00:00Could we talk about, Mr. Bursch, the difference between a benefit and a right?
00:03I mean, I assume from your answer to Justice Sotomayor that you agree that the state has
00:08an obligation here.
00:09Is that correct?
00:10To provide benefits on the plan, but significantly, it's—
00:13The state has an obligation to provide this particular thing, right, which is the state
00:19has an obligation to ensure that a person—I don't even know how to say this without
00:25saying right—has a right to choose their doctor.
00:28That's what this provision is.
00:30It's impossible to even say the thing without using the word right.
00:34Has a benefit to choose their doctor?
00:37The state has to ensure that individuals have a benefit to choose their doctor?
00:42The state has to ensure that individuals have a right to choose their doctor.
00:46That's what this provision is.
00:48Well, the language that you're focused on, may obtain, is not clear rights-creating language
00:53for four reasons.
00:54I don't want four reasons.
00:55I want you to answer my question.
00:58The obligation is to ensure that individuals can choose their doctor.
01:03And when we speak of that, the obligation is to—I mean, there's a correlative right.
01:09There's an obligation.
01:10There's a right.
01:11And the right is the right to choose your doctor.
01:14Justice Kagan, I won't go through my list.
01:16There's many reasons why that analysis is wrong.
01:19But simply because we understand colloquially that something might be a right doesn't mean
01:23that Congress has put a state on clear notice that it could be sued in federal court under
01:271983 and subjected to liability and attorney fee shifting if it doesn't follow that provision,
01:33particularly in a substantial compliance regime.
01:35Well, here's what the state knows.
01:36The state knows it has an obligation.
01:39The state knows that that obligation runs to individuals and that individuals are specifically
01:45discussed in the statute.
01:47And the state knows the content of that obligation, which is that every individual has a right
01:52to choose their doctor.
01:53So what doesn't the state know that's important here?
01:56Whether it's going to be sued in federal court.
01:58Well, if you know that you have an obligation and you know that the individual has a right
02:04to choose their doctor, that suggests that there's some kind of enforcement.
02:08Gonzaga makes clear that there's a difference between a duty to provide a benefit and a
02:13right that subjects you to 1983 liability.
02:16We would expect a provision like this to use individual because, of course, a doctor treats
02:20an individual.
02:21But the word individual can't be rights creating.
02:24It appears more than 400 times just in 1396A.
02:27That's hardly atypical.
02:30One of the benefits provided by the act is that you may choose your own doctor.
02:36If the person thinks that's not being provided, what remedies do they have?
02:43They have a very specific remedy if they are denied benefits.
02:46There's an administrative appeal process that they can go through.
02:48But there is a separate remedy for providers who are disqualified.
02:52They also have an administrative appeal that could go through the state court system and
02:56that could come to this court if necessary.
02:58And it makes sense that Congress would create the appeal right for the disqualification
03:02in the provider, not the beneficiary, because I'm sorry, the Medicaid recipient can only
03:10sue a denial for services that were actually rendered.
03:15Yes.
03:16If a doctor can't render them, then they can't sue under that.
03:19That's correct.
03:20And the requirement of an administrative review process is not actually required by the act.
03:27It is something that a state can choose to give and they can choose its limits.
03:32Here they can only challenge, providers can only challenge a certain subset of disqualifications
03:38via South Carolina's administrative review process.
03:42They can only challenge a disqualification because of a criminal conviction or abuse.
03:49So the providers here did go through the administrative process and they were told
03:53they can't sue for this here.
03:55Justice Sotomayor, that is what they put in their brief.
03:57That is absolutely not what that regulation says.
04:00126.404 says that those particular things that you mentioned, like a criminal conviction
04:04or recouping payments.
04:05So why were they denied here?
04:08Can I finish?
04:09They're not.
04:10Go ahead.
04:11Yeah.
04:12So first of all, those things that you mentioned, that gives them advance review before consequences
04:16take place.
04:17But the regulations make absolutely clear that they could raise anything that they wanted
04:21in their administrative appeal.
04:22And the reality is, they haven't pursued their administrative appeal yet.
04:25They went straight to court, they recruited a beneficiary, they filed their 1983 suit.
04:30The state responded to that with a brief in opposition to preliminary injunction motion
04:35and said, hey, your remedy, which you agreed in your contract was your exclusive remedy,
04:40is to go through the administrative appeal that we offer.
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