involuntary discharge young voluntary discharge notice in this case was filed under the federal rules and claimed as the reason that she has failed after a reasonable and appropriate notice to pay for her stay at the facility she was at all times relevant approved for medicaid it didn't happen until july the fifth of the following year but that's the way medicaid works and there's no question that she had paid all over residential care credits or residential obligations during that whole period of time so that the real issue comes down to this is whether the facility can arbitrarily assign her to a private pay bed and just because she's not in what they call a medicaid certified b charged her the nearly a hundred dollar a day differential rather than just accept the medicaid rate which the law requires that they do not only does the law require that they do their own contract spells it out very careful of federal regulations cited in the notice for which they are going voluntarily discharge her was only cited in part it goes on to specifically state and hold for a resident who became eligible for medicaid after admission to the facility facility may charge a resident only allowed charges under medicaid that's precisely what happened here the facilities on contract conforms to the law and paragraph six and eight they both assure the president first of all the parties are going to take whatever steps are necessary to qualify her for medical assistance and the facility acknowledges that the medicated ministers are the ones are going to decide how much is due once the medicaid application is you how does this letter that was dated april twenty second of two thousand and nine from the bureau long term care how does that impact you now says i know that that is sad if they're not in a she and everything would have been fine so your position is because they fail to do that then they should suffer the losses which are so correct they it's it's sleight of hand actually just keeping her in a private pay bed there's not entitle them to collect from them if there's a medicaid bed available and they're clearly wasn't capable of it available and they never took up our challenge and demonstrated that they could not have reassigned beds and the contract even goes on to say that the facility won't even accept sums beyond what the medicaid reimbursement is of allowed by the medicaid to sell it in a contract is a little dated it still refers back to the old illinois department public aid which doesn't exist anymore and it's now department human services that makes the terminations we have a separate department here the department of public health that actually hears the hearings that the involuntary discharges so we're talking about two different agencies i know that th department never did file anything and never did try to justify this decisions they just left it up to the facility to come in and to argue that the law was complied with so we're we're down to just the very important facts which are admitted by the facility that she was assigned to a private pay bed for the entire can test the time the facility reserves the right to itself to assign beds and secondly that the administrator admitted that there were certified medicaid beds available and that there were private pay residence and medicaid beds at all times during the process and if you recall the administrative law judge who heard this case specifically kept the record holder as she must to receive the final decision of the department human services on the medicaid application which was received i think on july the fifth then at that point the appeal of the department through the department of human services hearing division was withdrawn because the seizure was correct and i know that it was to the penny of what the spread sheets of the financial advisor  indicated what her obligations would be that was the final decision which is a ninety nine bad faith based skilled and intermediate care facility each of its ninety nine pads as shown on the chart are certified for medicare medicare as you probably know is for individuals who are elderly and it does provide for some short term nursing home care for skilled here for some residents and misled like i was dull exception she was in rome as it's mbalula twenty two a which was a medicare certified bad she came in under medicare part a medicare says are often short say short term states it's a it's a misnomer to think that everybody who goes into a nursing home stays forever they don't some people intend to go home she was assigned to a medicare certified bet it's important to understand the interplay between medicare and medicaid in order to understand the fallacy of misled because argument sixty five of the bats at holy family bella were also certified for medicaid medicaid as title nineteen under the social security act and that's a sign for individuals of low income and of limited mea explained by the core investment versus department of human services which is cited in our brief us the medicaid act it expresses an intent by congress that individuals arcs expected to deplete their own resources before obtaining assistance from the government misled because did not to please her own resources before painting assistance from the government she used a tool which is an annuity to put her money into an annuity in order to qualify for medicaid and that was legal that was legal however she didn't tell the facility that she was doing that she told the facility when she came into the into the facility that she had approximately two hundred forty thousand dollars  because own theory if individuals who have money to support themselves shouldn't be put into a medicaid certified bed that she is a person who should not have been put into a medicaid ser back moreover as your honor noted the letter from the department specifically says that medicaid is not going to cover her stay while she's in that role she knew that she knew that not in mission she knew that when she signed a private paid contract and agreed to pay the private pay price she also knew that when she when her friend joined kaminski who was her power of attorney went to the facility to inquire as to filing a medicaid application it was in february that she filed the application for admission and approximately two months later in march that she was admitted to the facility as a medicare part a she only stayed on medicare party for about twelve days and then in april on april tenth she signed a private paper on tract she applied for medicare using individuals outside of the facility in september after she sold her house for one hundred fifty six thousand dollars and that was her application was submitted down here in september two thousand and eleven it took a little while for it to be to be approved but during that entire time there had been many conversations and she was notified in writing at least twice that she was not in a medicare medicaid approved that she could have waited she had a lot of choices to wait for what she could have waited until she was transferred into a medic you bet she could have gone to another facility where she could have gotten into a medicaid approved bed she could have held back some of her money in order to pay for her stay until she was admitted into a medicaid group that she had a lot of choices as to what to do with her money at that point time other than put it into an annuity to make it unavailable for her to her care at what point would you say the facility was aware that she was applying for medicaid and my question is did the facility do all they could to get her into medicaid i do believe that she knew that the facility knew about the same time that she was applying in in september that she was indeed applying over is really not unusual for individuals to apply while they still have money and then their approved subject to what they call a stand down and once th the money has been spent then medicaid kicks in what she didn't tell the facility and that's critical is that she was buying this annuity so the facility had no idea that she would be unable to pay for her care just that she was applying for medica medicaid june one by that time she hadn't even inquired of the facility regarding medicaid application she had over two hundred thousand dollars in assets and yet somehow the facility was supposed to know if they have a point in time that she needed to be in a medicaid certified head it defies logic she was one of the people that that she would she would argue that they shouldn't have ben in a bad because she was a during that period of time so that is not in the records moreover the facility can't move individuals in and out of bed simply for somebody else's convenience there is a trauma associated with any bed  change for the residents particularly those that have been there for a while and have established roommates so it's not a simple matter of just switching up the beds once of that came available she was transferred in it and she had to wait her turn in line two and it says for a resident who becomes eligible for medicaid after admission to a facility may charge the resident only allowable charges under medicaid what that means and we facility for the unskilled or the intermediate care facility which is the medicaid service here e the the definition for facility means in this particular circumstance the medicaid facility the definition actually says for medicare and medicaid purposes including eligibility coverage certification and payment the facility is always the entity that participates in the program whether the entity is comprised of all or a distinct part of a larger institution the medicaid portion of the institution was a distinct part identifies exactly which beds are medicaid certified and the facility has no power to change that so you could not make a pit in the yellow section you would not be able to make that a medicaid bed not under the certification that they have they would have had to go for a new certification in order to cover just mary's life ika and since she was admitted prior to the certification if it would have taken by taking effect at least until the it's based on the location of the room it's the bad actually not even the room each specific bat has a specific certification it's just like if you have no insurance you're insured for dental care  say but if your dentist doesn't take that no it isn't going to pay for your care is the same thing here she had medicaid she could have gone to a facility where they had a medicaid search that available she was entirely free to do that the entire time she chose not to if she chose to stay there she also could have waited until she had gotten transferred into a bad at the facility before applying for her annuity but the difference between waiting for her is the beneficiary if she july when ms kaminski spoke to her and spoke to the facility about applying for medicaid they sent a letter and that's also in the appendix i'm sent a letter to her reminding her that she's not a medica but certainly in that letter again in november it was written on one of her past two bells and there were other conversations between the parties as well moved out of the medicaid that's undisputed so she had she had a choice she chose to purchase the annuity and to make her friends on available but that was her choice and this is consequences purchase the ability she would need to be one of the oh mother care rules she was out she would have was on the waiting list to transfer into a medicaid certified bad so she would have eventually gotten into her are you still taking the position that this is moot at this point because we know that everything was paid she was not kicked out of the facility correct and and it is our position that the case is moot but i understand your initial rulings and and we're not going to reargue you have a point ultimately even if she was transferred out of the facility it's not like we were going to kick her out onto the street she would have tramped been transferred into another facility that had medicaid certified  bailable where she would have gotten all the care that she required it just would have been at a facility where the facility would be paid rather than you know here she had the unpaid balance that accrued and fact during the two months between the time she transferred into the medicaid certified bad on only look at that point in time she was properly discharged because she wasn't paying the amount that she was required to pay even under medicaid when she was charged the medical through medicaid established you i appreciate councils forthrightness about the fact that the certification is of the bed not the room because this chart is misleading under here but in medicaid rules the help can't even know who is in a medicaid bed and who is it not so that they can't discriminate in most those people so it's simply which bad are you relying on so there wouldn't have been a thing in the world wrong for them to take one of those private pay ph patients out of the beds and presumably the  roommates nothing would had changed just would have been a different bed presumably some time when they changed the sheets that would have taken care of the whole problem secondly the annuity and i understand the facilities  because it was a newly purchased but the idea of them in the annuity which was perfectly legal is that you take your assets and you spread it out over your life expectancy as a stream of income all of that income went to for her care and as we demonstrate in a reply brief had she been able to go home and some point as she said she would have had some assets left over if she had had not lived it if not she lived her whole life expectancy the state of illinois was going to save about seventy five thousand dollars because she was not exhausting all these at this three thousand dollar a month differential exhausting her assets so the ability and we included in the appendix was a transfer for f market value is perfectly acceptable it was properly done she had a right to control her own assets and her own financial dealings and she did with that the suggestion that somehow or another the facility is only this so why the letter if it doesn't matter where in the silver that the letter wasn't specific to the skates just had to do a sort of patient a pair of the applied and said you know look we want to drop some of the beds or increase the beds or whatever happened to just the letters a choices what she did have some choices and she exercised image exercised them lawfully but the facility also had a choice to put her in that medicaid bed when they know that she was applying for medicaid as a knowledge then in september the next month the administrator wrote right on the billing that's in the record in the appendix also she's not in a medicaid bed that doesn't mean she shouldn't have been in there it's just that you know that's a recognition that there's there's a process going e that but the administrator said yes we had private hate patients in medicaid beds that meant they had the opportunity to do it and therefore any adverse effect should fall on th