yes you may come on  give everybody a moment to get settled case has this court has just heard we were present jane's harry's index in the hospital and those who are at risk of institutionalization currently there are over two hundred children that are still institutionalized in florida or over three thousand children that are medically fragile unlike the prior case in which in which this court was dealing with any issues of whether or not the united states has jurisdiction to enforce h a case was limited to basic federal rules or several procedure using mootness and standing and additional factors in rule twenty three to knock out our case after the united states was knocked out there are four issues in this case the first one is five years after the case was filed the district court erred by converting a summary judgment motion into a third twelve b one motion in order to find our complaint did not was not broad enough to cover the whole medically though the medic of the services community based services a medically fragile child would need a second th adopted an ascertained ability standard and a twenty three b to class action which has never been done by any court in the country for a twenty twenty three p to injunctive relief action aged out by the time this this case reached the stage no longer had stand even though the same court had held that the same adults had standing by virtue of capable of repetition by but evading review and forth the court also erred by deeming individual plaintiffs a g t h and a r s claim smoot not an ing this this court's broad holding in the houston vs mirage supermarkets case if this the initial case is the fact that the court did not apply the clear terms of rule and eight and even reading this complaint and this complaint when the court dismissed it in two thousand and two thousand and seventeen the court said that that the plaintiff's claims were limited notwithstanding the systemic relief that we asked for that was previously argued in this case are our claims were limited to solely private duty nursing services this this exact claim finding was belied by two prior holdings by t prior rulings on the motion to dismiss the first one was by judge rosenbaum in two thousand and thirteen finding that the central part of the plaintiff's claims in this case was the convenience of the caretaker standard within the medical necessity framework that was the holding in her case and she said in her decision which is document one seventy five that  the definition of medical necessity permeates every county in the complaint in addition if this court even looks at the complaint all five counts do not even mention private duty nursing services they mention medically in the set medically necessary services there is only one demand with it in the thirteen categories of relief by the end that even mentions it then after that this does not change the regulation the definition permeates the the the complaint i mean the the relief sought by the plaintiffs not only until the united states department of justice was deemed ineligible to participate and not have standing did this court and say plaintiffs are stretching and i saying that we did not allege the complaint sufficiently had judge rosenbaum said in twenty thirteen when reviewing the complaint now you're not alleging it sufficiently of course you would have had the opportunity to amend that did not happen now then we step into the mootness argument is it moot and the issue that we have with regards to move nissen we could look at troy yano or we can look at the sheely case the first thing first the court considers whether the terminations of the offending contact was unambiguous which rosenbaum gave a great analysis of this in her first order on d e one seventy five n t e u one seventy five she referred to the beta case taking one ice cube out of an iceberg it does not make the iceberg go away what we were attacked in here was not the ice cube it was the iceberg this is a huge you cannot surgically cr an offending practice it is the hallmarks of not being an ambiguous when you say an ambiguous it's not going to return for example when i sat in this court when i stood in this courtroom in the spot in the the court asked me to try on a case involved a supervisor of election who decided to use excessive overloading machines and then she said after the case was settled i'm going to use them it cured it there was nothing that they can do in this case these children have a whole panoply of different medically necessary services for a community based on living from fear a piece to transportation to wrest the canary therapies to home health  which are all still subject to the convenience the care taker extends standard this was all included within the complaint this was all dispensed with at the eleventh hour before trial policies and procedures were not seeking money nor can we seek money in a case that we're having a twenty three b two class action for the purpose that everybody's claims would be different we would never meet the  and i'm in a case like this because some people are institutionalized some people have risk of institutionalization some people are institutionalized for a certain amount of time there is no way that we could obtain a class however the device the purpose of a twenty three b two class action is to solve these issues of law on the commonality on this is medical necessity whether or not a parent has to rely a parent has to do medically necessary services to keep their medically fragile medically complex child alive now is the reason why we bought it brought the case that was the reason why people were institutionalized this is a broad systemic case one of the purposes why the title two was enacted to ensure that this these policies do not continue now the other issue we have in this case is the past our issue the nursing home reform at this is the gate keeping function to ensure that people are not institutionalized and children on institutionalized the court dismissed the nursing home reform act action because of the fact that the three people who were involved one had died the two were the two aged out there were no longer twenty one the nursing home reform act doesn't have an age limit on it so given the fact that the court denied our motion for classification and no longer had an age limit on the two people that were involved it should have still been held and they still continue to do that there are a high percentage of people that are not receiving their past ours to this date that has not changed and the federal law has been consistent further if this was certified as a class as was a unified class because children bounce back and forth into and out of nursing homes depending on the care they need and what and what happens to th to the effect that they bounce in and out of nursing home sites where i was in the class action and then if this was sort of fired as a class even those people that aged out because we're dealing with children and this is a six year old case would be capable of would be would relate back and those people can be class representatives the last issue in this case is a are they are is the exact houston vs mirage supermarket case this is a girl who moved out of the state because she wanted health care wants to move back into the cases family ties expressed an intention to move back once the rules were changed it has not been done the court held it was too speculative it flies in the face of murat the last issue that i'd like to address is there is no difference between this case and the rule eight issue and what this court just held in the haynes says houston case which is a twenty eight hundred case in that case the court said this case is not moot because some of the relief requested in the complaint remains outstanding and could be granted by the court the only reason why it please the court and i will begin with the mootness question and try to provide some context to the district court's conclusion that this case is moot the complaint runs approximately forty five pages it contains many very broad general statements it refers to the state's policies procedures rules regulations acts omissions and it refers to medically necessary services medicaid services community based services it uses very very broad labels and uses them often when it speaks of specifics when it speaks in concrete terms it speaks a very of several defined policies the only one that was still at issue in this case at the conclusion was the was one element of the medical necessity definition that's the so called convenience standard and its application to private duty nursing services what we call p d n services the judge rosen bonds did not say that this case was broader it did not say that medical necessity as a general matter permeates the entire case what occurred in that order was that she concluded that the state's state's changes to make the convenience standard n services were not yet final they were not yet formalized because there were still a general rule in the administrative code that applied to all services including p d and services so when the state made his change it said ok now we're not going to apply the convenience standard to p d n services n service says what was it was what was truly problematic because the state had a policy that said that if a parent is able to provide or some other caregiver is able to provide private duty nursing services then we will deem that to be for the convenience of the the parent or the caregiver and we want to authorize private to the nursing services to medicaid so essentially it was substituting the parent for a nurse and that's what was their grievance that's what they complained about that's what in their complaint they they they discuss as they had denials of private duty nursing services on that ground they were they claim to have been injured by that and that's what the state changed and it changed that beginning in january of two thousand and thirteen and said to its vendor from now on don't apply the convenience standard  to cross reference the definition of medical necessity and to say that the convenience standard no longer applies to private duty nursing services when that was adopted after all applied to other medically now it still applies to other services and when that rule change was final that's when the district court concluded that was the grievance that you alleged in your complaint now it has been resolved the undisputed evidence is that for since january of two thousand and thirteen the convenience standard has not been applied to p d n service as the mad straight says there's never been a clear case of a of an unambiguous terminations of a policy as in this case considering the steps the state had taken for a period of three and a half years and the court dismissed the case now so why does it not apply to other services because there's nothing in the complaint to allege any sort of concrete harm or grievance or that they have any sort of stake in the other services or that the state misapplied the convenient standard the way that it did with p d and services to other services there's no allegation that the state ever required parents to step in and perform therapy services or parents to step in and perform you know other medicaid services that these children were receiving there's no allegation in the complaint that these plaintiffs were unlawfully denied any service under the convenient standard other than p d n services so that's the complaint that's the that's the injury that was pleaded the the fact now or then let me go back to november of twenty sixteen we changed the rule then the district court found that we've satisfied the movement's requirement in that and the case was i'm sorry the first step after that was that the court dismissed the department of justice claiming almost from the day that the department of justice claim was dismissed these plaintiffs began to identify new claims new grievances that were not never raised before not raised in the complaint not raised during the course of the litigation we list i believe in footnote seven of our of our brief fourteen you claims that they propounded once the department of justice is case was dismissed these were claims that have had to do with services provided to adults services other than p d n services you know documents that the state h issued that were never at issue in this case before and then we went back and we looked at the complaint and and we saw none of these had been alleged in this case there their argument for saying that this had been these claims have been alleged as well just look in the complaint we say medically necessary services or we say we are challenging the state's policies procedures rules regulations customs x omissions well if that's sufficient to plead a claim then they've played virtually every claim that could be conceived of and we have we have no notice of what new claims they might might invent or or posit at any point during this litigation a plaintive cannot simply say particularly after twenty b n after it ball cannot simply say here's a label all services this litigation by these individuals we have this kind of ways that things can come and go that is on the move notice there clearly something to the fact that people can age out people can die when you have individuals you say they're throwing up things at the last minute isn't that some argument that this type of litigation can better be handled by the department of justice  could bring it all into one ball of wax that isn't going to go away but can also then be brought together the two cases seem to be a little connected i recognize your answer may be no authority no authority but is there any let's pass that for the moment is there a practical thing that it's better to handle it through d o j well i think that would be a choice that congress would have to make i think that even if i'm right about that i just still didn't do it ok or seldom do about it but i do think that i do think that they had every opportunity to raise the claims that they wanted to raise the trial court extended the discovery deadline seven times this case was filed in tw twelve we may have ended their complaint twice they could have amended it again if they really had grievances and this is this is the limitation that standing imposes so you know it might be nice to have someone who can come into court and say i'm going to challenge all of these different policies and let's let's get it all straightened out but that's that's not you know that's not typically how how litigation works in light of article three s case of controversy requirement so if these plaintiffs had a grievance they could have brought it very easily over a six year litigation even now we don't know what exactly they're challenging so they say that they don't want the convenience standard applied to two other services you know has have they have a soft other services do they need other services have even tonight other services is there any risk that they would be denied other services is there any indication that the state has applied the convenience standard to other services is there any risk that that it had denial of those other services would cause them to be institutionalized where they really be institutionalized if they're denied say occupational therapy or speech pathology there are no facts in the record there's not even a fact in their complaint to that effect so going back now and expanding this case beyond the well pleaded allegations of the complaint we think that the district court properly said no to that and the district court observed this that a geisha for six years it knew what was at issue in this case it knew what was really in dispute between the parties and it read the complaint properly not not reading too much into labels and and and the very broad generalities that are in the  adversary say well there's no age limit on that so they shouldn't have declared it moot because agee in th aged out is that accurate and i had thought they had some claim based on the at risk children but i didn't hear him raise that am i wrong about that of a first of the n h r a claim there are couple of answers to that first that claim was dismissed not because of the just didn't hear him or he didn't want to take his time on it that they were saying that the quote at risk children should count as institutionalized because they might be institution i think what they're saying with specifically with respect to the pas is that a child who is living in the community and who is not institutionalized could plea to claim challenging the state's past or process the problem here is that they didn't the complaint alleges or that only the institutionalized children bring that claim they said that directly in their motion i believe their initial motion for class certification so that's the district court simply read their complaint the way that they alleged it the other thing with respect to pass are is that florida has essentially to pass our process as one for children and one for adults the past our process for adults is handled through a different department it's handled through the department of elder elder affairs that's the entity that administers that process and they are not a party to this case  so so even if even if they had alleged the past or claim on behalf of all of the plaintiffs they would not have alleged a claim as to the way the state administers that pass our process program with respect to adults because that's a that's an entirely different department that's not a party to this case so i think those are the different answers to the n h are a passer claim with respect to ascertain ability they say that no court has ever applied ascertain ability to  class for equitable relief that's exactly what the former fifth circuit did in the dobro marker case which we cite in our brief that was a case in which the plaintiffs sought certification of a class of residence active quote active in the peace movement end quote recognized because eventually there's going to be if the plaintiffs are successful and injunction that the state has to implement and the state needs to know who is who is in this class it is entitle to the benefit of this injunction who can enforce this injunction and if it's a respect to the the aging out i think that they mention capable of repetition that is she was not briefed in this case but they also argue that they continue to receive medicaid services of course they continue to receive medicaid services but their complaint is very clear that they're challenging policies that only applied to children and in fact their complaint says in explicit terms that these policies that they're challenging to not apply to similarly situated belts so i think that's that's clear enough with respect to a r who moved to colorado her her mother in her deposition expressed an interest in returning to the state of florida said that they would like to return to the state of florida but there was no concrete plan to completely different from the houston case on which the plaintiffs rely in the houston case the individual was challenging architectural barriers at a at a supermarket the plaintiff drove past that submitted an affidavit saying that he drives past that supermarket regularly has done so in the past will do so in the future who would like to shop at that supermarket and and the court this court said that that was a that was a clear enough concrete plan and that there was likely that the injury would recur very different here if i invite the court to review the deposition of a r s mother she makes statements such as well it's moving back to florida is an option we would consider there's no concrete plan as to when that it would occur there's no definiteness as to the circumstances under which it would occur so this is about people challenging practice when they just want to move in and i mean lots of people move florida and some of them could be very concrete  general case law that says they could we didn't find that case your honor but i think that that highlights the fact that this case is moot because if anybody with a with a general of elation to move to florida can bring an action challenging florida's policies we would we would have a very different than a geisha landscape in florida now certainly if someone had a very kind had a concrete plan which is what is required not simply someday intensions as luke han said but a concrete plan perhaps but and i think for the point is well well taken if this is the point that a our situation is analogous to that of any person who is residing outside of florida and the question ultimately is should be is there really a concrete plan to movement or is this just a person who would like to challenge florida's policies on the basis of something that might or might not happen in the future unless the court has further questions we ask the court to affirm seven which is the second motion to dismiss this court the court accurately i'm summarizing what judge rosenbaum said on page five second this court determined that notwithstanding any changes that may become finalize defendants has not cured at least one important provision that was relevant to the plaintiff's case specifically this court held that state has not changed regulatory definition a medical necessity or medical necessity as prescribed in rule fifty nine g one zero one zero zero of the florida code which plaintiff has argued as a basis for their claims this is the same thing judge rosenbaum's had first this this gives plaintiffs this gives lawyers no guidance whatsoever for to come six years down the road and say you didn't you didn't accurately a legit the issue of medically necessary services and community based services is clear and defined it's clear and defined in the defendant's own documents it's clear and defined in cases like own state itself that define community based services for them to say we don't know what medically based services are is specious in addition your honour's the issue that this case was was mooted out for the two adults  because of the fact that they were no longer institutionalized is also incorrect that is also in document two eighty seven and the court goes in length and that's where the court says capable of repetition but evading reveal the court  not say that they were no longer eligible for this case as as folks that were not institutionalizing the issue of what regulations applies was not briefed and is not in the record with regard to the difference between  case involves three thousand well defined children who who receive medicaid services who the steak knows well and pays them for their services that that pays their providers for the services that they get the fact is to say that it is the issue with ascertain ability is how do we know one who is at risk or who is not the issue with the we're dealing with is the issue of the change of one regulation that will only apply to medically medically fragile or medically complex children that are that have medically necessity so we're dealing with a universe here of thirty five hundred children at most it's not any person who is against the war so it is a dramatically different situation than that in fact every single case that has been litigated under title two is similar and the fact that it talks about medically necessary and it talks about one discrete service that were attacking the issue is this was narrowed and that was a surprise and it was unfair thank you very much your honour's and take you for your consideration