kinds of services and they're not getting them and that's really what this case is about the the i p o s and all of the plans talk about the services that the that these