may please the court the medicaid act requires for the state and the federal government to jointly agree in advance how much to pay for each of the hundreds of different medical services medicaid covers of necessity t carefully calibrated rapiscan to ensure every service will always be available to every beneficiary and here despite the state's extensive efforts no provider is willing at the current rates the furnish karen bond with home health care services even though she's eligible for medicaid and even though medicaid covers the services so could i and was awesome mr hudson this is probably a very simplistic question but this is a complex program i wasn't one hundred percent clear why the state takes a position that hatching together two or three such programs would not in the aggregate meet its phones needs it seems that the district court at or was possible and i would just like you to explain to me why for instance she couldn't have you know sixteen or eighteen hours a day of ordinary medicaid services and the rest under one of the state's own program such as choice i think there are two important points on that your honor st with respect to mixing and matching different medicaid programs the state certainly has no opposition to that that's something that happens with some frequency for example having a state plan just the normal state medicaid plan covering a certain number of home health care hours and then the aged and disabled waiver covering the remaining hours that something that happens with some frequency that it's not opposed to that what the state is opposed to is using the choice program which is under state law specifically barred  from being used to cover services that medicaid it self covers now i want to draw a distinction and i think this is something that the district court may have missed under state law there's no problem using the choice program together with medicaid so the choice program can be used by medicaid beneficiaries there's no problem there but when medicaid covers a particular service here at home health care services state law bars using the choice program to pay for those services and that's that's a problem here and i think crucially it with respect to the choice program ms vaughn never included in the comp or request and her and the chalets even before she filed a complaint that the choice program be modified in some way to allow her to use it that claim was not presented of her complaint nor was it at all a summary judgment the choice program was raised for the st time actually at the remedy hearing and so the program is a red a much broader injunction to play around fires the state council this is george eastman i want to make sure that i understand what you just said because that was one of the important questions for me whether it would be lawful for the district court using twenty eight c f r thirty five thousand one hundred and seventy seven little lie to order the state to permit the use of on skilled providers as a reasonable modification under that regulation and i understand what you just said to say yes that would be a lawful thing but of course that's not what the district  honor i want to make i want to make a crucial point of clarification in the states you that would be lawful as a matter of remedies law now the state thinks that that would still be unlawful because to such an order would be will be unreasonable it would constitute a fundamental alteration of the program under that regulation but there would be no problem as a matter of equities law with with issuing a narrow injunction of that order  e i understand you might debate whether that would be reasonable but one further question about that possibility and i will then ask ms edwards whether the plane it was still making still asking for  that what rate of reimbursement with the unskilled providers be reimbursed if they would be reimbursed at the on still break and i don't have that directly in front of me  jumping around a bit but back to your point about the scope of the injunction in some ways the problem with this injunction isn't that it's too broad it's that it's very specific and so you would think that perhaps the state could be held in contempt if if a service was provided thirty minutes after the schedule that the district court seems to have cut and pasted from from the record  and i think the district court was trying to say the state is in joint to allow her to receive her benefits from the state in a home setting and maybe there's more than one way to do that and i don't don't think she wanted to tie the state's hands so i find it a little curious that you seem to think that an injunction that just said she is entitled to self correct her care and she is entitle to be exempt from the state's otherwise existing licensure requirements and requirements you know for example the ventilator care has to be done by somebody with certain qualifications and those sorts of so i don't see why the injunction is unclear to the state whether it's something that is within the scope of of indiana's medicaid programs a different question whether this is just such a major shift from the program that it's a fundamental change and shouldn't be ordered is another question i think what two things on that you but st there are there are key separate problems with the injunction and neither of them have to do with the lack of i'm facing us the st is the over breath so the there were two justifications for the injunction a failure grant two specific modifications to an injunction and as this court has repeatedly held the injunction cannot be brought in the legal justification for a century and the requiring the state to go beyond granting those two modifications  that that has nothing to do with with clarity so why not so i can just ask i just ask though i'm reading the district court's opinions as a whole it seems to me that all the court was trying to say was that ms vaughn is entitled to receive her services at home and the state isn't joined to put her in a home setting with appropriate care and i thought that reading that injunction it  was simply saying if you want to know how to comply here's one way but you're also free to comply other ways to and i don't know why that's broader than what she was asking for she just wants her services at home  right no i don't think that's right your honor i think there are two important points here the st is that there were only two theories under which she proceeded and those were the two modifications you mentioned earlier and i don't think the differ court went further in saying that she has an absolute right to receive these home health care services period and if the district court works who have said that it would be wrong be eighty eight does not impose an absolute entitlement that this court noted and  other its other eighty eight cases the a d h merely requires the state to provide the modifications if they are one reasonable and two don't constitute a fundamental alteration and there were two such modifications that issue throughout this case and that the district court rested its decision on its conclusion that those two modifications were reasonable and would not constitute a fundamental alteration and a longstanding rules of equity say the district courts cannot go any further than requiring the state to grant those modifications it would be different if the a b a did impose a categorical requirement to provide home health care services no matter what disabilities as a form of discrimination where segregation means that you can put in a nursing home or you're you're not in a community setting so doesn't that impose on the state a pretty strong duty to avoid that type of segregation if at all possible your honor i absolutely agree i think that's right but i think the crucial point is that the a b a prohibits unjustified a segregation and it defines unjustified segregation as segregation that can be avoided if by reasonable accommodations that is accommodations that are both reasonable and don't constitute a fundamental alteration so that's that's the crux of this case and  comes in they say i would like to i'd like to receive care in a particular manner in my home or out in the community and the state regulations are prohibiting me from doing so preventing me from doing so in some manner and i'd like you to modify them in a particular is there were two modifications that issue here and even if the court were to agree with the district court that the state should have granted those two modifications the injunction should not have gone further than for acquiring the states to grant  issues forever going to be under medicaid or does there come a time the state transitions care over to the medicare system and does that make any difference here i believe your honor that a ventilator the care will be shifted to medicare but i unfortunately or i can't confirm that i can i can try to find an answer and get back to one rebuttal on that that's ok i mean i'm just trying to figure out if she's been if she's been getting care for forty years i was just trying to figure out how old she is whether this is imminent or not now under understood yes and i think it's it's worth pointing out that she she began at a she'd been receiving  began needing a ventilator at night and that's when that's when things got a bit more complicated she proceed home health care until two thousand and fifteen and her october th being her home health care provider stopped providing  hospitalized for pneumonia in january th teen she's only in the hospital for a week the entire system seems to fall partner it's hard for me to understand how indiana was keeping her at home the provider so that very same month and then in february state officials called fifty six different providers trying to find someone who would provide care and none of them were willing to do so and it appears that the principal problem was that most of these providers simply didn't have the volume of staff necessary to commit and as that takes me back to the question you know why did why did it have to be through one point i will also just as a courtesy tell you wou indicate it's five minutes for rebuttal and you're down to four minutes at this point so it's up to you if you'd like to know is a good time i think your honor if if the court doesn't have any questions at the moment i'm happy to preserve the rest of my time rebuttal i hear none so that would be fine thank you so we will turn to ms edwards  don't want to take this case i don't see some point they don't have the power to compel service that the state does have an affirmative obligation under the a b a to provide for interim services and it's certainly within its own power to design a program that will ensure there are providers for and programs that can two things the state could do one was permit her to have self directed care using people other than registered nurses the other was to raise the rates and i assume that a high enough rate it's easy to attract here the nd of those was highly problematic under armstrong and the district court didn't do it at least expressly and the mr gore didn't do the former either  possibility at all i don't see an argument in in the brief about self directed care about what it would mean concretely about what kind of providers would be entailed what kind and the rd part of my question is wrong willing to waive liability if the use of semi skilled care lead to problems or if you want to come back and the answer is yes word one thing that concerns me is looking at the place where this case is right now it seems to be in an unsustainable posture so the state used mechanisms to check with it's with with the pull of providers it knew about now maybe that was too narrow a search maybe it wasn't but they did certainly contact a lot of people and they did numerous times and they came up with nose and so they are now as i understand it simply contracting with purely state funds with this company tender care and at a very high expense to the state which may be fine for ms vaughn but if you generalize if you say under the medicaid act and under the a b a and rehabilitation act the state has this obligation that suggests to me that the medicaid pay caps have just gone out the window that there is in fact no meaningful kept that the state can put on what is willing to do and that's of great concern to me after armstrong and the other cases that we have and so you might just say well it's fine for miss vaughan but the state needs to think about the the the legal regime under which this is taking place  and that worries me the armstrong concern i would like to point out that certainly armstrong is about a different provision of the medicaid act it's about a thirty a a not a eight which is the the the person in summary judgment the state really hasn't said much of anything at that point they look at one policy manual and did did very little to explain to the district court what  problems were that it was facing what it was trying to deal with then by the time you get to the remedy stage the state has stepped up to the plate and it's brought in quite a bit more detail so the record we're looking at the remedy stage seems to me to be a much more complete one and so one of my procedural questions is do we take the record as it finally was once everything was said and done it the remedy stage or do we evaluate the decision to grant some kind of injunction based only on what was presented at the summary judgment stage your honor we would argue that the thank you as an obligation to defenses now that that about fully developed as a summary judgment stage but what do you do with the fact that our review at this point is to novo summary judgment the injunction you know there's there's a discretionary aspect that's certainly to the basic obligations were decided to a matter of law and i actually take the point that if the state just as well their policy not to do this that's a pretty weak response if the state as it now seems to be doing is pointing to aspects of the medicaid program itself it's pointing to regulations it's pointing to the power of c m s to approve or not various aspects of the program i'm not sure where do you think the district court can issue an injunction telling the state to go back to c m s and try for a different program or whether you're just saying the state needs to act outside the  the medicaid program altogether but certainly the law is laid out in much more detailed this point i think that the the district court's discretion in the in her final and law in the remedy phase sort of indicate so where she goes where she was on what the states have presented and also i would say correct the appreciation that this is about two individual a failure to do anything more or try anything and i think even the remedy things the judge cited the bureaucratic quagmire the state presented and the failure of the state to even really have a meeting to help figure out why cannot get services and frankly instead they think like home people i think even at that stage you know there was more information presented about the various programs the state had available that almost in some ways worked against the state because it said look there are all these other things to state could be doing and it's still not doing that thing therefore the injunction is almost in some ways more necessary now because the state acknowledges it to be doing a lot of other different things and it fundamental changes in the program are beyond the scope of the state's responsibility and there is some reasonableness constraint on what state can be asked to do yes your honor but the state with the brown versus district of columbia trying to do that if i think does not have a functioning own fed plan defunding alteration of the fence if you draw a very narrowly and therefore it's a very high bar for the state to meet that if they're not already showing that they are didn't even come close to showing any type of defense as required by style in terms of showing that somehow services or other resources would be taken away from people with disability which is that rd prong which is and there's no real evidence that the fate of making that point so it's your position that it's inherently on reasonable for states to say they will pay only if appropriately licensed and qualified medical professionals are providing care i mean just just all part of the guild and we should ignore all of these qualifications requirements whether it's for doctors or nurses or lpn or anybody else you know your honor as we indicated in our brief by until caregivers so that i can go home and here is evidence from my position that i can have people who are training to do the things that i need to do through their seven game show and  so i don't think it's you know certainly for a lot of people they would not walk until caregiver to be providing their care and that is something that should not be ever forced on anybody but miss vaughan is saying if you go home i will i will i injunction just said the state just enjoined to permit miss vaughan to use on skilled caregivers that be enough here i think it certainly is an injunction that what has come out of this change but i will also go back to the district court sort of description of what she was enjoying which was the failure to provide   she was walking in their own mind the state had already said no to an injunction that was similar to this court injunction and it will be versus nor would that that that was that was to that was not acceptable and they had said no to many other ideas from this point but had some of the no ideas out there and so i think the court was walking in there a line in trying to protect the state's interests and their institutional forty two understand their own programs and at the same time to correct a wrong done to the songs by her  and the state failed an affirmative obligation to help her receive the services in her own home this is not about amount of services or anything else as the court in rochester identified that when the question medicare the miss bawn will be duly eligible for medicaid and medicare once she becomes eligible for medicare but medicare has limitations on long term care coverage so it is likely that medicaid would be process this court appropriately recognized the no b that armstrong stands for the proposition that the medicaid act by providing a judgment laden and complex rate sitting rate setting procedure bars federal courts from interfering in a race that process and that's precisely what the just reports injunction does here and whether a court orders the states to raise its medicaid rates and use medicaid funds to pay more for a service whether it orders the state to use general funds or whether it orders the state to use special purpose funds like the choice program any any one of those orders is effectively requiring the states to pay providers reversed the district court's injunction all right thank you very much thanks to both counsel the court will take this case one hundred