plaintiffs are seeking is barred by the eleventh amendment so i want you to start with the procedural rights because it does say that there has to be a public process and it does single out providers as people who are to be given this reasonable opportunity so that's pretty specific and i can well imagine that the public process would  the provider in the position to make a submission to c m s the center for medicaid medicare services to find out what was what was in the way so something entirely non judicial but something that would be a very important right for them to have that's the point of a process just as we know goldberg against kelly price you know process counts and so why is there no federal right t to an appropriate public process well two reasons the first is that the public process provision is directed at the states primarily it tells the states what they have to do but it makes it clear that the beneficiary he of the process the you know to to use this language to the party who has the duty to do something is the state correct but it's being done for the benefit of the providers beneficiaries and their representatives it cetera and i would just stick with the facts of this case and say providers and that's exactly what the supreme court says should happen you know in cases like and saga or other cases it know who for whose benefit is this correct and for the provider well it's not just for the state the state doesn't want to process the state would be perfectly happy with no process at all right well it's not clear that it's for the process of providers then for singled out well it's important to read those words in the context of the provision as a whole because the supreme court says you look at the text and the structure of the provision or question and up front the party being addressed in it thirteen a it's the state itself the state you have to make your process public it's a public process that's what is going again i mean i agree with that mean for there it isn't of course it's the states to do that but the state has to do that to go back to while they're back in the language was different i know this has you have other argument about this if it says if it if it said a state plan must provide reasonable reimbursement it would again be the state correct had the duty but there would be a substantive standard actually that substantive stands still there in the regulations but i'm not going to worry about that right now right but anyway i so you're arguing your only argument is because it's the state that has to provide the process nobody has an interest in it no it's it goes to suit this specific provision so comparatively that there are other provisions in the medicaid act which up and followed suit confer so you're not saying that just because the state has to provide the process no one has an interest in it correct who does have an interest in the process well inst recipients or the public some provisions aren't clear that's why some some provisions in the medicaid act which do require the states to do something happened not  is supposed to be included in this review and comment that doesn't go far enough to show that this public process was enacted specifically for the benefit of providers rather than just to improve the in fish and sea of the personal right language when read as a whole because the provision directs the state plan to include this public process and it gives four distinct reasons for that public process want to which is to give the entire universe of interested persons an opportunity for review and comment for and it lists the entire universe as providers beneficiaries and their representatives and the free choice of provider provision for example in the planned parenthood case which was phrased in patient centric terms this is anybody who has an interest in this public process has a right to be heard correct it's very  language which is the stink from the individual eyes writes creating language that can zap requires and which again just because providers are among those listed and you know it's clear that you know maybe that they would have the opportunity to comment just being able to identify somebody who may obtain some benefit from a statute isn't enough to create a force right i'm going to ask you this is more than that surely you know the the providers are singled out that's why i think we need to be careful about the exact case it's in front us for i don't have a case in front of us where some random person on the street has come in and said i'm a concerned state president i agree that such a person might not have an enforceable right but they're not the same as a provider a beneficiary beneficiary in the representatives that we have right be able providers here but those are just listed within the context of a generalized public process that's one of the components it's not you know  list comes up in you know two of the in the second of three components of what constitutes a public process after the statute says you must conduct a public process and then you have we have a procedural question that's really wilder was talking about one version of the statute with the board amendment now we have a different version of the statute sometimes though if you look at something like state oil against time there's been a lot of change and yet as a lower  court actually the same thing happened in the mcdonald case is a lower court even if we think the supreme court might do something different we are not at liberty to say we've just decided not to follow a supreme court decision but we're not asking decisions miller was the case and there that case that relied on wilders analysis aren't automatically overruled or right off the presidential value just because the court took a more stringent approach and can saget it while there that's that's all the court said in on bontrager don't support plaintiff's argument that there that the statute now confers a substantive right even though the language has completely changed from the language that the court  considered and wilder because otherwise than congress is changing language wouldn't you know mean a whole lot if the statute just spoke about hospital services and concerns state residents i would be more sympathetic to your approach but we've got to textual references i mean it's not just  sue under section one hundred eighty three is and cept into that general rule which is why the court requires something you know very clear and unambiguous that the courts or the states know what they're getting into that you know they may be subject one of these suits in the future and so you know if the court looks at this and says well you know it it reasonably could be read to you know be directed at the benefit of this class but maybe not i mean any ambiguity at all under supreme court's  lobbied to put the language it around here if anyone but but are we to read out any possibility that that's what congress had in mind because for example if you have these hearings you can lower the cost correct that you know reading your complaint here two things about your complaint that concern me one is that reading quite a few paragraphs of the complaint what i see are references to the illinois administrative code i don't see references to federal law and the other thing that worries me is what i guess i'm going to finally have to call the ambiguity in my own mind about the remedy you're looking for i can understand the idea of a remedy that  he approached back to injunction against director norwood to start holding hearings because the stats doesn't sufficiently engage the state's budget you know or treasury to create eleventh amendment problems there are plenty of injunctions that look like that you however have wanted you know this injunction to be retroactive to july first two thousand and thirteen and that sounds an awful lot like money to me you know hearing that's going to say what should the reimbursement rate have been in july two thousand and thirteen and then that actually certainly would yield money payments and i don't know if if a backward looking injunction indeed i have real concern about whether a backward looking injunction is compatible with the eleven men so so as i say i can i can certainly in my own mind invision injunction says start holding hearings but i don't think taking the second question first the one that i would suggest to your honor that the retro the quote retroactive effect the funeral of the mandatory injunction that we see really only relates to the facts as they existed in july of two thousand and twelve when the change in ownership occurred that change in ownership under the statute is what gives rise to really the real need to be able to review would comment on the public process because the rates could should change based upon the cost reports for these particular providers so would you be willing to say that the data is twenty thirteen data but you would recognize that any reimbursement based on a new formula would only be a prospect of consequence of the hearings what i would say is this rather is that the injunction would apply prospectively and to the extent that the findings establish that rates should have been different than they were in the past that would perhaps identify an additional claim that could be brought by the plaintiffs in it at a different time in a different ac perhaps even in a different form and maybe not where i can't i can't see how under the eleventh amendment i don't think this is necessarily a problem with the whole case i mean it may be that you've just overreached and you can't get as much as you thought you could get but  i don't know what they would take a rate determination like that and go straight to c m s whether there's some process that that nursing homes and other beneficiaries have under this spending legislation but but i  do think that it's if the state makes important points when it raises the eleventh amendment argument to the extent that people are throwing around the number twelve million dollars and it looks like maybe it's just a way to try to get  back a back reimbursement of the lord your are let me be clear in no way are the plaintiffs seeking any damages any back reimbursement claim or anything in the context of the action that is pending the district court what they are stating is that the action that is pending in the right to a mandatory injunction so that we can get the public process to be able to review and comment is based upon pet facts that began to arise in july of two thousand and twelve with the change of ownership depending upon what the public process establishes and what the rates are there may be other things that make flow from that that would be outside this based upon facts that are rose earlier we were changing airing right now with hayden yes i was i would agree with your own swells are are you just simply asking there be recognition that there's a change of ownership yes or so it doesn't matter what the data is you just want the date is relevant only because that's a date when ownership change correct itself here you're you're sending a part a claim which is of that date be relevant for for damages going back you're just using it as a baseline that for the fact that a change of ownership occurred correct if we were to have a public process today that started with facts starting today going forward there's no change of ownership issue because that happened in two thousand and twelve so i think you're on to use the phrase baseline i would agree it's a baseline day to measure and produce the data that gives rise to the results of the public process well as early as or any  well yes i meant outside the record of well i'm guessing but i mean there are clearly there were new licenses issued there were there were sales down i guess my my my point is if there's no disagreement that there's a change of ownership but why would step that you say never happened never there was a change of ownership but there was never a revisiting up or down of the rate i mean i understood from the record that you assert that you know maybe there's a better electronic case management you know or patient management information now there could be some cost savings these are the the new owners i don't know if there are but that seems to me we just don't know but but what worries me is if once you get that new rate i don't see myself how compatibly with the eleventh amendment it could be anything but prospect of from whenever the hearing is finished and i would agree with your honor in the context of this proceeding that if a mandatory injunction issues to require the public process to be able to establish rates based upon a change in ownership that occurred in two thousand and twelve providing the providers with an opportunity to review and comment and complete the rest of the process required by the statute there will be a rate of stablished emanating from that process from that he writes and that rain that will go flying only in a forward direction correct not touch the states treasury in a backward way no ma'am why did you request an injunction retroactive to chill my first twenty thirteen then to establish and process the appropriate reimbursement rate and not look back way again i would i would i guess what i would say to your honor's that perhaps it would be more artfully drafted so you're disappointing that claim right here i am standing there disclaiming the fact that the effort in this case or any claim in this case to recruit reimbursement retroactively owed in this litigation correct so you don't want that twelve million back it's not what i said in writing what i said was in this case is i'm not looking to get that twelve million dollars back i don't know what the state is going to deter i don't know if the raising of the high are going to be low or i don't know if the state on its own is going to say that the rate should have been something further it should have been different than it was all i'm saying is that when we have the process in the rate it's set to the extent that any claims arise in favor of the plaintiffs that  finally getting that public process hurt we will certainly reserve our right to to deal with those claims in another action in and i would suggest most likely in another forum but it's not part of this litigation ok so you're withdrawing request for our retroactive injunction which is a contradiction in terms i would yes rather i would say that will was really meant was that we were looking for a prospective mandatory injunction requiring the process now with facts that begin arising to just want to be able to prove that the that the change of ownership happened when it did i mean i would take this is you know i don't know whether it's a half a loaf you'd rather get the eleventh amendment does stand in your way of retrospective relief but maybe you'd rather have it six going forward as opposed to nothing your honor to step in the process is a step in the process that we have never been afforded and if you get that stuff in the process i believe it was your honor said there's risk involved in this and th yes the rate may actually be lower down just to make the same point him back and we understand that but it's more important to us to assume that risk and get the benefit of the statute which with the right to participate from a review and commentary standpoint so that whatever the rate is it is fairly set there's been no fairness in this in the setting of this rate at all but you can get that relief in state court right once a radius that yes we have to have the well no i mean you could you could go to stakeout if we were to say that this statute doesn't create enforceable individual rights then you can just go to state court and make this identical claim for violation of the state if and here well i disagree with your honor only from the standpoint that what we complain about with respect to our state rights are the items out of the only administrative code that goes into the implementation of the federal sta the only administrative code around that was when i was going to ask is it clear that you could make this right to a public hearing claim that you're making under subpar thirteen capital letter a  in state court or if our court were to say there is no private right with the state courts simply follow suit your honor i think you hit it right on the head if we strike out here i'm not certain that a cause of action exists in the state court because we're talking about regulations that are imposed upon the director to implement the sort of spam we can't sue under tho eleventh amendment issue about what an injunction going forward would look like if it just like to clarify and which i think the scores are set by some make sure that it would be for that whatever process would result in a rate from that applies to state for rather than a rate forward live sec to august first because that's what they're asking for in their complaint and judge which are they now are stationary and we will take them at their word they're not asking for correct ok to some of those state law issues that were just discussed i don't want to give the impression that admitting that we didn't comply with the public process provision if this case were to get reminded for further proceedings on that question we would present evidence showing that we did provide them with the public process that's required under you know eight eight thirteen eight if there is a federal right that you know there has been an explanation for why they didn't get the great adjustment the question isn't whether or not there is a changed ownership that's getting stop me if i go too far in the law but it's  maybe they wouldn't have a claim now because the decision was made at some point in the past i don't know i don't want to get too much into the ex i'm not entirely sure but there are state law or remedies if a administrative agency has made a final decision that you want to challenge about that i'm not entirely sure i cause i think what this that was another snark i think what happened is that once the department looked at the date they said well it doesn't apply whether or not there even was a change in ownership so i'm not sure they even ever made it to that second question  they just looked at the date and said even if this is a change in ownership doesn't fall within what's required for the rate adjustment and that's that and again you know if this were to every man that we would put on evidence showing that we complied with everything that's required of us is money for the questions we would ask that you reverse all right thank you very much thanks to both counsel will take the case under advisement and the