maid please the court my name is michael hagerman and i represent twenty nine private for profit and not for profit  ambulance what is the most important role of the courts reasonable people can disagree on that but i believe a very good argument is to protect the minority from the majority because the political process breaks down when you have a majority voting for something against a minority and how the founders of this nation protect against that situation knowing that it would be coming up time and time and time and time again in the political process the constitution and that is the tool that the courts use to protect the minority from the majority and the majority is not always the same and the minorities now it was the same depending on the issue we are here today because the majority of californians don't own ambulance companies that means they don't care if the state uses their property the ambulance companies property to reduce their taxes and the politicians in sacramento don't care if the state uses the ambulance companies properties to lower taxes in fact it's in their best interest so the problem becomes the constitution and federal law does not allow this and there have been a lot of cases that have come down while this case has been pending like armstrong and some a couple other cases in the supreme court as well on the ninth circuit that i believe are distinguishable from these cases from this particular case the number one distinguishing factor in this case is the procedural posture we are here on a appeal of a motion for summary judgment the interesting part about the motion for summary judgment was there was no argument that the burden to shift and the evidence submitted to affirmatively prove the defendant's case was troubled at best both under discovery rules and other evidentiary bases and the trial  court admitted certain tacitly admitted certain evidence into evidence without ruling on those objections so i think it's difficult for this court to even get to the merits of the underlying merits of this case because of the procedural posture  discuss one of the most important topics to discuss private right of action and in armstrong the supreme court held there is no private right of action under the medicaid act thirty eight which is thirteen ninety two a sub a thirty cap and a and that was the holding armstrong and having read armstrong several times it's actually an incredibly narrow holding as a five four decision if you're  somewhat irrelevant and i am answering your question your honor and so that the claims that we're making we have takings claim we have a contracts class claim we have a due process subsidy of and procedural we have equal protection federal claim private right of action which i'll come back to but as far as constitutionally i think due process it's really hard because they all have a central issue which is what's the property that's being taken so there they all have a common theme and i think that they're not terribly different claims there is a both relate substantially to the what is the property taken because most cases of hell th medicaid reimbursement rates are not property you can't expect that and i'm going to clarify that point a little bit later to what is the property that you allege is being taken the ambulance equipment and the wages paid to the payroll and everything like that and i think that under the circumstances and i hate to do this to this court because you couldn't any evidence says that it's in the pleading and there was no it was never the burden was never shifted well i mean you have to if you're going to claim that what was taken was the economic isn't all that economic information in the hands of your ambulance companies and couldn't they have compiled that declaration i believe but i believe it was i i didn't pay attention to a lot for that issue on in brief and because of the issue of rule fifty six which is we never get to that point because they've never shifted their burden so the truthful answer is i would need to provide supplemental briefing on that issue if you want to know more about i never shifted the burden  our stand when they move or summary judgment you've got to show there's a genuine disputed material fact they have to provide discovery showing that they've shifted the burden undersell attacks well and we did and we did by the way no we did submit but we did submit evidence that the that the reason why i'm not as prepared to answer your questions as well as i'd like to be right now is this issue the judge didn't really get to that issue and agreed that basically yes that's your ambulance sheep the trial just a court found that that this is in the district court order that that this is what you're alleging that wasn't the issue that isn't disputed on appeal that what the district court said is that the underpayment in medicaid didn't cause you to lose that that was another if it's voluntary participation then you've got a totally different issue it seems to me that you're raising about the use of the ambulances where you are  interrelated and that that's what actually distinguishes us from the other cases which is unlike a dermatologist in private practice we are endurance companies and under health and safety code thirteen seventeen are required to pick everybody up so what we're complaining of is the statutory scheme the entire statutory scheme and there is one case that i did this not in the papers that i just determined to be relevant yesterday which is why i couldn't submit to the court and it relates to the absolutely i put politics sincerely for not briefing this it occurred to me less than twenty four hours ago the days is twelve years old already but i was here and i was here the whole time i feel is only i've only been on the case for maybe two three years so i apologize and it it's on its face it's a different issue but i think is there any proof though that was put in the record by your clients of the overall economic impact of the matter cal reimbursement rate on the private ambulance service yes sixty million dollars but now that that's that's you're claiming because you're only getting roughly twenty percent of the cost of it actually but i'm saying the overall economic impact of that on your companies is there any proof in the record of i mean i this causing them to be on the verge of bankruptcy or i believe so i mean i can just tell you there's a there's a email list that i have with all the all the parties in this action and as  just what i can tell you i'm perfectly i do believe that there was evidence of economic harm in the in the opposition but i mean what percentage is there anything in the record of what percentage of the emergency transportation patients well one third this is this is public knowledge one third of the residents of california one of the issues one third of the residents of california have medical and i believe it depends on the county some counties  high as fifty five percent medical some counties are lower obviously but one third of californians are have medical insurance and some counties i've heard five percent have medical patients  one of the things that the affordable care act it is drastically expand medicaid and so the affordable care act exacerbated the issues in this case because before the affordable care act the medicaid population was substantially lower and then now when you expand medicaid and you combine that with gross underpayment you pos serious financial problems to ambulance companies and there's nothing directly in the record of what the overall effect of is on the on these companies all you have really is the fact that you're underpaid at the reimbursement rate cry i'd have to provide such a long briefing to the court because this was not raised in the answering brief this was really an issue at the district court level it's far as evidence goes there were there was an evidentiary this issue was decided mostly on the law and not on i don't think there's any there's very many factual disputes in this case of there are certainly companies going bankrupt not every company is bankrupt some of them are i think the if the financial impact runs the gamut like you said i represent twenty nine ambulance companies and the financial effect runs the gamut from being able to survive to depends a lot on the percentage of medical quite frankly the high medical help percentage fifty fifty five percent of your patients are medical and i that this is not a voluntary system that we were that the plaintiffs risk forfeiture of their ambulance equipment for not renewing their contracts those are the allegations of the complaint i can give you the paragraph numbers here you lost on summary judgment so you can't just rely on assuming the truth of the allegations in your complaint at this point but i think that undersell attacks i think we can which is there is has to be a burden shifting discovery i said i the the trouble i'm having is that this is this issue this is a brand new issue no one's really throughout this process even in summary judgment i understand what the court is saying and i'm trying to answer the best i can this is a new issue no one's really complained about the sufficiency of the evidence the usaf has been around for what seven years down but i understand and i'm not saying that there shouldn't plaintiff should be put to the proof i'm not disagreeing with the court whatsoever but what i'm saying is  because of the procedural posture the issue of what was in the evidence of the opposition it's so i mean what i can tell what i can tell you here is what here is what i mean what i know is in the evidence from the opposition which is that there was no rape study opposition centered upon which is attacking any evidence that they had of complying with the plan i believe that's what the opposition evidence centered upon now as far as substantiating the takings and everything of that nature that the burden was never shifted to plaintiffs to prove that and that's why i'm not prepared to talk about that today because i don't think don't know if it's in the record to be frank and i would have to provide supplemental briefing if that's what this court's concern is because it wasn't raised in the answering brief i believe it's fair for parents to get supplemental briefing on that subject it was not raised this was not an issue raised in the answering brief and if this was a concern of  director then it should have been raised in the answering brief i mean we should be given an opportunity to discuss what the evidence in the opposition contained as i recall they sit here today i believe the evidence in opposition was primarily the the thirty the six person most qualified witness saying i don't know i don't know i have no idea how any of this stuff was done that's what i recall the crux of the opposition as far as affirmatively establishing our case remember we were defending a motion for summary judgment thrown out across a motion for summary judgment we were defending ourselves and we were defending on the moving grounds that the defendants moved upon and not going outside the scope of that so we were they didn't put us to our full proof they arguably with the requests for additional a judicial notice on rate settings and things of that nature they arguably put us to the proof on that issue and we did it we met that with thirty six witnesses deposition but as far as proving our underlying case proving the economic effect of our taking they never challenge that and so i think there was a reliance on the pleadings for that issue undersell attacks as far as not having a burden to do that thank you kenneth we'll give you t honor may please the court deputy attorney general dias stanton on behalf of the director of the california department of health care services this court must affirm because the district court correctly granted summary judgments of the director on all the claims that were and argued for summary judgment motion opponents filed this lawsuit because they were unhappy with the medical reimbursement rate they receive but they do not allege that they receive less than the rate lawfully set by regulation and approved by  charged with oversight of the medicaid program their grievances that they want to be paid higher rates by medical but none of their claims would entitle them to an increased rate and as the district court correctly held each of their claims fail as a matter of law unconstitutional the district court correctly found that opponents could not prevail on any of their constitutional claims as a matter of law nor as we're seeing here this morning can opponents bloops drop their challenges under the medicaid act into their claim as creating a takings of their property and it is under spewed it that the obligation to provide services to everyone as your honor has just described arises from statutes that were not at issue here and as the district court found it's under pursuant to those statutes cited by counsel this morning the health and safety code sections and also their contracts with local districts and local entities that they are required to provide services to everyone but they don't challenge the statutes hospital regardless of ability to pat exactly what you're saying they're not the plaintiffs are not challenging takings are other constitutional things because of that obligation they never have and as the district court found if that statute and others like it impose the obligation upon them inadequate that it now only covers twenty percent of their actual cost of transporting a patient and their claim is that's a tank and what's wrong with that theory in your opinion well there are two things wrong with that theory thirty first it's essentially a them to transport medicare beneficiaries it's an entirely separate statutory scheme and contracts that they never put into evidence in this that would require them to transport those individuals so there's nothing about the regulation that they're challenging that i in the record as to that goes to the takings claim and also the economic damage contrary to council's allegations here today the district court in fact looked at the evidence that they submitted she cited that in her opinion which is in the record at our seven to below that to a whole whole slew of evidence your problems with that but that was the most evidence that they put into the record to show any evidence of any taking or economic damage or harm or anything like that and evidence on the record of what they're claiming of the overall economic impact as your honor asked questions about the percentage of emergency transportation provided to medic help beneficiaries there's no evidence in the record of that as an aside i would know that as we have argued repeatedly in this litigation the path to obtaining higher reimbursement rates ones through the legislature not through the courts and as we submitted in our rule twenty the legislature has recently passed and the governor has now we've heard argument this morning again private right of action is not relevant here appellants voluntarily dropped claims under the medicaid act and supremacy clause from their operative complaint they did so to get around the state imposed by the district court heard here to be near in your view on the taking skying which i personally am not speaking for anyone else think is the strongest claim here at some point do you think the that the plaintiffs would be able to demonstrat taking say if they were no longer presidential a viable or in another way such as accumulating the amount of the cost of services wages in equipment and other things that are taken for a period of time when they are transporting medicaid patients i do not they believe they would be able to state a claim in this lawsuit and let me explain why while they they describe the taking that has occurred as the use of their ambulances and equipment and employees exciter a essential what they're arguing is because they are not reimbursed by medic how cost that therefore there has been a taking they have suffered some  in economic value of their property by transporting medicare beneficiaries but they do not again under the state plan which is approved by the federal entity with oversight of the medicaid program these providers unlike other types of providers are not required to be reimbursed cost so that's one point and they don't challenge the state medicaid plan they don't challenge c m s is approval of the state medicaid plan none of that's at issue here the other point  allege that they are required to transport solely medicare beneficiaries what they do allege is that they believe they forget this at some point is that the state doesn't have its own ambulances and so they are ambulances to provide services but that's how the system that's how the system works and they can't bootstrap into this litigation which contains only constitutional claims allegations under the medicaid act  after and what your answer in that well first of all there's no evidence on the record that these public and private ambulance providers are similarly situated nor and again they concede that rational basis review would apply to that other scotches the provides the supplemental reimbursement for the public providers and clearly the state providing supplemental reimbursement to the public providers is a rational means of achieving a legitimate government goal of obtaining all the federal financial participation to which it could the state could be entitled so because that legislation is presumed to be valid and must be sustained if a classification is drawn by the statute if it is rationally related to a legitimate state interest a clearly the case here and even a discrepancy in reimbursement would not deny them equal protection of the law and there is no evidence in the record that that there has been any discrimination or any discriminatory intent toward private providers as opposed to public providers well the key of equal protection is you should treat similarly situated people in the same boat they're saying why we were ambulance services just like the fire trucks and again those are allegations and they've provided no evidence in the record to show that they are similarly situated to the public entities and in fact they're not actually challenging that statute which is the the interesting part of that they're simply saying by by the fact that it exists by the fact that there is a state statute that provides public providers with opposing counsel's point that all this evidence yuri stuff was not raised or considered below and that's why you want supplemental briefing or something i would oppose the request for supplemental briefing this was all squarely before the district court and i my response would be the directors filed a motion for summary judgment i believe in october two thousand and thirteen and then the appellant requested and the department  oppose their opportunity to reopen discovery and they did not file their opposition to the summary judgment most and until nine months later in june of two thousand and fourteen they had ample opportunity to obtain all of the other towns that they needed to make their that first of all the nun at the district court didn't rely on any of the departments evidence in her order granting summary judgment the evidence she did rely on where the declaration submitted by appellants that i referenced previously so giving appellants all the benefit of the doubt as she looked at the evidence that they supplied and ruled as a matter of law as to these constitutional claims so the evidence submitted by the director in support of summary judgment publicly available documents that had been either provided that that and the state plan amendment and other publicly available documents she didn't rely on any of those any of that evidence in her part of granting summary judgment she found as a matter of law that opponents could not state their claims and that they had submitted no you c the so there are two of a couple remaining constitutional claims that i'm happy to address that would be helpful i can do so briefly likewise the due process claim fails because without any property interest  that opponents did not make sufficient argument in their brief but in any event it fails on the merits because the regulation the challenge sets equal rates for in state and out of state providers and services and does not burden interstate commerce  as the court has has stated and as counsel has stated you know why didn't you prove your case at this time and at the time of the opposition to the summary judgment motion and the answer the answer that is as i've stated before is we didn't have to because we didn't submit evidence in opposition doesn't mean we didn't have the evidence and the case that we cited in the opposition to the motion for summary judgment on on summary judgment you have to demonstrate that there investment back to expectations and there's no evidence of what that is like how how this operates as a regulatory taking and you were obliged to do that submit that kind of evidence  excerpts ninety five is the case that we cited in the opposition saying that the burden doesn't shift to plaintiff until defendant has met their burden and i think there was a reliance on that at the trial court level at the district court level and i think that it was a then we have then the state has a huge burden shifting problem that if you had a pretty thin evidence of economic damage or investment back to expectations then that would have met that burden and maybe the same either would have to come back with something else or that my head cause the district court judge to say wait a second you know maybe there is something fundamentally wrong with this particular sector  medical service providers never you know having to choose between becoming a medic a provider or in getting something or getting nothing at all and excerpts that they didn't damed the state never made that argument in moving and there's a million different elements and affirmative fences and if you look to a case and in general when you're opposing a motion for summary judgment you only oppose the arguments that are being made in the motion and it's it's difficult to i would say it's very rare in my practice that in opposition to a motion for summary judgment you prove every aspect of your case you prove every challenge aspect of your case but these aspects of the case that the court is referring to were challenged by defendants at the motion for summary judgment stage and so there would be no point in putting evidence in support of an unchallenged issue well they are challenging your entire right to maintain your cause of action on a legal ground on issues such as i mean they're they're effectively their claim is so what we can do we can pay you twenty cents on the dollar and we can bankrupt you that is the that is the director's position here that you don't show that that's what they were doing that they were bankrupt because they never disputed that it was that is not a disputed issue in this case the disputed issue is what i lost as the law allows me to do that or not the law regarding takings that's what you have to show at trial i agree or a proper motion for as your circuit so i mean that first of all i was kind of an afterthought and the issue in this case it's the combination of health and safety code thirteen seventeen and that and also what the issue that was never raised in that case is the bell case that i cited where the state of california that i stated in the briefs property rights are determined according to state law state law gives a property right according to bell and the  s they say that there's an implied contract between unsure and and the emergency service provider and for the state to argue otherwise when it applies to them is inconsistent and so we there is a property right under bill i think and i'm apologizing to really for not connecting the two cases together until you're to write down the site yeah and i absolutely will and i think that that drastically changes the i think that case drastically changes the outcome because as stated in the brief state law determines property