when he entered sanctions against apartment he starts a magistrate judge's orders adding deadlines for the completion of ideological evaluations contradicts the plain text of the agreements the department agreed hard of hearing and then a doctor evaluate the inmates while they then refer the inmates to adi office that's also involved scheduling the appointments with audiologist rescheduling appointments at those are cancelled and transporting for chair they then make reasonable efforts to explain the results of those evaluations from the audiologist's and then after that is within thirty days and make sure that the inmates undergo the final stage of the assessment  although this court stated that i was sure judges order the department has referred all of those inmates that were interested in seeing audiologists to see them some inmates were not interested in seeing audiologists because they had already gone through this wish to see more referred have been completed i apologize your honor i don't have that number but i can get it for this course if that would be useful but i do know they have all been referred and that the pen time it has been delaying prisoner to an audiologist and nothing happened nothing happened for a very long time the referral provision of the agreement would protect against such a situation for example there might be a showing then at the department was acting negligently and only referring inmates to audiologist you had no availability or no ability for years or by only referring them and not making sure they had an appointment so we do think those concerns are addressed and that's one of the skeptic i pick up on judge riposte question so i think it goes right to the heart of this would be would you add at a minimum agree that the referral brings with it an obligation to use best efforts to see that the referral be realized  reading and that's why are you ok and it what point just give me a hypothetical you can pick an easy one at what point would your best efforts obligation be breached so  that were the case and we do try to guard against some of these concerns to the referral process is up to let me ask you another question that surprises me and you can tell me i'm mistaken i expected when i read your briefs to see the word ends my concern is still going to be a president and that that's why it's surprising to me though that you say that you take that position and it's yours to take not mine but the reason the reason that i'm surprised by that is i i would have thought you would have argued that initial there's in your view there should be no time limit if there is going to be a time limit the time limit has to account for the circumstances  at the present time and those circumstances are one where we're in a major health pandemic you're going to read you agree that if there is a time limit it should account for those circumstances and we believe that both with the pandemic and without ninety days of simply too sharp for us to guarantee but the reason we didn't grapple with the particular timeline is because in any setting we would not have to reach the agreement with this new obligation that the magistrate judge added and because even during and forty eight dash one of the record i'll just have concerns about being inmates on the same day as members of the general public because of security risks that have concerned about seeing inmates from more than one facility and so because of a host of practical difficulties and because of concerns on the audiologist's parts although we do transport the inmates even when those facilities are more than an hour away there are many factors for why the audiologist are not able to note that we are challenging the magistrate judges entry of sanctions against the department the parties did meet and confer about the use of license sharing instrument dispensers and the department corrected that procedure but for the timeliness violation i like just that briefly address each of those violations we believe they're both well sustained by the record as well as by the settlement agreement here the l h id violation is a particularly egregious violation it deals with the audio logical evaluation which is the linchpin of all the individualized rights and services that inmates provide are provided under this settlement agreement without the audi logical evaluation determining that the inmate is in fact deaf or hard of hearing has a hearing impairment the individual receives none of the individual ised rights and services use and title to through the auxiliary agent services assessment is communication plan etc are all those things get checked into place once he has the audio ocho valuation so denying him a proper ideological evaluation either by not doing it timely or just by not doing it at all or by using you know each idea as they did in the st violation is particularly egregious that violation is undisputed it's not challenge below it's not challenge before the court i documented that right after they executed the settlement immediately after that starting in july of eighteen they started sending inmates seven hundred dollars to l each i d s license hearing instrument dispensers are basically hearing a dispensers not to licensed audiologist to do a proper audiological evaluation they did that for one year from july th of july of nineteen they did it with seven hundred inmates and they've admitted both below and on and on the peel hear that valuations number two i'm going to extend the settlement for a year because of this violation number three you have to retest all these people with proper audiological of valuations violations audiologists those three areas of relief are not contested on appeal and should not be disturbed by the school the only two aspects of the relief of that violation they contest are the fact that they had to do that retesting of those seven hundred dollars inmates by august th which was about eleven weeks after the judge issued his order and the sanction that the judge ordered pursuant to the settlement provision that says when there is substantial violation of the agreement the court in order that they pay our plaintiffs of fees for investigating and violation because they've caused us as monitors of the settlements to work so the only those are the only things they challenge on the order and they challenge it on one argument that has two parts to their argument is a those are not i'm going violations they are pas elations and be the judge has the power of the settlement agreements address only ongoing violations not past violations they're grossly lot wrong on both of those points and so the question the court asked about the status of those inmates st of all the response from counsel is completely outside the record the record before the court at the time this was filed is that none of those individuals had received any audiological valuation violations ideologies that was  do it in any kind of timeframe so the record is those folks are sitting there day after day month after month with no proper audiological valuation in violation of the settlement that's not a past a violation that is an ongoing violation even if there is one or two of the seven hundred it's an ongoing violation but we believe a substantial number if not most of the seven hundred have never received the proper audiological a ration that is nowhere in the record before this courts of the court should assume i believe that none of that has happened and that is an ongoing violation they've argued that well we stopped for referring people to out of licensed hearing instrument dispensers in july of one thousand dollars and therefore it's over we're not doing it anymore all that means is that they're not committing more violations with more people beyond the seven hundred it doesn't mean that the seven hundred violations are over they haven't been corrected on in this record and those inmates are sitting there day after day suffering that violation so that's clearly an ongoing violation secondly the they're wrong on the fact that even if it were a past violation that the judge doesn't have the ability to resolve the matter in a relief he clearly does the provision of the agreement pursuant to which the judge can order relief clearly says that if if i dock has been has been in substantial noncompliance with the settlement the court could then enter route whatever really very broad language whatever relief the court deems necessary in order to ensure their future compliance with the agreement is true and so can i get the benefit if you think you're making a bunch of fair points in your desk you're doing it quite well i've got a question for you though about the nicer days my my concern is that the ninety days may not have any reality in the current situation yeah let me let me address so i think i'm pretty much done with the religion id violation of the you're turning to the  timeliness violation i think the l h idea violation is both rock solid because it's not a pass violation in the just get address on the timeliness violation that you're addressing let me talk about that from it st of all there could be three components of that violation that i they could challenge do we have to actually do audiological evaluations at all do we have to actually make sure that they happen that's how the number want number two if we do do we have to do it in any kind of timeframe and number three what is that time for those will be the three issues they don't really challenge the nd and rd issues on that on appeal and they really didn't do that below either because that's what we thought this whole are we call that the timeliness violation that's what we thought this whole argue was going to go on this issue best not work when it went to this argument that we don't have to do it at all well we have to do is enter a referral which i'll talk about in a minute and once we do the referral our hands are clean we're washed we have no responsibility whatsoever that's us the question about both of you about whether what's their position if you read their brief their position is we have zero responsibility once we make that referral ok counsel was just saying well maybe we have to remember for maybe we have to do these other things they don't say any of that the brief was how you say michael his monologues zero follow up with you on that ok if that's all fair my question for you is should our court should our court have a concern about affirming an injunction and not let me put it put it in a way that you might not agree with but it's your answer that i want to hear affirming an injunction that is impossible to comply with right and i doc again never argued it was if they dream it doesn't say they have to do it in a certain time do they have to do it within a reasonable time that nd issue is answered by illinois law it's crystal clear if agreement says you have to do something but there's no time provided you have to do it within a reasonable time the time frame  is your point hey look they got it they're the ones that are choosing how to litigate the case yes they're litigating the case on these terms and you know they've they've got a you know live with the table setting that they've set up here in response to our motion to enforce they had two pages at the back of their brief they didn't argue in possibility we can't do this they said plaintiffs counsel underestimates how much work this takes to get audiologist that was like the title of their last section in the but the judge found if you read the judge's opinion he said look you haven't given me any meat and potatoes on that there's there's nothing in the record that supports your supposed claim that this is difficult you're not even arguing it's impossible and the other reason why this for consider any of those issues including the code issue your honor raised is because now because they've waived all that but because those are issues for the district court to resolve those are factual shews that's where we need to find out what acting reasonably to try to get audiologist line up to do this have they are they having substantial difficulty is cope with impacting them all those kind of factual issues that go into what should the deadline be we are dispy sixty days the judge found ninety days i got took no position below and takes no position on appeal and that they had every opportunity to argue that below and they never argued it because they just claimed judge you can't tell us to do anything all we have to do is make this referral and we're done we don't have to actually then follow up on the referral and make sure that it's actually done counsel is now in response to questions you're asking saying well maybe we would have to do a real referral maybe we'd have to do this maybe have to do that well that's not in the that's nowhere in the agreement anywhere and she's making that up as she goes along i'm not sure what they think they have to do but they've taken the position in the brief that they have to do zero that's their position  but we also agree if it's not can fasher what fashion whatever remedies are needed including injunctive relief in order to get back in compliance and the court has very broad authority there under that provision but secondly on the nd violation of the somebody out to a physician and you say hey physician would you please do this this is a directive and i doc doesn't have to use outside people they keep talking about this like it's outside people over whom they have no control the language of the referral in  people there's nothing in the agreement that says they have to do that they could use inside people if they use inside people i think we already see a nurse i cast some medical staff and how sometimes a nurse of items i next employee actually does the referral  and then there's and then you know the for referral ends up going to some doctor that i don't contracted with through through its works for the energy it uses for all these services but it doesn't have to be that way i'd like has admitted it consider hiring an in house audi ologist what if they do that what if they hire an in house audiologist and you have one eye doc employee referring this patient to another eye doc employee and his eye docs physician that's all we have to do is one of our employees tells another employee to do it and that's enough we don't actually have to do it then i think we'd all agree that would be absurd the only overlay they put on that is well we're actually using all these outside pardons that's their choice and they still are in one hundred percent control of that relationship because they decide how many audiologist they hire to they hire one and then were jammed up from here to kingdom come on these appointments because they didn't hire enough people or do they hire fifty that can get this done in a reasonable time frame that's up to them under what conditions do they offer these people to work what do they pay them one at what time how soon do they get paid all these other kinds of things those people are one thousand percent in eye doc control the notion that they're out of my docs intro is a complete fallacy i got controls the whole thing so in that context this isn't a referral in a in a private context these people are in custody the inmates have no choice the doctors work for eye doc you know whether they're in house people or whether they're outside contractors and i is directing them to do a procedure and they can throw up their hands and say well we directed him to do it but he didn't do it so we're not responsible that leads to the legal context i doc as we put on our brief it is one thousand percent responsible even when they use outside contractors for the legal for the medical care of their inmates one hundred percent responsible so they have to take responsibility for those people in light of that you know because they're one hundred percent control of the situation they're one hundred percent legally responsible for the situation this is the the notion that they paint that we're just referring to some outside partying with them outside party does well it's kind of the outside party and we just cross our fingers and hope it happens that is in no way shape or form with the parties bargained for here in the district court judge knew it because he was intimately involved in the settlement as a matter of fact he that the district court couldn't have approved a settlement like that this was a class action had to be a fair and reasonable settlement and if i  get out of all its responsibilities by simply saying well we just make a referral and then we cross our fingers and hope it happens and we have no responsibility after that that's a ridiculous situation that's not a proper interpretation of the agreement under the facts of what a referral means here and the legal concept of the referral in that setting where the eye doc remains one thousand percent legally responsible for all the medical care and i'm the last for bit out you see that but what can when they bring it to the audiologist right they could contract with these people and say we need these done when you do that referral you have to do it within thirty days and you have to come into the hearing and no i won't we don't know what's in the agreements up to eye doc to make those agreements that's the point they control it so you know and they say if they control what the people are paid whether that's industry standard how much they're paid what their working conditions are and so if they're having trouble getting audiologists maybe it's because they're not doing a  reasonable job and trying to do that that's and that's a job for the district court to assess and gather information on factually not this court but i doubt clearly has to not just make the referral but follow up and make sure that the referral is is that the that the procedure that they've ordered to be done on the referral is really in order and it's really a cell for it's a referral from i diot to itself to do this procedure regardless of whether they're using in house people or outside people they controlled legally and factually all those folks and so it's a self referral that they risk so that idea that they can just refer to themselves and say well i made the referral to myself and i don't have to do it that's ridiculous that cuts the legs out of the entire settlement agreement it undercuts all the rights that the inmates get under the agreement and it's in the way that just a court well knew that's not what was intended here that that that that we that we have a detailed settlement reman everything turns on these people being defined as deaf and hard of hearing and they're only defined as deaf and hard of hearing if they get this audiological evaluation by a proper audiologist and so that i can just say well we don't have any responsibility for that we just prefer to somebody that we contract with and you know we'll cross our fingers and see what in the agreement we do know what's in the agreement and this court gives effect to the plain text of the agreement the agreement does not require the department to hire a staff and the department to not have any staff audiologists when it signed this agreement instead the department refers inmates to audiologists that it contracted with wexford to expect these appointments and all councils hers are founded on the polls premise that the department will simply sit back and hope that the evaluations plaintiffs no make no make no attempt to read but there are a host of benefits that are recorded to inmates who are identified as deaf and hard of hearing and that's explained at page thirty to thirty one of our briefs rd it is not our position that evaluations will simply not happen and there is no allegation that this is occurring and sudden changes are taking issue with the amount of time it is taking for these about emissions to occur to the extent this court would like to re evaluate the ninety day deadline the magistrate judge  when he explains why sanctions are necessary he explains it's because the department was in the past violation so to the extent that the plaintiffs are chart challenging that characterization that would be an abuse of discretion standard of review and so these individuals and do everything that the referral process requires but the problem with the deadline is that it again assumes that the department can control when the audiologist sees these inmates and especially right now during the pandemic a stretch scatter pointed a reasonable way my question was more to st posed to question does he have remedial of the argument to impose an airline with respect to those who have been that's because that paragraph ninety two of the agreement of the parties but in a dispute resolution provision but if the parties were able to put me in conferring good faith plaintiffs could not file a motion to enforce and because that's what happens here i will believe the