the plaintiffs have lost only optional medicaid services and second the holding that these medicaid beneficiaries had no right under section one thousand nine hundred three to enforce relevant provisions of federal medicaid law the first year of law results from the district court's failure to recognize that in the oregon medicaid program the equivalent of nursing facilities services can be provided in assisted living facility in a residential car who need nursing facility services and the defend this is not the night that these individuals need nursing facilities services and since february of last year or even rule of last year these individuals have been terminated from those long term care services to require and i think that's the crux of this of this case your honor because organised and has terminated both the services for these individuals which means five here is not as i understand it an order requiring oregon to revive those services but rather to require organ to provide the alternative or optional services that community based services you know you're out of the org and has always used the same standard for eligibility for nursing facilities services and for home community based waiver services we're asking that that's death standard be restored to the to the proper level organ would have the organ has the ability if it wished to limit only the waiver services that would be allowable under federal medicaid law because the waiver services are optional services and if organ chose to do that you could decide to focus the waiver services only on particular geographic areas of the state or only limit the waiver service to those in categories one through eleven for example but what organise done has denied both the optional waiver services and the mandatory nursing facility services to these individuals so i think your question your honor really can't  pivot point of this case because if it's assumed that these individuals have only lost the alternative delivery system of the community based waiver services then there's not a violation of the medicaid law but on the other hand as is true in this case if individuals have lost both the waiver services and the nursing facility services then they are lacking the mandatory nursing facilities that have to be required that have to be provided under under federal medicaid l are well there's no there's no showing here that there's been any review by the federal government of those standard if it gets to the issue in this case the the approval of the statements by the federal government by the centers for medicare and medicaid services have dealt only with the waiver of services but the actions taken by the state have terminated individuals in the waiver program have also terminated individuals who've been receiving nursing facility services and significantly it's depriving individuals in the waivers that end of the long term care services that they need because if there weren't a case the evidence shows that the state of oregon for over twenty years has used the their system was functional limitations and has designated individuals one through seventeen as needing nursing facilities services that's been a standard that's been recognized by the state as appropriate it's only been in the last year that that's changed and it's clear from the record that that it hasn't been and because there's been new medical evidence or medical professionals  facilities services to people who need nursing facility services and those standards have to be reasonable and the significantly here nowhere in the briefing  started with there's been a confusing confusion between the optional medicaid services and the core mandatory nursing facility services and there's also been a position by defendants adopted by the district court that plaintiffs regardless of the of the facts have no right to seek their statutory entitlement and in federal court so there are these standards are unreasonable and if they were to be reasonable they have to be based on medical evidence they can't just be moved up and down arbitrarily along with the with the state budget requirements that pace that just came down in december twenty third and was submitted to the courts office here in san francisco yesterday as clay with v just because a state has to deal with some budgetary problems the state has certain legal obligations and those those the budget has to be constructed within those legal obligations in oregon here this the state defendants have acted without regard to their obligations to these to these individuals and the issue has been confused i think in the district court because of the fact that most in oregon the majority of individuals who need nursing facility services have been receiving those services in a waiver setting that organ has been very aggressive in its use of of wavered services and his use the home and community based  system as an alternative delivery system for providing the nursing facilities the services that are are mandatory at the excerpt of record on page two hundred fifty one as noted that of this core group of individuals who are determined to need a nursing services over twenty eight thousand of those have received those services in a waiver setting as opposed to less than six thousand receive those services in a nursing facility setting and all of these individuals  this been submitted by the state of oregon and that waiver application makes clear that waiver services are only available to individuals who've been determined to need nursing facilities services but we're dealing with this pool of it's been chill away from those mandatory services and i get back to the question about the dismissal planets are in a horrible predicament here that they've they've lost these services they've been forced out of nursing facilities and of assisted living facilities they're there they're not receiving services they're struggling in apartments and they can't afford to wait for this matter to to be dismissed and then to consolidate the appeal and somehow come again before this court and the reason that we asked for an expedited ruling is to instruct the district court on these two principle points there these individuals have the score entitle plaintiffs have no chance of relief and if we return to this court six or nine months from now it's already late in the day for our clients and it's only going to be later your honor thank you council thank you although and i hope i'm not being unduly picky here but i think what is actually before the court are the changes in the waiver program now admitted late part of that is a change in the eligibility standards which there are seventeen categories of persons who need nursing services this is not allowed to say we'll only deal with one through eleven if they want to be program they've got to do it this way and we have to give anyone who anyone would ever conceivably say needed these services we must include the ball we cannot ever make some differentiation and of course now he  determination you could say that the ones who are truly the most medically needy maybe one through fourteen can't do it on the basis of money can only afford to do one through nine well obviously certainly here the motivation was money the the need to have something well this was a monetary pressure but nonetheless medical need is being factored into because that's at least in part what's the chairman's the levels the levels one through seventeen misunderstanding it before level one certainly going to be eligible for medicaid but beyond that level one reflects a purely being assigned a level one as opposed to level seventeen reflects a medical evaluation yes i have and i think counsel for really kind of making special efforts to make sure that that i receive that was aware of it it's dealing with a very different provision and well i'm not sure i agree with it but it's a very different provision of the medicaid act none of it's a provision which is not in any way involved in this case and deals with selection of providers i there are there is the adequate rights creating language in this particular provision of medicaid act that he's dealing with he says something along the lines that there isn't but that that's really understandable because the way that congress structured the statute generally was to say what was had to be in the state plan but that strikes me as being just sort of backwards because it might well be that congress structure of the statute in that way either but we're we're on the same place and all you have here is that kind of language that says you're within the class of people benefit but then there's also some rule double i which says be spending wedge pleasure and i don't think i've ever seen any decision that said anything other than that it was spending legislation although i would not say that there are no such decisions but they put it again i think but i think the stronger answer is that yes i think one could readily say then affairs are intended to be provided and givens of people by this law but i don't think that's enough to create a privately dressed just clifton's question about the state medicaid plan i know of no approval by c m s for the application of these of this restricted eligibility to nursing facilities services the only approvals are on page two ninety nine and three hundred of the excerpt of record and they deal exclusively with with waiver services now with nursing facility services and and finally  it's not adequate for the state to just rank individuals and say we protected the sickest people there's an obligation in the medicaid act to provide nursing facilities services to all individuals who need nursing facilities services it would be a very inadequate medicaid program that fails to do that and that's just plain as you're asking for it these are individuals that terminated individuals who've been determined for based on standard used for more than twenty years  facilities services defendants don't argue when you get further and these individuals no longer have actions to nursing facility these services and no longer have access to the alternatives services as well and one question which you may not be when reviewing the final judgment here is your so you're making a calculation balancing your client's needs for prompt action versus how is the case best put together for your purposes for the court of appeals and on that basis i wonder if you might elect to have the cases consolidated rather than have us render a decision based solely on the case in front of us now i think that was why i don't hesitate asking for early early a review is that first of all like my clients can't it can wait that that every week there goes by is it is another person who gets who gets sick or dies or is deteriorating so part of it is time pressure but also we are really presenting issues of law before this court today there's not really a dispute about sax players talk tennis don't question that these individuals need nursing facilities services so i think to a great extent we're arguing versus virginia i suppose those stations and in both cases the supreme court found that the fact that the federal government had a statutory right to terminate funding did not mean that individuals nonetheless couldn't go before a federal court under section  clarifies the previous cases by stating that it's not enough for a plaintiff to be within a general zone of interest you need a finding that there's a particular intent by congress to benefit these particular and this class of individuals are doesn't doesn't limit plaintiffs right in this case because these are individuals i think it's been pointed out here who are specifically identified this congress these are people who are financially eligible for medicaid and these are the people right here who have a entitlement to the mandatory services guaranteed under federal medicaid law