good i'm going to go without afternoon boarding on behalf of appellants i'd like to reserve three minutes if i may this in the in the nursing home reformat congress gave residents the right to be immediately readmitted to the first available when they've been hospitalized to secure that right congress required states to provide residents with a fair hearing that comports with the standards that are established by the process that the state provides is not a fair hearing because the result is for damned if the resident loses the hearing there effected or if the resident wins the hearing as the appellants did in this case a bit they've been evicted before the hearing even starts having that is that isn't that right if the hearing is like an appeal maybe i misunderstood that but i thought they had already lost the bed by the time the hearing happened and the question is reinstatement well they they don't under under the law they're supposed to reserve the bad for seven days and that's called the dead hold but by the time the hearing is happened isn't it passed that it's passed that but then there is a write in section c to d three of the statute that says you get apply but i don't understand this to be about that exactly well it is an addiction because what's happening and i don't know what difference it makes it's about readmission right it just i mean maybe it was a quibble with just your wording i was just confused because i think that hearing happens after they're not in the nursing home already right there are these individuals were in the hospital and they had a right to be readmitted to return home but they were effectively evicted and kicked out of their house because the facility would not take them and the state would not enforce the results of the hearings that they won so what is the remedy that you think the state is required to give the remedy is that they have to enforce the results of these hearings otherwise the hearing is so it seems to me just thinking about it one way you could do that is if a nursing home has say three violations in these hearings they revoke their license another is they could give them a fine another is they could order them to put the person back another is they could have a state court case where this is precludes  there are lots of ways you could give effect to the hearing and i'm confused about which one you think is necessary and how we know that it's not vague under blessing sure so for example district courts issue orders and they enforce their own orders and people understand that you have to follow an order by just record there's not much of an enforcement proceeding at all but people know that if you violate a district court order you're going to incur a series of escalating consequences until you follow if i just pick up and then are we at that point in this case i mean well i mean i maybe we are in this famous notion but the the first question i mean in the the language about the hearing uses the the word right in the stature right your argument really is about what is a fair hearing present include and enforcement mechanism of some kind correct as a result have to be meaningful but but the reason why the district court held that you weren't entitled to even get to that question is he said there was no right and there's at least a right to a fair hearing absolutely correct your honor but if that was so we had to say we agree with you that the just report was wrong and there's a right to a hearing you had a hearing and in fact won the hearing and so it seems like the real dispute here is about whether you have a right to a specific enforcement mechanism and i'm struggling to figure out where there's anything that's not vague at least vague about that in the statute or regulation because i don't really see where it's spoken too well there's two parts of that one is th having meaningful result is intrinsic to the idea of a fair hearing it's not fair or if my clients win and they still lose right they win and they lost all the property interests the hearing supposed to pretend i agree but maybe that means you have to lobby the state and which i know you've tried to do i mean maybe that means there are lots of things that could happen but how we as a court have a specific thing that we're supposed to order to happen order the state to do a specific thing i'm having trouble figuring out where we i read what i'm supposed to do here two parts of the answer in this and this really goes back to your first question to judge for the end is the enforcement you don't have to specify you have to use measure x y z you just have to it's a very objective thing correct they have they have divided the agencies responsible for the hearing so they have one agency a department of health care services that provides a hearing and then they've taken the position that their jurisdiction and after the hearing and and then they have a separate agency called the department of public health which is kind of the enforcement wing and department of public health has issued a memorandum which we've attached to the complaint in this case and the memorandum says well since we're not at the hearing we're not going to be bound by anything that happened at the hearing since we weren't involved in any way and so the hearing means absolutely nothing it's an advisory opinion that doesn't even get follow what if you try to go to state court and hold up the result of the hearing and say it's already been determined that we were kicked out wrongly i want damages from the nursing home can you do that i mean it seems like you should be able to do that can you get precludes a fact from the hearing result and get money for every day you're there's no law that enables a resident to get damages under state law for every day that they're not readmitted the way the law works right now they can get an injunction the problem with the injunction spirit and i believe that the state's position is that you can take your your winning the hearing and go to state court and then try to use it to get an injunction we i mean they won't they won't you that's the problem or and or is it that they simply say this piece of paper is worth nothing because it is not in our view binding determination as to your rights well the right to be  is that you end up getting an appeal and you're years from getting readmitted and if the goal of this statute is to make sure that people don't suffer the transfer trauma they don't get separated from their families many one of my clients passed away will this appeal was pending that's what happens if you don't have a mechanism like the one that congress created which is a fair hearing that is designed to get immediate readmission to the first available bad  regulation actually talks about corrective payments but you didn't really talk about that and i'm very confused why you didn't and what that provision is about and who is supposed to make those payments sure so this is this regulation doubles so it serves two purposes one is under a three medicaid act so when people are having disputes over their reimbursement or payments they use the same hearing process to get their payments so and this goes to the second part of your question you know what is the what is the enforcement where does that come from ether the statute itself says that the state has to provide a hearing that is that complies with the guidelines and stablished by the secretary the guidelines established by the secretary says that the state house to readmit people as a result of these hearings in the state house do well it's unfortunate that you have a right that the hearing and the agency that's that's who the regulation applies to must provide for admission or readmission to an individual of an individual to a facility if a the hearing decision is favorable to the applicant or beneficiary and then they have the letters the repeated letters from c m s sending to the state and this is one of them is that three forty eight it says c m s cannot advise c d p age and that's the california department must promptly make corrective payments so you're saying that doesn't apply here that's about benefits but that is something where it's the state would really make the payment but then it says skipping about the payment it says and if appropriate provide for admission or readmission to a facility but i guess i'm not quite sure what the what you want the state to do exactly because they're not the ones who are actually they don't actually have the bed themselves right but they've got a order just like a court i mean you if you enforce that order then the resident will get readmitted if the state doesn't enforce that order the residents are never going to go do you want the state to bring a lawsuit to revoke that license i mean what is the state supposed to do the state has listed in their brief about seven or eight you know awesome and foresman powers that it has it could use any one of them or all of them or use them in a series of consequences like a district court would it's once you tell people that these orders are going to be enforced and that they mean something the resistance to following them is going to fall away if you know at the end of the day there is going to be some kind of painful consequence so what do you think we as a court should write and what i mean what are we going to quote to say exactly what we're trying to say they have to do they they have to enforce these orders they have just vaguely we you have to i mean so that's all we have we're supposed to say you have to enforce these orders you have to use the police powers that are listed in your brief and take all steps necessary to ensure that these orders which are the only way these people are going to get back into their homes are enforced otherwise  this this whole ability to be readmitted to the first available that is a dead letter there is no other method that works it is a it is an untenable construction of a statute to say that you have to provide all this due process you have to have an impartial decision maker and and the ability to present evidence and the ability to be represented by counsel if at the end of the day the result means nothing and that is the state's interpretation of the structure and there's plenty of wall in our briefs about how you do not construe statues to frustrate their purposes in in all their briefing in here and below you've never seen anything that explains why congress would create an entirely meaningless process that's actually more detrimental to residents than it is helpful good afternoon may please the court deputy attorney general who are stanton on top of the secretary of the california health and human services agency i would like to answer the court's questions briefly i will state that the state's position is not that this document is meaningless nor is the hearing itself meaningless as opponents have argued but i do want to take a step back and talk about what is the question before the court right now the question is whether appellants have a private right of action to compel not a private right in action and action und which is under a provision called right and asked for which there is a provision in the statute that says that you're supposed to notify them of their right to appeal is in fact under forcible ninety three ri and the question is what does that include and their argument is that it includes hearing a fair hearing is one in which you do x y and z and you get an enforceable  enforceable result that's my understanding of their argument and my understanding is that it just report sort of rejected it stage what you said there simply no enforceable right to a hearing period but you're not arguing that i'm not arguing that and i understand that's your honour's perception of their argument here what i'm hearing from pilots today is very different from what i've heard well fine but well here we are well i think it's a very important point and that is what does it mean to compel the state to enforce the hearing decision in section of the state of the federal nursing home reform act which opponents are very dismissive of congress was very specific about the enforcement mechanisms that the state agencies need to apply and that the federal agency needs to apply to ensure that facilities comply now it is under speeded that residents of nursing facilities have a right to have a hearing when they seek readmission to a facility from a hospital that is undisputed and each of the individual opponents had that hearing now what opponents now are is this record didn't agree but we're putting that aside for now is what i understand you to be saying it's without dispute each of the individual private you had to just record thought that wasn't right but we should just move on from that i think is what everyone agrees at this point because the district court seem to think there wasn't even a right to a hearing that there is no enforceable right here at banks a very important question the right to a hearing arises under thirteen ninety six a which opponents did not cite opponents rely on three statutes to contend that one read together those create the right to a hearing and the right to enforce the hearing and the right they allege to compel the state to enforce the hearing now our position is that that cobbling those statutes together is by definition not clear and unambiguous so what do you think should happen with the result of these hearings so the he aring decisions themselves are to our administrative hearings between the resident in the facility the state is not a party as it is in the state the decision maker so the office of administrative hearings as part of the department of health care services they provide the hearing officer but the dispute is between the president and the facility right but then the hearing officer who is part of the state makes a decision and in this case ruled for the patient so then what do you what is your position about what's supposed to happen then so our position about what's supposed to happen then if the facility does not comply with that hearing decision is there are number of of options the president for example can make a complaint to the department of public health to investigate to say i have a hearing decision the facility did not read mid me despite the hearing decision my understanding at least that's the allegation and your brief that is that the state understanding is that whatever route they take this result is not a binding result another words that the agent the agency for example does not have to take the decision in this hearing and go forward with it and it starts all over again is that not right it is correct that the state's position so why do why don't they at least have the right for the state as part of a fair hearing for the state to take the result of that hearing as a conclusive determination  position that this is a binding result for the state for the purpose of just siding even if the state has just question whether to enforce something or not is this at least a piece of paper that that you don't start all over again and say well we don't think in fact we've now looked into it and we disagree with what the result of this fair hearing and my understanding of the state's position is it's this piece of paper is not worth anything is that wrong that is wrong  state's position is that if it is a it is a worth worthwhile hearing it is the necessary implement before a final next step happen all right but if the state by the result of it the state is not a party to it i don't stand but look the state can't be found by the result so your answer is no that's your that that the fair hearing us in the statute is not binding on the result of that it's not binding on the state for purposes of the state's determination whether  the state's job here under the department of public health is to investigate if a facility does not comply with the law the state's enforcement powers are delineated by congress in the statue the state has additional in foresman powers under california law so the state if there is a dispute as to that piece of paper that your honor is referring to there are many options the party can take it as it may with any administrative hearing that it can take a writ of administrative mandate to a superior court here however california has express created a private right of action in state court that has your honor asked earlier permits the resident to go to state court to compel immediate reinforcement in monetary damages and attorneys and force based on the result in this hearing that yes yes but based on the results of the hearing there is not a mechanism for the state for any state agency to take that piece of paper the administrative hearing document and go to court to enforce it now what i see court i mean so is your position that the state court is part of the state and that's your enforcement mechanism is that you're supposed to take this piece of paper to court but so what we push back on in this lawsuit in this litigation the opponents have consistently contended that the remedy they seek the right they allege was violated was that the state does not enforce the hearing decision that is correct the state does not enforce the hearing decision in the sense that the state neither no state enemy makes a minute mission or read mission determinations nor does this is the state required to take that piece of paper to court and enforce it that's a day does have forced mechanism absolutely and the what i'm trying to hone in on is for the purpose of deciding whether and how to use those and forstmann mechanisms is the state bound by the result of this hearing whatever the enforcement mechanism is well the state would take if it's a complaint that the facility is violating the law and i would point out that on the record it is not clear that every time a facility does not readmit despite a readmission order it is not clear that failure to readmit would constitute a violation but the state is bound by that determination if a complaint was made by a resident to the department the department will investigate pursuant to its authority no not taking this hearing into it and that taking the result of the hearing into account well the complaint would be i have a fair hearing that s and the facility has not readmitted me and my understanding of your position and can tell me if it's wrong is that at that point the state doesn't say all right we're going to now look into whether this is a feasible thing to enforce or oh we have the resources or something else but we're going to start from scratch and just side whether in fact there actually was a violation is that the truth or not well the state of it i think i would push back on the statement starts from scratch in other words there is the decision but the department has to investigate broader the admission hearing is a very narrow hearing that addresses perhaps an issue as to notice did the facility provide the individual with notices to the but hold the hearing officer confines no  not provide the notice therefore the resident readmit but so how in the subsequent thing that asking whether this was a lady is violating the law don't you have to say that if they already were determined that they didn't give the notice they had to give by a law that they violated the law on that point and not point and citations could be issued and fines could be issued and there are multiple enforcement mechanisms however and so i think they're alleging that or maybe there's an understood maybe one of the understand is of your position is no we start from scratch figuring out whether they gave the notice properly would that be what you do you start again to try to figure out whether there was a violation well what i would like to say is the hearing decision i needed to say yes or no so it's are they from say a piano a body says they didn't get the notice that was required by law now someone comes and says i'd like you to enforce against this nursing home that's violating the law do you take for granted that they have this violation of the law because they didn't give the notice or do you start again as the file i think you can take it for granted but what i wanted to say in other words you can take the hearing decision as a final administrative hearing that is the type of final administrative decision that but then that is if the nursing home then comes in and says oh no that's wrong we actually did give a notice you then relive again reconsider the whole thing well that i think you need to say yes because i think that's what you've been saying all along well but what i'm trying to say is that there may be reasons that a facility might not readmit despite that hearing just understand i would but that was the difference between there might be well first of all if there was an order that they should be re me and that because they did something wrong i don't know why if you then start all over even on different issues then you're not taking the decision as file but even as to the issue that was decided do you take that as a final decision or to reconsider that it would be a final but a straight up decision but the state is not a party however give that any meaning because they want to party now so this is the so the complaint could be made they could have they could be bound by the if the facilities failure to give notice and failure to readmit constitutes a violation the department is charged is vested with a number of enforcement mechanism but they can also say you know what we've looked at it again and we think the notice was fine you know it cannot however it can say we've looked at it again and we see that for example with one of the individuals on the record that this person has a restraining order against them from another resident in that facility and therefore they cannot be readmitted to the office realty so the issue under its investigative authority is broader than simply so i think you're saying that you're not bound to give the remedy the particular remedy but i i hope you're not saying that you're not bound by the finding that there was a legal violation in the first place that doesn't mean there is necessarily a remedy but i think i hope we're going to take for granted that there is a violation once the hearing says there's a know will be taken as a given the matter what else you do yes however either party is free then to take a risk so for example in the record there is evidence that the facility took a risk but he comes to you and says i have a complaint and i had a hearing about it and the hearing said let's say it wasn't a question of whether they didn't let me come back in because they said i had beat somebody up but in fact i the finding of the hearing was that i had and and that i should be let back in to the state now to say well we're not bound by that because we were in a party and we're now looking into it and we think you did beat the person up i'm sorry what is so yes is your position that the state now can reject the conclusion that he didn't beat the person up and he should be let back in and conclude that in fact he did beat the person up and he should here saying you have to take the part that he didn't beat them up but not the part that you have to be back in is that right i mean i think i'm having trouble understanding at what point they hear you're a spin a fair hearing correct with the nursing should enforce you should find the you should do something or other whatever it is you are empowered to do to enforce my right to get back into this place so this is the state i wouldn't be able to speak to that none of those facts are here but the state has the power to enforce to enforce violations so i think it's all of these they reconsider whether there was a violation that's what i'm trying to find out i don't believe so i believe that is a final administrative hearing subject only to superior court review or to the individual take a listen it's not going to say we weren't parties to that hearing and it doesn't bind us no it's a final and i just think i've gotten contradictory answers to that key question throughout or penalty assessment that is that is not set forth and i think that's the crux of the issue here opponents have argued that the state must take that piece of paper and go to court or otherwise physically enforce it and the state's position that cannot be our role that is not will congress and then that is not the way the state statute has been drafted and there are multiple remedies and we cannot be found by this notion that the only way this hearing is meaning full is if the state then enforces the hearing decision that's not how the administrative hearing process works at the state level at all but they say that there are all these people getting kicked out of nursing homes wrongly getting hearing results that say they were kicked out wrongly and the state does nothing about it and so there's this huge problem across the state do you deny that it's a huge problem across the state that this is going on i do and a but i believe that may be beyond the scope of the record here however the net what is the state doing to make sure that that's not going on across the state so the state is it does surveys as it's required to under the federal nursing home reform act to conduct surveys of facilities that investigates complaints issue citations it issues fines it can withhold payments it has numerous remedies their hearing decision therefore they have a right to be in this court to compel this court to order the state to enforce the hearing decision and not enforcing the hearing decision it's not what congress intended in the statute congress in subsection each was very any of this it didn't say anything but the merits of this issue because he said you have no right to be in court period we all seem to think that's wrong the question of what if there is anything  ninety five are is what we rely on for short hand they rely on subsection c subsection and subsection f subsection c arguably is the one they're relying on to claim a right to a fair hearing although i would say that is the c provides the requirements and responsibilities for the facility whether or not an individual has a private right of action against a facility nine hundred eighty three action oh it was a facility i think sorry against a facility for example as it was in grammar where that was a county run facility they brought in one thousand nine hundred three action in that case the whether or not they have a private they have a private right to enforce that against a facility is not a issue here the court need not decide subsection it is the provision that work that in which congress delineated the requirements for the state and with respect to these facilities and it includes that the state must provide a mechanism for a hearing on appeals that meets the guidelines established by the federal agency now it's undisputed that california's fair hearing process meets the guidelines established by the agency c m s has approved california state plan opponents do not dispute the subsection aff is the final section upon which they rely that's the statute that imposes responsibilities on the federal agency to stop those guidelines there's no dispute here as to whether or not the federal agency has established those guidelines it has california has complied with those guidelines c m s has approved it so under the provisions that they have cobbled together neither individually nork together do they establish this right for a facility for residents of facilities to compel the state to enact an additional in force mcmakin ism one that is not set forth in subsection each which is where congress explicitly delineated all the processes and mechanisms for enforcement what opponents have argued consistently in their complaint and in the district court is  the only way these hearings can be meaningful is if the state quote enforces the hearing decision is not clear what that means however there is no dispute that california appropriately provides all of applies all of the enforcement mechanisms at its disposal and that it would do so had to palance avail themselves either of the remedies by contacting the state agencies or individual going into court as they're permitted to do under state law action was taken and if appropriate provide for admission or remission to an individual interest only if anything here in just a favorable to the applicant or beneficiary what about that so three responses to that you're on our first is that the right as your honor but it's on a fight in the questioning this requires retroactive payments for the state to some that's not dispute here if appropriate again we reiterate the state no state agency makes admissions or re in and they say i we want our corrective payments you say not necessarily what the payments are that issue in this case you're just right in this lawsuit the payment and that goes to a whole other realm that's not at issue here regarding retroactive payments to be made by the state agency this i believe this regulation would clarified where that to be at issue but it's not here but i do think in addition california as policy has made it has provided for readmission that set forth in health and safety code section fifteen ninety nine point one moreover as to this regulation there is no individual right in this language here the focus here is on the administration of the programs under safeguard valley there would be no private right to enforce this regulation further supporting that notion is the fact that this regulation appears in the section of the c f r that pertains to procedure not rights to hearings i think that that this regulation is not forc state for transfers and discharges from nursing facilities affected on or after october one thousand nine hundred eighty nine must provide for a fair mechanism meeting the guidelines established under section subsection three of the section for hearing appeals on transfers and discharges of residents of such facilities and then there's a semi colon and i won't finish reading it but the point is that this is a hearing on transfers and discharges these people are being discharged by being dumped into hospitals and and they come out of it with an order that says that they must be readmitted and the state has taken the position and they took the position just now that it residences generic it's not a i mean the the magic words seem to be either individuals or rights or are per person there seems to be some fixation with actual and focus on individuals sure and i overrule the ones that are not clear are a lot clearer are it's the right to have the hearing in the first place which does talk in terms of rights directly a you three is the part of the statute that requires states to establish the hearing this b three part of it is the one that says that for transfers and discharge is affected on or after after october one  question and the enforcement part comes from ethiopian and council mentioned save our valley this is a different kind of regulation that we have that we're relying on here for two reasons the first reason is that if you look at the statute itself and you cross reference to f three it's talking about the secretary of stablish ing regulations that the state has to meet as part of the statute so it's a different situation than a regulation trying to create a