good morning inmate please the court robert alman for gregory mckay the director of the arizona department of child safety with me is nichols sado representing the director of the arizona health care cost containment system we've designated a split in time and that's so that mr sedo can address any medicaid specific questions that the court may have and i will attempt to reserve time today as well for a bottle arizona judges have entrusted thirteen thousand minor children to the care and custody of the department of child safety and although greg mckay was not yet the director of that agency when this lawsuit was filed the plaintiffs allege that director is deliberately indifferent act or refusal to act has created a substantial risk of harm for every child in the foster care system which is to say a conscience shocking risk that places all children in imminent danger of the deprivation of what society would consider the minimal necessities of life if proving that kind of dereliction  harm that magnitude and be half of thirteen thousand people seems formidable it is in order to move forward as a class the plaintiffs should have been required to carry too daunting burdens that they were  of when the district court applied the parson's paradigm they identified no common body of class wide evidence that any of the plaintiffs could have used in order to establish a deliberate excus a substantive due process violation beyond that they failed to find any path that the district court could follow in order to avoid review of highly individual lines you concede were bound by persons right yes i can your honor and we do acknowledge that except as there were some arguments in the brief that's suggested somehow or we're supposed to overrule that or so i think well that i agree that the panel could not overrule the prior decision of another panel however there are jurisprudential reasons to at least address the merits even if the court is bound that was kind of a breakthrough case by my deceased  colleague and it does come as quite quite a surprise as you change your view but we are required unless we go in bank to file it to follow it completely understand i understand your your point of view on this but it is filing a petition for rehearing and bank you'll have an opportunity to file for your hearing and bank but it's not common that you'll see anything where a panel decides to undercut another panel i'm sorry i don't know  will continue to cost district judges throughout the circuit the dilemma that it's been causing which is they would have to either follow parsons and file walmart is there a dilemma if they follow the law i don't understand that argument you make it's well it's the law so if you want to change the law there's a way to do it but that's not to make an argument here mr out of it was it was premised on the idea that judge i could as dissent discraft and i do need to note that this panel still can't reach the medicaid specific claims because they're not they're based on an extension of parsons to the medicaid status of the due process claims that i doesn't seem that you're asking us to say that parsons was incorrectly applied it seems like you think the district court applied parsons and you're just quibbling with parsons right we have taken that position your honor it's difficult so we're just a way station here because we really can't help you with that i understand your honor and again i'm just asking for some sort of know if we need to turn to the medicaid claim because that's really the only argument that we can even consider does that mean we should talk to your colleague or do you want to proceed about what i would like to explain what the error is if i may and i think a rigorous analysis of the kind required by couldn't do that either the district court is bound by parsons just like we as a panel or it's correct your honor and i just again wanted to explain what the infirmity in parsons is as expressed by judge i could  and how that came to create the same error in this case if the panel doesn't want me to do that then i'll then i will yield the rest of my time to i think it would be a better use of time to talk about things we could consider all right  morning i am nicholas saito and i represent the director of the years in health care cost containment system district court certified the following question as far as the medicaid subclass is concerned that is whether access is alleged practice is quote failed to get here to the medicaid statute the only way that that common question survives is is if it is grounded in a parsons type risk of harm analysis and i understand that this court is not interested is interested in reading citing parsons or even addressing it but but even if we assume that parsons is parsons is currently law the circuit which we have to do i understand even based on that assumption it cannot be used to certify the medicaid subclass in this case and let me tell you why on its face the purported common question that i just stated doesn't survive wal mart whether whether the practice has failed and here's the medica statute that's just another way of asking whether the class members have all suffered a violation of the same provision of law which wal mart prescribes more importantly you can't walk in there it's different there right because it was decisions by managers in separate stores all across the country whereas here it's a statewide program and they're doing a single defendant so why is it the same with wal mart well it's the same as wal mart the common question is the same the question that the court wal mart said you cannot have  question being whether all all of the employees in that case suffered this same violation of the law that is not that is not a sufficiently valid common question and the question if there had been in wal mart a nationwide consistent policy that applied to all the stores that cause they allege injury that would have been very different situation than the assumption that the court made which is that it is probably individual decisions and there was no evidence of a common policy across the country why did wal mart i believe the the the claims were based on individual decisions and that's what i'm saying though and that's because there are many different stores with many different managers making employment decisions there wasn't one person in charge of all wal mart stores making all employment decisions but here there a single defendant sued on behalf of a part of a program that statewide as i understand right in they are suing the director in his official capacity but really the core of their claim the crux of their claim is based on  individual alleged failings not that there is a written policy across the board that applies uniform but that there is this there's a collection in the aggregate of alleged wrongs that these children do not receive a screening or treatment on this day or that day that's what their claim is it's not one claim against one defendant for one written clear policy you have to look at what really the core of the claim is and under walmart you can't you cannot  say that medicaid it's a little bit unclear to me exactly what the requirements here are but they say that medicaid requires every child in foster care to get a health screening in the first year and the state wasn't doing that since no one was getting screenings is that a claim that could be brought as a class well the claim is medicaid requires access to make available the screenings so it's not that yes they have a right to the screen screening under medicaid access as rule however is simply just to ensure that they have the opportunity and access to that screening so does that mean who is supposed to take advantage of the access for this visit make sure that the child takes advantage of it well well the children  guardians but we access makes makes it available to them they'll get them connected with a provider the provider sets up the appointment and at that point their obligations under medicaid are satisfied and at that point whether or not the child actually makes it to the screening appointment or not that's not that is not a denial of medicaid just simply because they didn't receive it for that reason and so is the allegation here that that just people didn't have the screening and so now we can't tell why or is the allegation that it wasn't made available because there weren't enough doctors and there weren't enough caseworkers well it's very big the allegation is that they just failed to receive services was because of the defendant's conduct isn't that the argument th bigger the defendant's conduct and failure to have enough resources or whatever people creates a risk of the these children are not getting what statutorily they're entitled to under medicaid and that basically the argument that th theory that's their theory and that's so that's the theory that the district court accepted but it's wrong because this whole notion that there might be run on the merits but we're just at the stage here now of class of the people who are subject to that everybody but that's not the issue here right the issue is whether a can whether there's a common question and it it's not because going back to parsons parsons even parsons exists because of the nature of the claims in that case an eighth amendment an eighth amendment risk of harm came to claim the constitutional injury for purposes of the eighth amendment and the fourteenth amendment is substantial risk of serious harm as soon as they are exposed to that substantial risk of serious harm at that point there's a constitutional injury and you can sue on that claim you don't have to wait for it for the injury to actually occur but this notion of at risk or risk of harm is incomplete and doesn't exist within medicaid but within the medica act and and that's why there's a risk that they're not going to receive the services that are required by medicaid isn't that i don't see what the difference is exactly could you repeat the question or the risk is that they're not going to receive services that are supposed to receive under the idea no what their theory their theory doesn't match with what is necessary to prove their case the elements of the claim they're saying that there's a risk ok let's assume that that's to be true that doesn't mean that access failed to provide what it's required to provide under under medicaid or claim for damages that matters how big the classes are whether it is a class here as i understand it it's a claim for injunctive relief to get some kind of change to the state program which either has merit or not i mean maybe  we'll prove that the state program is perfectly fine and no one will get any relief but i don't understand why it matters even if it's just like one plaintiff compared to a whole class of plaintiffs when you're seeking injunctive relief to fix the funding problem it seems like one kind of could do that  say that you thought parsons was a damage i don't know put it no i said wal mart had damages but so put aside parsons just for this medicaid claim you're fighting a lot about whether this class got thirty five and i just as a practical matter don't really understand why this claim depends on it being a class at all well i think if the for instance if this claim were just brought by b k the name plaintiff and she would have to allege that she was deprived or denied access to medicaid services she would have to prove that and as we that's the second reason why the medicaid subclass fails is because they haven't shown that she's ever been deprived or denied medicaid service with access failed to offer her that service so she's she is she were to bring that's a separate argument this gets to i mean if the if the nameplate if they're no good that's an argument if they don't have a claim because they just can't prove it that's another argument but this fighting about whether it is a proper class seems a little little confused about whether it has a practical difference when if you could prove the the way the state is i think about the kind of thing to prove is the way the state is running this medicaid program violates medicaid and it seems like if that's true probably a single person could please prove it and if it's not true then they can't and whether it's a class or not i don't know why it matters but well that's an interesting question i don't i'm not necessarily agreeing that one person can bring a claim for injunctive relief for themself based  on a system wide practice i think that may run afoul of rule sixty five because that injunction could only enjoying or require access to do something as to her it wouldn't quote unquote fix the whole system and that's what plaintiffs are trying to do and that's what they're really trying to get at is they're bringing someone in like b k who has never been that the evidence shows that she's never been denied medicaid service and they're pointing to all of these individual instances of alleged deficiencies or failures and then saying because of that there should be a class action and court can come in and quote unquote fix the system and i think that's why it's important because it is just one of the purposes of a class action is this exactly what you said this is not what the way it's supposed to be i don't think so i think the purpose of a class action is you've got a conglomeration of individual claims that are the same that they're all seeking that they ask a common question that there's a common answer that can be answered in one stroke and just because i'm actually the common questioners that they're all subject to risk of not receiving services well the common question is whether or not access is violating the medicaid act you can answer that in one answer it depends on every single foster child was this foster child was she or see or she ever denied medicaid service or deprived an opportunity well you've got to look at the facts she says that she didn't receive something ok how come she didn't receive something she could have been offered it maybe she just didn't get a ride to her appointment made maybe she was sick maybe she didn't want to go there's lots of reasons and you have to look at those reasons to figure out whether this foster child was offered but denied medicaid services and you have to do that for each one so you just can't have one or two or ten plaintiffs say this is a class action because we're challenging the practices and we're all at risk it doesn't it doesn't work with with a medicaid type claim that's really only limited to well that is only limited to these claims that have an element built into it a substantial risk of serious harm that simply doesn't exist here i'm getting close to do you want to reserve the rest of your time and we can i would think  you please the court i'm harry frisch or i represent the plaintiff foster children in this case i'd like to start by addressing the common questions with respect to the medicaid claim and i think these kids the medical services that they need to get what we've shown is the practice of overburdening caseworkers with excessive case loads and we have experts to say what is that result in among other things it results in children not getting to the doctor children not being taken to the doctor children not being taken to the dentist children not getting follow up on the mental health care and that's not their argument their argument is that they aren't arguing against the other some classes are incomes the subclassing argument is that under medicaid it's different you have to show that it's a violation of the statute your general comments that they're not getting aid and they're not being taken care of don't help at all and that so why don't you get specifically to why i counsel was incorrect that in this particular subclass not the others but this  subclass you can't go in generalities you have to show a subclass that has been refused medicaid not taken care of generally medicaid what i've referred to the court to is the ninth circuit this is in the k a case which outlines the requirements for medicaid someone different than my colleague outlined it katie a case makes clear that children actually have to receive the services it's not sufficient for the medicaid system to just have them available so i'm not i have to say i had a lot of trouble figuring out what services you think medicaid requires and were denied to support this claim that you're bringing can you point me to where the allegations are the evidence is that says the name plaintiffs had this requirement for medicaid and didn't get it but what what i'm relying on your honor is the light of authority in katie that is federal courts scrutinize medicaid systems to be sure to be sure that those systems are adequately designed provide the services these are we don't scrutinize them unless we have a case that's properly brought that that says there's a violation and i don't understand anything other than just a vague hand waving medicaid exists then these people didn't get enough medical care and now with respect i'm sorry you know that i'm going to please go ahead go ahead so with respect to b k the evidence that that's in the record and also part of the second amended complaint medicaid act what about that violated the medicaid act and we have a different view of what the medicaid act requires and that also is a common question that that violated the medica because the department the foster care agency and the medicaid agency together have an obligation to make sure that children in foster care actually get services to no you're even losing me right away because you want to tie it in with the others and up my question was specifically medicaid because that's what they're arguing where do you show that there's any of these children that have asked for medicaid and and have been refused medicaid aid and your honor put that way that's not a requirement particularly at this stage of the proceeding so i have to show that there are common questions that the that the elements of rule twenty three have been satisfied it's not a summary judgment motion it's a motion for class certification there are common questions as to whether defendant's failure to have enough i'll give you a very specific example these children both needed therapeutic foster homes their record reflects very clearly that they needed it repeated required by medicaid a kind of whole medicaid requires sufficient resources to meet the mental health needs of the children in care repeatedly there haven't been they don't have enough therapeutic foster homes they don't have enough specialty care placements they don't have enough of the resources the therapist the trauma based therapists they don't have nearly enough of those resources that are required by medicaid and and that is putting my experts say both my mental health expert and my physical health expert are saying those are putting children at risk i have my my plaintiffs can come into court and say i would like an injunction requiring the state to comply with what k d a says is the medicaid to have a reasonably designed system to get these kids the care that they need and they have to comply with that and reasonably designed the system to have sufficient service  providers to do it i don't in order for me to prevail on that claim or for plaintiffs to prevail on that claim we don't need to prove that plaintiff came into the medicaid department and said please sir can i have this medicaid service and the medicaid department said no you may not that's not the only that may be a way to prove an individual medicaid claim that's not what plaintiffs need to prove here and  all of that and that's for later that's for perhaps a summary judgment stage you know what i what i think under wal mart and comcast the supreme court has now is that for commonality you actually do need some evidence  of a common problem that's affecting the class so for this medicaid claim it seems like you need to show there's actually some uniform something that violates medicaid and i guess i'm still is really struggling to see what you i'm putting aside the due process claims i think you value them but as this medicaid claim i just don't know where you're pointing to a specific program that violates medicaid but what i'm pointing to your honor 's is k t l a and the requirement that medicaid system be sufficient believe the signs to adequately meet the mental health physical and mental health needs of the children the says the and we have submitted substantial evidence that it's not and as a result children are at risk we've also said is it does medicaid like entirely overlap with your due process claim in what you think the denial is i just don't understand enough even from what you put in your brief of whether medicaid covers all health care only some of what these kids are supposed to get it's just not explained  me be very clear about that what our contention is it's the same facts giving rise to the constitutional claim with respect to medical care the failure to provide medical and mental health care that those same facts also give rise to the medicaid claim except i don't have to prove deliberate indifference for the medicaid claim i just have to prove that the that the system was insufficient and what i submit to the court is that that issue which mr seato and i disagree on but that that issue is a common question of law to be resolved not now but at trial and that that that my view that the classes view very clearly is that the failure of the system to get these kids to the doctor the failure of the system to have enough resources medical mental health resources for these kids that that is a violation of the medicaid statute and there's a common question of whether it is or it isn't either my view of the law's right or it's wrong either my experts are right that the failure of the system to have sufficient resources for these children puts them at risk either they're right or they're wrong all of the risk is a question of the question is violated this section of medicaid i still don't know why i would point again your honor to a few things first i would point to the e s p to the provisions of the medicaid statute that requires the system particularly for kids in foster care who are in the custody of the state to get to actually get medical screens is that in the record where where do i find us that that's in our brief you're out on the on the the medicaid section the e s p d provisions of the medicaid statute i can't cite them from memory but that's certainly not everything like yours you said back to your statement of facts that was that we're talking about nutshell those provisions require that the system make available and not do more than make available actually get to the children those screening services that they need and that if the screens show that there are problems that those problems be addressed that the children get medically necessary services our contention is that the medicaid system and the child welfare system isn't doing that and by the way i'd ask you to look at those provisions in the context of katy ebay which which has very clear language that the  state is obligated to provide those services not merely make them available and the state is obligated to design an adequate system so that children are actually getting services again if that's right or wrong it's a common question and the so i'd refer you to the p s the provisions of the statute i would refer you to k t a b and the upshot nder the well all of the elements to satisfy certification of the class with respect to the medicaid claim as well as the constitutional claims and i would just like to add one thing your honour's with respect to the burden of proof at the class action stage because i think my colleagues at the other side of the caption are urging a burden of proof that does not exist now that again this is class certification is done at a preliminary stage of the proceeding it's not a summary judgment motion i mean here the record for class certification that that you have before you close the bat a year before the sky every was done and the burden is to show that where prepared to prove the plaintiffs are prepared to prove that rule twenty three has been satisfied the ninth circuit in the sally case has held that the court needs only former reasonable judgment that rule twenty three is satisfied and the engine case made clear that a a mini trial is not required the court has no license to engage in free ranging merits this discovery and we're not required to prove at this stage play this aren't required to prove at this stage that the common issues will be answered in their favor so what we've done here is shown that the elements of rule twenty three are satisfy both with respect to the medicaid claim and with respect to the constitutional claim and that with respect to the medicaid claim it's the same calming questions that give rise to the constitutional claim also give rise to the medicaid claim i i wonder if we take your argument at full breath why you need some classes all the sub classes and the medicaid sub classes are children that are just entitle to medicaid which is almost overlapping with the main class i mean something some very high percentage ninety plus percent of the children in foster care are entitled to  medicaid but for a child who for some reason is not entitled to medicaid that wouldn't be part of part of the class is this confused me too because if not everyone in medicaid i'm sorry if not everyone in foster care is entitled to medicaid then it would seem like you need evidence found that all the children report of each of the sub classes they aware of but even in the allegations or anywhere where what can you point me to i mean it to have standing for the medicaid claim they at least need to be eligible for medicaid where is that i can the page but i am certain that that that was in the record and supported in the record and the judge found that all of the name plaintiffs are members of the general class and of the  the last thing i will say on that which which i'm almost finished is that it's also very clear that for  the at this stage of the proceeding standing is determined based on the pleadings it's not a summary judgment motion and i didn't see an allegation in the complaint about that so it would be could we will do that your honor and my time is almost up so the last thing i will say is that as the court is aware this case has been stayed pending the determination on appeal the children in foster care are continuing to suffer harm we've updated reports that are in part of the record here and we would request is there any remedy that comes from the medicaid part that doesn't come from the deliberate indifference other part of this case the remedy would be the same it's a lower standard of proof that we don't have to prove the liberty in difference we just have to prove that the statute has been violated and let me just for clarification why court can and if the court's is cleared up to lift the stay that was to stay effect this case or does it affect the services that are being affects this case so it we just we just filed an opinion within the last few months criticizing district court judges that are coming up on a temporary injunction and staying all proceedings until we decide what we think of the plenary injunction very very direct about that so i anticipate maybe they'll be some changes where we can move forward with the real action because even if we make a decision on the law it's it's not necessarily binding we've made that completely clear in our prior cases so i am a little concerned about if we have something that is serious at the time that we spent a year coming up here to the trial and not getting to the real issue but thank you doctor and in support of those statements they keep directing the court to katie and i would encourage you to read it it does sound like that even if a state delegate it's the responsibility to provide treatment to other entities such as local agencies  ultimate responsibility to ensure treatment remains with the state it sounds like that's right and judge to you know when you go back and read that decision i mean he was not necessarily interpret ing what exactly  what medic the medicaid act requires if you look at where that language is in relation to the if you know if he s d t discussion which is right and i would i would just go back to the actual statute i mean the statute says what it that they're provided the treatment sure they have to and they have to ensure that it's available here it is but to suggest that that that a case manager can go to a house and take a child and force them into a car and drive them to a doctor's office to ensure that they get treatment that's that's ludicrous and that's not what's required of the statute if you look at the statute it says a state plan for medical assistance must quote provide for making medical assistance available that's thirty nine hundred six a eight  ten thirty six ninety six a forty three says that they must quote provide for arranging for the corrective treatment so it all goes back to the statute and whether you want to frame it in terms of  that they have treatment or are sure that they are provided treatment that's different from saying ensure that they actually receive the trait the treatment no matter what i mean they simply don't have the ability to do that the second point i'd like to make to make is the standard for the level of proof of this point we're not arguing that they have to to to prove that they're going to succeed on their claim ultimately at a trial we're just we're simply arguing that they have not satisfied their bur at this stage and and this is a quote from the hell burton case that plaintiffs wishing to proceed through a class action must actually prove not simply plead that the proposed class satisfies each of the requirements of rule twenty three that includes commonality that includes typicality and you asked plaintiffs counsel where's the evidence where's the evidence and he simply referring to his complaint or the order in the order cites to the complaint they're nothing but allegations and i hope if he if he does submit or point out where in the record of the evidence is we have we have an opportunity to re that i think if you look at their answering brief they say where they say they think it is and they are they cite back to the statement the case in the statement the case cites back to the order which cites back to the complaint but again they were this court is reviewing for an abuse of discretion and that's based on the evidence that was presented at the time that they filed their motion that's the only evidence that judge silver had before before her when she ruled on this motion that's all that this court should be considering finally on commonality i'll just end with this that the glue that existed in parsons is simply not