has been and quoting from page two of their responsibility that if the defendant deprive people of home care services that they need to remain living in the community and you're honest this is simply not true and it never has been the state of arizona wants this home and community based services program to succeed it's what the members want it's in the state's financial interest it's a program that's grown tremendously over the years and the evidence at trial was that the latest survey of the members was that they were highly satisfied just last categorically rejects anything that is positive stated about the program in post trial hearings he absolutely believes any anecdote that is first to the state and he refuses to give us enough attention or a hearing on these matters and then he suggests that he's going to impose substantial financial sanctions on us along the lines of judge collins in the tucson case from arizona where a million dollars a day was entered as a sanction i respectfully submit that we should not have to live under that tension if the judge wanted to give us a hearing and hear these matters out and see if any sanctions were appropriate that would be one thing but it just refuses to do that and repeatedly so  what you asked what the problem is your honor and that's the problem the judge continually threatens us with sanctions and i think if the injunction is not take it that he will probably enter with this far as i can see and your honor i did not intend get into that area as part of my argument today my argument today is the injunction should not have been entered and it should be very very catered by this panel the primary reason the sole reason that was discussed at any length in any detail by judge carroll was that the state had violated the so called equal access provision of the medicaid statutes that's thirteen ninety six exactly what i intended to do and on the first of the other statutes that the plaintiffs claimed was a basis for the decision that was the americans with disabilities act but the one in the opinion is the freedom of choice for members when there is a home and community based service program so that they are allowed to choose to get services under that program as opposed to being institutionalized in a nursing facility that's the first thing that statute requires the second familiar with your own or with cases that stand for the general proposition that if there is no program or if it's denied in terms of access to the members that that is not a choice i know of no case that gets down to the  care and says for instance if you don't provide services ten percent of the time on schedule that that is the equivalent of not allowing people a choice between nursing care and home and community based services what i'm suggesting your honor is that we are providing home and community based services by definition to this very clefs they are getting the services the question in this case is whether or not getting the service that your honor i'm just simply here is saying i never brief that issue i think it's a little late for me to bring it up now well it was certainly in the findings of the judge with respect to the equal access provision well he'd be defined in respect to freedom of choice well it's my understanding from reading the cases and this is why i did not bring the issue up before that there is if there's some question about it i just meant gone into an institution because her companion and caregiver was unavailable because she was sick that particular stretch of time and it was unclear in the record as to whether or not that person w seeking to get institutional care because of the extra services that that person provided that were now unavailable because the person was sick but that's the only evidence you're on anyone going into a nursing facility for any length of time your choice because you think well that is the way that the judge chose to characterize the evidence your honor that's not what people said and that's not a viable position for any state to take and it's not the one arizona takes what we said and what the witnesses that simply was there is a difference between getting twenty four hour around the clock care you know facility where you know someone is there designed to meet your needs and living at home the attendant care services that the state provides are not around the clock therefore there is some period of time when you're in your home without an attendant care person there to help you that's all they were saying there is that natural distinction so there is some risk that people have to be aware of that they are running when they choose to live at home without the twenty four hour care that's the only point anybody ever made there is no evidence of any written policy any testimony by anybody suggesting that the state of arizona adopts this program and then takes the cavalier attitude with everybody well this is an option but understand we may or may not choose to do anything for you and you really assuming a big risk designed to take care of that problem at all and goes much further than is necessary to achieve the purposes of that particular medicaid statute the freedom of choice we  ground cause of action as i understand it because that could go to trial but there's nothing in the find that's right there's absolutely no discussion of the idea either in the findings or the conclusions by judge carol and i read we should guarantee the provision of services within two hours it's a fine go and we can aspire to it but to guarantee it on pain of sanctions from just care are is not something that we should have to live with and it's premised soley on the proposition that the equal access statute was violated the idea being to prevent or remedy a shortage of workers that was caused by the payment rates that the state pays has nothing to do with the idea or the freedom of choice statutes it's simply not designed for that purpose and so your honor to answer your question yes i think the case would have to be remanded to judge carroll to fashion a new injunction if in fact that's what he was trying to remedy and if in fact that's what we're trying to remedy you have to pay a week that will attract enough people to provide this service free choice theory i don't believe he could your honor because that statute goes to very simple general concepts not to the kind of micromanagement the judge girl was attempting case elderly and disabled people who have been or will be eligible for medicaid long term care services now yes medical eligibility standard is judged carol found is that these people are at risk of institutionalization for example the name plaintiffs lead plaintiffs ball is in a wheelchair she's a quadriplegic she's dependent on a ventilator at night she needs an attendant care worker to provide her total assistance with activities of daily living column failon is a child with traumatic brain injury who is also a quadriplegic but now the graham is an elderly woman living in tucson she is leaking brain fluids cesar's tremors and is blind in the right eye and she lives with her mentally disabled son forty five years old grace collier could not turn in bed transfer from bed to the toilet change her diaper or dress without an attendant care worker to help her these are just some of the plaintiffs in the class all of these plaintiffs suffered needlessly when no one showed up to help them with the most fundamental health care services and the record is replete with the testimony of the plaintiffs who testified as to the trauma and the indignities they suffered as they tried to cope to remain in their home without the services the trial judge in this case heard the testimony and read the voluminous documentary evidence and found defendants violated federal law for their failure to assure that these services were provided the back of the defense argument in this case it's an attack on that the facts were not sufficient to establish liability the standard of review as you know however is a highly deferential wanted link to the question first of all i  case you could make a very strong argument that it was waived because it was never raised below and in fact was never raised to this court until a reply after sanchez was handed  because i thought but the court of appeals said that issue we do we're not going to rule on that issue we're going to rule on the fact that information wasn't disclosed in the beginning of the contract and i would have to look again to say that but i would recommend the other cases i didn't enter brief for that proposition way well your honor there are well there are many cases that say that freedom of choice is not guaranteed if the rates are so low that they are not freely available so there are cases funded or not reliably provided it's providing no choice at all i would like to ask it's been two or three years now since the injunction went into effect isn't any reason to think that it's not complying with those  terms yes your honor there is because we have filed enforcement motions we have numerous plaintiffs that have come forward constraining them still not receiving the services and i don't want to get off the record on this one so you give me the information i need ok i would like to clarify clarify a point on the a p a it is true of course that judge carroll did not cite to the eighty eight but if you look at his ruling you will see that he found violations of each element of the a b a he found that the individuals have a disability and are qualified to receive services findings of fact four and five he found that the entity which was to use federal funding to insure services to arizona's medicaid clients finding the fact number one and finally he found that the individuals although he did not use discriminated against he found that they were  recall the many others collier was moved to a nursing home after this lawsuit was filed where she died in january two thousand and one that's in the supplemental you are the proposed joint pretrial order ingestion that was because she was with great eloquence what she did to keep herself out that she suffered many indignities to avoid going into an institution i would also point out to executive directors of the independent living centers one in phoenix and  two this is the bulk of those two areas are the bulk of where most of the recipients left their expertise is placing people out of institutions and providing couldn't care for them in their homes they both testified that services were not reliably provided and therefore people couldn't get out of institutions there was documentary evidence relating to the fuel river indian tribes saying because services weren't provided people were in in ok here no your honor i'm not familiar with any of those cases but i have to say that this is an instance of no care it's really not bad care they're not getting the services that are prescribed in their care plans these are services that the state and their program contractors acknowledge are medically necessary so you sense the differences between if something now let's turn to the violation of the reasonable promise requirements of the medicaid statute and the regulations for a moment thirteen ninety six eighty eight but that was that is correct your honor and i would is rolling and throughout the trial he expressed his frustration about those limitations and if you look at judge carroll's order you see that he has actually come up with a definition of reasonable prom i we looked at the principals of starry decisis and looked and thought that there are other circuits who are developing contrary opinions and we thought that that would be a very good basis to argue that sentence was wrongly decided obviously we believe that it was but we thought that that was a very difficult principle to overcome the and we promise claim he thought that that was limited to initiation of service was some legal issue and never appealed well we believed it wasn't necessary under the president but we have a very simple answer to that one deals with the initiation and the second deals with continuing services if congress had meant to limit the second clause to only initiation of service those they wouldn't have used the word f individuals wishing to make an application for medical assistance on the playing on shall have the opportunity to do so and that such as shall be furnished with reasonable prominence to all eligible individuals i read that as does thirty center for medicare and medicaid services the federal agency interpret ing it to mean continuation of services if you take the regulation which is often used to elucidate the meaning of the furnish medical promptly without any delay subsection says continue just burnished medicaid regularly and eligible individuals until they are found all and that they must make arrangements to assist applicants and recipients to get emergency medical care medical care whenever needed twenty four hours a day and on a seven day basis course the federal agency responsible for implementation of the medicaid program provides very persuasive graduates in this area just show that of course the agency must continue to provide services promptly and i would say that if you look at the entire structure of thirteen ninety six and a you see that there are fifty eight different provisions which congress has said the states must must comply with it would make no sense given the extensive regulation that congress puts on state that they would say you must provide services in the beginning but especially with reference to long term care services that are given over a long period of time that you don't have to provide them reasonably promptly either in many cases support the notion that it must be provided regularly a managed care program the capital payment that is given to the program contractors to program contractors have a short access they're going to provide all the necessary services but they in rebuttal judge i would simply state your understanding point to the case of debbie reynolds casino which we said in our stop luminal brief i think that's very similar to our situation here with respect to the freedom of choice argument that you've just heard you've heard  plenty of counsel characterize this as a case of no care versus bad care in answer to your question and i submit to you your honour's you will not find a record made in this trial to support the fact or the allegation that we are not providing home and community based services the issue here is between bad care and no care and the the facts of this case are one of bad care and for a very few people  do not believe that the record will support an injunction however modified on remand i don't believe it should be remanded on that ground freedom of choice i think what we have here is no evidence whatsoever of a person having to even contemplate a choice between nursing care and home care except i'm sorry mr ball for that ten day period if the plaintiffs had had such evidence they certainly would be wrong but he found it and i would submit is clearly wrong your honor if that's the evidentiary predicate for that's the case to have an injunction on that particular statute i think it's clear and i'll leave it at that