years since the founding of the medicaid program persons who applied for medicaid services who were not satisfied with the mitchell determination as to the amount of services to which they were entitled had the right to appeal those initial determinations for over twenty five years this court has held that if the state outsources those initial determinations to private entities those appeal rights still apply nevertheless the district court a difficult case ruled that because new york had outsourced its initial determination as to the number of personal care hours that it applicant was entitled to to private entities entit the person's applying had no such appeal rights in this case so the state did more than just outsource the single determination to change the structure by statute to allow customers potential benefit it's not that she requested services of them they told her what they thought she needed and she accepted one so she was getting services that were offered she had requested service levels different from what she was o accepted and only offered six and she want to talk that group was closer to home they had nice people she had all her reasons for accepting that is this will we be getting into competing offers and suddenly how providers will if you're under that after she after you unroll and choose from the entity you're allowed to appeal just that entity and that's exactly what happened here under the regulations it says that once you become in the role e you have the right to kill the initial deter you have eligibility you don't request the number of hours it's only made to be a multi city they're the only ones by statute or regulation that are entitled to make that determination and once they make that determination you have a choice when this case miss bell and try to appeal that determination before before she enrolled and was told she should appeal it because she hadn't enroll then she enrolled and she tried to appeal it again or she was told no you can't appeal it because of pretty and roman determination this is a system set up by the state which is very  unusual the regular state the regular way is managed care is set up your honour's is that you st get accepted to a to a law to a managed care organization and then you st apply and you st apply for benefits so at that point you're in a no in rowley and you the existing in terms of time lines etc well your honor our position is that once a person rolls in the a multi see that's when the fourteen day that's when the fourteen that's when the notice is required to be given by the m o t c of the right to signify that they're on rolling but they're not they're not accepting of what they're getting correct and that's the way it worked under that's we worked under the fee for service programme beforehand your honor you to accept the number of hours that they gave and then you to peel it saying that  otherwise people be left in a terrible situation your honor where they would say i need eighteen hours a day of care they're only or for me six i'm going to take nothing and i'm going to appeal this you're not you know are there any statute yet to be resolved in your complaint was dismissed but it seems to me there's a lot that is uncertain about house operates in practice for example a uniform assessment system chamar discretion so on and particularly with regard to people unlike ms dahlan who don't require full time care seven days a week there's a lot of variability and uncertainty in my view about what kind of untried woman there might be really be but it's difficult to tell from there you know this is just  totally agree that there are more factual questions that we need to scott very we believe that we've made a plausible argument that the that discretion is discretion is very limited by new york rules and the criteria and we would like to have discovery on that very issue on the fair hearings on exactly how the state makes its through and determinations or demands that these determinations be made so certainly under due process claim there is more there is more to be there is more discovery there is its cover that is a determination that's never appealable she's got what she asked for on a going forward basis but but under the inherently transitory exception to the to the moot it's rule which applies directly to this case there is going to be no plaintiff who's going to who's going to be able to satisfy the regular mootness rules and that's because if you're denied the number of hours you want and then you make it and you become a member of the plan and then you apply for a new determination that determination  does not moot this that this court's inherently transitory case say that's what they specifically talk about there would be no period of time there would be not sufficient amount of time for anyone to bring a case in federal court we brought this case in two thousand and nineteen and the end she got the ongoing care for twenty four hours a couple of months after after we filed this case so there really is going to be no other better better plaintiff than than ms though let me let me ask you this i want to see how it is  once got it they both want twelve on the day that the the day that the person was a rolly asked for twelve and doesn't get it she has an adverse determination and she has a hearing process i can take up to sixty days for ect that's correct i know the person who's a who's unrolls and on day one says i don't like the eight i want the twelve how is she any different than the lady i just meant the person i just mentioned well because st of all it takes time to enroll you don't just enroll that they after you sign up that you find out they make you roll in the st of the next month no wait a nd so stop are you asking us to shorten the enrollment period to no no i'm not what i'm saying inherent within the enrollment is a difference of a lack of times you can't you can't your injury of lack of time can't be the result of the moment because you're forswore that so what's the determination ok i'm day one she says i excepted the eight but i wanted twelve on day one she says i want that it's no different than what the person has been in the system per year and does the same thing aren't they treated exactly the same in terms of when they can appeal when they get when they get their notice of a denial absent the time that it takes to become an enrollee are they treated exactly the same no your honor because because the difference is that that for the person who wasn't an unruly before an initial determination was made then they join then they have to ask for another initial determination to be made and only then do they get to appeal or write well there because it's a retroactive period but you're never going to get you're never going to be able to appeal that initial determination and determine whether you're entitled to reimbursement under this under the scenario where you have to apply again once you become a are considered i don't want to say the dregs that's the wrong word but they're not they're not they're not want to buy these entities they lose money on them so the competition is a loser ie there is no competition to get a money loser and so that and by the way going to different d has to has to get it has to be reevaluated whereas the person who's already but isn't a person who's already been in for a year and asked for more hours don't they have to be evaluated to see if they're entitled to more that's only a situation your honor where the person already has our future that we are people an m o p c s are not getting we're not getting personal care services they make their initial request for services the initial determination is made they get to appeal that immediately that's not the case for the people who are not already in rowley's they get initial determination before moment then they enroll then they're said then they're told oh you can't appeal the national determination because we've pretty in rome and you've got to after another initial determination you ask for another initial termination thirty days or so goes by and they make a determination and only then can you feel so there's a significant amount of time that you're not getting the care that you may be entitled to and that happens it happens for en has it doesn't because the in rowley right after the st decision is made as to how many hours in relieving title two they get to appeal immediately if for a non in rowley that the termination was made before enroll meant by that because relief is that in your hang your hat pretty much on what is an adverse and if a determination that's under yes that is under the under under the four hundred and thirty eight regulations that the oil thirty eight regulations don't cover it then we go to the four  appeal rights afforded to medicaid beneficiary seeking personal care services his state's market based manage long term care and roman system as it came to say there really isn't a market here because ms damelin was going to be a loser and a lot of people were not going to to get her said in a way is that correct it's not your honor for and there are four different considerations that explain why this is a competitive market system the st is each of these plans is competing for a payment if they don't enroll someone they don't get paid and so they have an incentive to enroll someone the enrollment capitation payment is then it is then tailored to the type the characteristics and needs of the population served by that plan and so for plans that tend to cater to individuals with higher needs they get a higher capitaine payment it's also important to remember that many of these plans are nonprofits and so profit isn't their bottom line in fact these are entities that are committed to serving their communities and have every incentive to provide to provide the to provide the the full amount the full amount of the full amount of care the other point i'd make is that the financial pressures that misspell and ascribes to manage long term care plans apply equally to applied equally under the fee for service model because it was the local social services districts that were also making determinations about personal care services and those determinations were coming out of what it was a finite pool of  way the system is designed to work in fact someone in misspellings position is able to apply to over twenty different managed long term care plans and to obtain offers from all of them and it's i think that's sort of i think the sort of the crux of the problem here because although misspelling is now trying to limit her argument to what she describes as the ability to appeal on day one she's never been able to articulate a limiting principle to her argument which means that realistically her argument extends the proposition that anyone who gets a pre enrollment offer at a period when they are still free to shop around to as many as twenty other different plans they get an immediate appeal right that has the consequence both of overburdening the state's fair hearing system know adequate in her mind her and her family's mind these are these judgments you know how many how many hours do you need a home health a what kind of assistance is needed with toileting what how these are these are to some degree judgment calls which cause into question the whole the whole property interesting to some degree but their judgment calls and there's that exact science to this and so we're why is it once after she's unrolled that she can express her dissatisfaction with what she's got and why doesn't she have an entire moment to be treated equally to the person who's been on the land for a year you opponent says she's treated differently your preview say that she's not i'm that's what i'm pressing for is she treated the same as a person she on day one after she's accepted the offer said this this wasn't enough but i had i had do something i'll take it hours from now but i really need twelve or i want twenty four and your partner says well that's not treated as an adverse determination she just reapply for an increase in is a request for service that triggers a fourteen day period in which the which the mannish long term care plan must make a decision that if it decides not to provide the services that's an adverse benefit determination she can appeal within the internal  and win the state fair hearing process and remember during that time she is getting some level of services the services that were provided during the interim interim period she was still and i'm just trying to work through the last side of this not  in a change of condition although not necessarily what what needs to be established is that the current level of services is not adequate so that may be because of a change in condition or maybe because of a determination that the existing services that you've been getting were simply inadequate to your needs but once you've shown that what you're getting now is inadequate you are identical to the person who enrolls on day one because you make a request and that triggers the fourteen day review period by the mannish long term care plan that then triggers all of the subsequent appeal rights and something else i should note here is that there are plenty of protections that are built in here that are built into the system that are intended to basically says the fill the same purposes of us of the state fair hearing process that mr allen wants and there are expedited procedures within the system so if you feel like a fourteen day review period or thirteen day appeal period are not suffice are not fast enough you can use a you can obtain a doctor's provision to get an expedited determination within seventy two hours you can get likewise an internal appeal within seventy two hours so there are many protections baked into the system to ensure that individuals are getting the care they need while they go while they and why they go to the sites and it's why if during the appeal process i procure the additional care that i think i need i can get someone to spend the night and to be with me twenty four hours a day and my entitled to five prevail ultimately to be reimbursed for having obtained for in whatever i paid services in the meantime it depends a little bit depends on on two things the st is the date of enrollment you can you can get back payment date to the date of the period in which you are entitled to receive services and it depends a little bit on what the actual determination of the state fearing state fair hearing process and what the  judge actually determines was appropriate but there are situations in which compensation was available and in this case for example there was a state fair hearing determination that provided some retroactive author or authorization of service at service that the reason why donors a problem with the way the new york system work view of the so i don't know the specific details of every other state plan i'll say a couple of things the medicare plan medicaid statute is designed to give states maximum flexibility and so there are a lot of different systems can comply with legal requirements and the question state has elected to do and does so in a very protective way now that the parts of the system that misspell and i think is concerned about this desegregation of the eligibility and number of hours determination actually has a lot is has a lot of protective benefits for individuals what you have by allowing the maximus or c facts to make the initial eligibility determination is that you have an entity with absolutely no financial stake in the question making the determination as to whether you are eligible for personal care systems that's different from what as i explained from before from the the previous system where it was a local social services district that was also on the hook for specific numbers of dollars and the amount making that determination now that determination is separate then you have the competition and goal which gives something which gives something gives rights to potential rowley's that are also absent from the different system which is the right to ask for up to twenty different offers and if you're a new york city resident for multiple different plans and so there is an element of come consumer choice and vox that you can continue soliciting offers right up until the day enrollment and then after if you are dissatisfied with the numb with the number of hours that you that you receive again that's different from what happens in for example mainstream managed care or other managed care programs in other states in that instance you have your are ready enroll with a plan there isn't this option to shop around and so on and that a lot of what that part of what that but for other people it could be eight hours six hours you know very tailored or what have you and disappear some kind of entitlement it's a knowledge and then there's what can be a protracted gap while you shop around and you help the st choice and so there is just that twenty eight day period and then the gap between the qualification and actually knowing it leaves people who are potentially in great great need with no way regulations under section five hundred and five fourteen procedures in which you can actually get medicaid enroll meant determinations and personal care services within twelve days that's not something that mr belin applied for but if there were an urgent medical need you obtain a doctor's note and you make an access station and those services are available if there was a situation where someone's health was a subsidiary slayed risk and they did not have voluntary care available to them so there are procedures in place to make sure that during this delay individuals are getting the procedures that you need there's also a question i think part of the question also goes to a due process question which is this this question of entitlement and that gets to this desegregation point that we're talking about before which is that the question of of eligibility for personal care services that's something that is immediately appealable to the state fearing here process but the issue in the right that misspelling is is is is a little bit is categorically different it's about the difference between six hours or eight hours or seven hours and that's just that is a medical judgment that is layered with a bunch of discretionary and judgment latent determination that is not the kind of right that is that over to protect a property interest of which this court has recognize to any particular facts that would be that were developed in the record he didn't have any answer to that of like what fact he might point to just saying that there are things that we'd like to discover and i think that's telling what the uniform assessment  example mandates that you consider a doctor's order that doctor's order that talks about the condition of the patient is entirely a question of medical judgment likewise the social assessment required to you have to you have to consider the patient's you know views about their own care but that requires a nurse for example to assess the motivations of of the a voluntary caregivers and so while there are mandatory considerations the assessment of those considerations and balancing of them are are our discretionary and not that they do not get that the in that give rise to a particular property interest particularly when you couple that with the fact that there is no conclusive determination or concrete determination of rights these are so in barrow's and burwell we around that it was in the program proper to dismiss to grant a motion to dismiss in a case involving similar kinds of rights of medicare beneficiaries in that case about how actually observation status versus admission status of hospitals worked and that the nature of property interests the nature of the you know how the administrative system worked to deprive people of their state acknowledged rights was uncertain enough on a motion to dismiss in light of the presumptions that we are supposed to give to  plaintiffs that further factual development was necessary in order to determine whether those rights had been infringed on why is this case different from how garrison burwell went a couple of factors the st is that embarrass i think this court was very clear that had the decide decisions about whether to admit versus keep individuals on observational care had that been a purely medical judgment there's no question that there would have been a property interest that the problem was in that case there were specific allegations in the complaint that in fact the decisions about admitting verses observational status were now they were were now being done by sort of standardized and mechanical tools that there is no excuse and similar allegation in the complaint and in fact when that case went back on a man there was a distinction between judgment at the medical determination and doctor admittance level and then independent review boards that used standards while one while the medical while the decision that required substantial medical judgment was not a protected property interest interest when you were applying very specific and concrete standards at the review level that that was something that was determined to be a property interest and i think that's the law we're on the line of medical judgment particularly since that was also a categorical you know you had a by unary choice admittance or observational status here you have an array of anywhere between zero and twenty four hours with all sorts of considerations like cost effectiveness whether or not there are voluntary caregivers whether or not an individual who otherwise would get two hundred and forty seven care has a space in their home to have someone live with them and their so even when you would otherwise think that perhaps someone is entitled to a very extended period of care there are other considerations of play that just cut against any concrete exactly where i was i was going to go and the answer is yes misspellings the individual claim was mooted out for a reason that was unique to her her her change her condition changed and there is the inherently transitory exception for class action claims simply does not apply the alleged injury here is that the absence of a pre and a pre enrollment appeal rights and that absence will will not change for any class member and there is absolutely no evidence or allegation in the complaint that other class members are going to sim experience a similar change in condition parallel to misspell and that will result in the full provision of services and therefore deprive them of an interest because there will always be a class of individuals who have surviving claims that a court can determine before class certification the perspective of the managed long term care plan i think my colleague has already addressed and your honour's alluded to the unworkability of providing affording appear and hearing rights to any and all but ten children rowley's given the requisite fourteen day notice of appeal rights and how that would just be a system that could would would not work if if all that for the risk of its members and so that the higher the care needs and associated hours the grade of the adjustment to the premium relative to the relative to be peers in its  region and really they do have an incentive to offer enough hours to satisfy the potential enrollee because that enroll then otherwise seek more hours or or greater level of services from any of the other twenty plants that serves the new york metropolitan region and as i want to add one point and it's been alluded to there really is this concern the due process claim there is no realistic expectation that any potential in rowley will be off twenty four hours of personal care or any other level of services because that plan of plans initial assessment of the beneficiaries care needs and medically necessary hours involved the specific claims such a tory regular story as well as due process claims in this case and obviously certainly make they try to make the case more sympathetic to decision whether they accept a particular plan or not so there's every incentive for plants to accommodate the needs of beneficiaries and notwithstanding the gratuitous allegations and some of the guy briefs so the system itself is structured so that it is it is really oriented toward the consumer i e the potential in ro and and so yes and the l j decisions which in many cases do rule in favor of the appellant is i think testament to the robust nature of the existing  in fact in fact the the assessment can only be done by a registered nurse and as my count my colleague cited earlier it's not if the state directs the plant to consider on the host the fact is that it doesn't direct them to reach a certain outcome in applying those fact actually requires them to and deploy a registered nurse along with decision and other professionals as needed to really assess the totality of the potential  your question please thank you well let me try again given your the importance of understanding the scope of your client's discretion in analyzing the plaintiff's due process issue i  wonder how we can understand from the motion as motion to dismiss stage given the inferences we're supposed to draw plaintiff's favor whether we can whether we can understand better your client discretion is meaningfully channeled without understanding exactly how the system works because that i believe shaped the understanding of the due process claim and at the rights of the issue i think could you please yes your honor and i believe that there are in fact no issues factual issues in dispute about that assessment process i don't think that i think all sides agree that the plan is supposed to apply the uniform assessment tool and all parties agree that the the  of policy guidance frames how the the plans are supposed to assess the members so i don't think there is any factual dispute that needs to be developed i think if environment they actually have to go into the home and see other any impediments to to the potential employees activities of daily living like a staircase or the contours of the the apartment or home that all of those factors involved judged and that can not be that cannot be  characterized as limiting the discretion to the point that that specific outcome would be mandated all of those factors are  undisputed the process for doing performing the assessment are not in question here it's that given the subjective and variable factors and  necessary judgment required to determine the medically necessary number of hours differences on appellant from appellant perspective that is simply a rote application that any lay person can do to the contrary the disc to the undisputed record shows that that is the r n who has to perform that and has the exercise  how many hours somebody needs this is not a complicated determination and that's how all jews were able to make the decision if it was totally subjective there'd be no standards whatsoever the supreme court has made clear that the fact  just not deciding whether someone has a broken leg or someone hasn't just but it's very right this is about how much time and holy person needs what their cognitive functions are whether they can run the bank and things like that is that  they're completely ignoring that under federal law medicaid the number of hours can never be appealed initial determination you're never able to show that retroactively you're entitled to twenty four hours and then you should get reimbursed or you in total for that care they say that that determination is never appealed that can't be correct it's completely inconsistent with the idea that you can get red truck the benefits and appeal those determinations so i think that that is on the case is not moot because nobody could possibly have enough time to bring a lawsuit under the under these  regulations and statutes and with no change in the palace in the appellants condition in fact the fear nd fair hearing decision who's factual findings are binding on the court specifically found that there was no change between the two so that's sort of a red herring your honour's that doesn't affect us in some cases not moot there is a such jury and regulatory a right to appeal both under the new regulations and statute and the old regulations and statute which were not