[00:00:01] Speaker 04:
May it please the court.

[00:00:02] Speaker 04:
My name is Michael Gillette.

[00:00:03] Speaker 04:
I'm here representing the hospitals in this case, which involves the commitment of persons suffering from mental illness to the civil custody and control of the state.

[00:00:19] Speaker 04:
My clients are responsible in most instances for receiving individuals who are in an acute phase of a mental problem and stabilizing them so that they can receive further treatment elsewhere.

[00:00:36] Speaker 04:
And what we have is a situation in which, although the Oregon law, which is quoted in our brief, directs that persons who are stabilized be sent to the Oregon Health Authority, and the Oregon Health Authority placed them in a facility which is designed to further their rehabilitation and permit them to return to society, the Oregon Health Authority won't do it.

[00:01:03] Speaker 04:
Instead, what's happened is that the individuals who have been stabilized and then who have received a court hearing, and by the way, the court hearing is held while they're still in the hospital.

[00:01:16] Speaker 04:
It's one of the outcomes of COVID which you can regard as good or bad depending on how you feel about that.

[00:01:21] Speaker 04:
But the hospital which finds itself in a position in which someone they have stabilized,

[00:01:29] Speaker 04:
is ready to be taken in by OHA in place somewhere where they can receive the kind of long-term care that is required in order to really make them safe to return, safe to themselves, safe to the community.

[00:01:40] Speaker 04:
To return to the community won't take them.

[00:01:42] Speaker 00:
May I ask a clarifying question?

[00:01:44] Speaker 00:
Because I think the complaint is quite extensive in laying all of this out.

[00:01:49] Speaker 00:
Is there a financial difference if someone comes in, they're in the acute care, but

[00:01:56] Speaker 00:
They're now evaluated ready for release from acute care, but they can't be released because there's nowhere for them to go.

[00:02:03] Speaker 00:
Does the reimbursement to the hospital change or does it remain an acute care reimbursement or how does that work?

[00:02:12] Speaker 04:
Judge, I've asked that question of my clients and their answers depend on their present experience, but apparently people who come in needing acute care normally receive whatever coverage for acute care they're entitled to by Medicare or Medicaid or by private insurance or whatever.

[00:02:33] Speaker 04:
But the recompense for putting them out to another facility depends upon whether that particular kind of insurance also provides that kind of coverage.

[00:02:47] Speaker 04:
So there is no flat answer.

[00:02:49] Speaker 04:
The financial consequence to my clients is

[00:02:54] Speaker 04:
just that they have someone there that they are not qualified to care for.

[00:02:58] Speaker 04:
Let me rephrase that.

[00:02:59] Speaker 04:
They're not qualified to provide the kind of care those persons are supposed to be getting.

[00:03:05] Speaker 04:
There's no guarantee that there's going to be any particular payment to them after the acute phase is finished.

[00:03:15] Speaker 03:
Let me elaborate a little bit on Judge McHugh's questions.

[00:03:18] Speaker 03:
You just said no guarantee they'll be getting any payment?

[00:03:23] Speaker 04:
My understanding is that

[00:03:26] Speaker 04:
For acute care, they get paid.

[00:03:28] Speaker 04:
If there's any source of payment, they're going to get paid.

[00:03:30] Speaker 04:
And who are they being paid by?

[00:03:32] Speaker 04:
It depends upon whether they have private insurance or whether they're in a cooperative of some kind or whether they're subject to Medicare and Medicaid.

[00:03:41] Speaker 04:
But Medicaid, at least, isn't going to pay for long-term rehabilitative care.

[00:03:47] Speaker 04:
And I think that's true of a number of private insurance arrangements as well.

[00:03:50] Speaker 04:
So the answer is there is no answer.

[00:03:52] Speaker 04:
It depends on the individual entirely.

[00:03:55] Speaker 03:
Thank you.

[00:03:56] Speaker 00:
And you're asking simply a declaration or injunctive relief.

[00:04:02] Speaker 00:
Is that right?

[00:04:02] Speaker 04:
That's correct.

[00:04:05] Speaker 04:
It's a situation in which this problem arose over a long period of time.

[00:04:09] Speaker 04:
And in fact, you can trace it all the way back to the 80s when there was a complete shift in national policy concerning persons who were suffering from mental illness.

[00:04:18] Speaker 04:
And it can't be cured tomorrow.

[00:04:21] Speaker 04:
But it's not going to be cured at all until a state agency which is responsible for the cure is told to do your job.

[00:04:28] Speaker 04:
Instead, by leaving the patients with us when we're not qualified to provide the kind of care that they need, what's happening is our resources end up being dedicated in part to looking after those people as best we can, and we become just that much less available to those who need our care and for whom we could provide appropriate care.

[00:04:51] Speaker 04:
So that's what the case comes down to.

[00:04:54] Speaker 04:
We're harmed because we can't do the work our facilities and our personnel are supposed to be capable of doing for some people, because we've got other people we're required to hold onto and maintain, which I guess would be the best word for it.

[00:05:10] Speaker 00:
But you also intimated or maybe declared more

[00:05:17] Speaker 00:
clearly that there are no facilities, there are not sufficient facilities for longer-term care patients to go to, is that right?

[00:05:27] Speaker 04:
Judge McKeown, I was responding in part to your own remark.

[00:05:30] Speaker 04:
The answer is yes.

[00:05:31] Speaker 04:
We've not just animated that.

[00:05:33] Speaker 04:
That's the case.

[00:05:36] Speaker 04:
There are, and I'm going to get the numbers all wrong, but there are 900 or 1,000 available long-term care beds.

[00:05:44] Speaker 04:
And in fact, the need is much greater than that and is going to continue to be much greater than that.

[00:05:50] Speaker 04:
It is going to require an investment of time and money and thought into creating a system which provides the care that the statute directs these people to receive.

[00:06:00] Speaker 04:
But in the meantime, as hospitals, we're required to keep these people because, one, they're subject to a judicial order that says they're to be taken care of, and secondly, because we're a hospital.

[00:06:14] Speaker 04:
We're not supposed to turn people who are still ill

[00:06:17] Speaker 04:
whether mentally or physically, back onto the street.

[00:06:20] Speaker 04:
And so we don't do that.

[00:06:23] Speaker 04:
Now, there's been an attempt by OHA to suggest that, and frankly by the district court judge, to say, well, you could just quit.

[00:06:32] Speaker 04:
you know, stop providing the care you're providing.

[00:06:35] Speaker 04:
That didn't strike me as being a particularly insightful way to approach the problem since hospitals are part of a sort of three-legged stool of security for individuals everywhere in our state and I dare say everywhere else.

[00:06:48] Speaker 04:
The police, the fire, and the hospitals are the places for emergencies.

[00:06:54] Speaker 04:
And we provide emergency care and we're good at it.

[00:06:57] Speaker 04:
But we are not

[00:07:00] Speaker 04:
We are not built for and we are not staffed for dealing with people who require the long-term care and the special attention, individualized attention that's necessary in order to help these people return to society and be useful.

[00:07:14] Speaker 03:
Judge Fletcher, you looked like you were going to... Well, I want to address or have you address the Article III question, the Article III standing question.

[00:07:25] Speaker 03:
This is now hospital standing on its own behalf.

[00:07:29] Speaker 03:
Yes.

[00:07:29] Speaker 03:
But not yet getting to third party standing.

[00:07:31] Speaker 04:
Understood.

[00:07:32] Speaker 04:
The judge appeared to feel that there was no satisfactory traceability between any harm that the hospital was suffering and anything that OHA had done.

[00:07:46] Speaker 04:
I suppose the more accurate way to put it would have been to say what OHA hadn't done.

[00:07:50] Speaker 03:
Well, Jeffrey Judge, you guys are basically volunteers.

[00:07:53] Speaker 03:
You signed up for this program and now you're complaining.

[00:07:56] Speaker 04:
We didn't sign up for this program.

[00:07:58] Speaker 04:
That's just false.

[00:07:59] Speaker 04:
We did not do that.

[00:08:00] Speaker 03:
You signed up for a program that turns out not to be the actual reality.

[00:08:04] Speaker 04:
Yeah.

[00:08:06] Speaker 04:
We signed a deal to do X, and now we're told, well, surprise, you're also going to have to do Y because we're telling you to.

[00:08:14] Speaker 04:
In the normal administrative law context, the OHA doesn't have the authority to delegate to us something that we didn't agree to do for them.

[00:08:23] Speaker 03:
It seems to me that you're right with respect to whether or not, even if you did volunteer, we've got the case law out there that says certain volunteers, and they nonetheless have Article III standing, the question not really addressed, and maybe not yet teed up, you've got a takings claim and you've got a due process claim, and you may or may not succeed, but the court just didn't address that.

[00:08:49] Speaker 04:
We can't get the door open.

[00:08:51] Speaker 04:
We're not being allowed to come forward with our evidence and work out a solution for the problem.

[00:08:57] Speaker 04:
Yeah, we haven't had that shot yet.

[00:08:59] Speaker 04:
This is a 12b6 meter.

[00:09:01] Speaker 00:
So let's assume the hospital, like Judge Flusher, I'm going to get later to the patients and the third party standing, but let's assume that the district court complied with your request, and that is to issue this

[00:09:18] Speaker 00:
declare that OHA's policy violates various Oregon statutes and possibly various constitutional protections.

[00:09:32] Speaker 00:
And then, where would you be?

[00:09:34] Speaker 00:
They would say, well, there's no beds.

[00:09:36] Speaker 00:
I mean, we can't manufacture a bed out of thin air.

[00:09:39] Speaker 00:
So where would you be?

[00:09:41] Speaker 00:
I'm trying to understand the practical implication.

[00:09:43] Speaker 04:
Sure.

[00:09:44] Speaker 04:
The day afterward, we'd be in the same position we're in now.

[00:09:46] Speaker 04:
That is to say, we'd have people with us who shouldn't be with us and who needed another kind of care.

[00:09:52] Speaker 04:
That can't be fixed in a day.

[00:09:54] Speaker 04:
But the judge, if the judge is willing to enter an order stating that we're entitled to relief, then we would apply to the court for an order to OHA at least convening a group.

[00:10:07] Speaker 04:
You were going to hear another case today that involved that same process being used in Oregon with respect to those who had been committed.

[00:10:13] Speaker 04:
in the criminally convicted or accused side of things.

[00:10:18] Speaker 04:
It would be necessary for people to get together and propose a solution.

[00:10:22] Speaker 04:
There is in fact a movement underway in the Oregon legislature to take another look at this problem, but then the other look is going to then require weeks and months and years of well-intended effort in order to permanently solve the problem.

[00:10:40] Speaker 04:
In the interim, we will continue to care for these people because we're a hospital and because that's what we're supposed to do.

[00:10:47] Speaker 04:
It's not a satisfactory arrangement from our point of view, and it missupplies our assets to a degree, but to turn them out,

[00:10:58] Speaker 04:
Or to say, all right, you folks, we've stabilized you now, now you can go out on the street again.

[00:11:04] Speaker 04:
That's not medicine.

[00:11:06] Speaker 04:
That's not performing that service.

[00:11:09] Speaker 03:
This is kind of a follow on.

[00:11:11] Speaker 03:
Assume for a moment that you were to, we were to fine standing and we were to say that this can go forward.

[00:11:18] Speaker 03:
This is a version or a carry-on of Judge McKeown's question.

[00:11:24] Speaker 03:
What then would one of the possible remedies be that the state has to compensate you for keeping them in this long-term way, the compensation that you apparently in some cases are not receiving?

[00:11:36] Speaker 04:
Your Honor, I don't think that would work, at least I can't imagine it working the way things stand now, because we can't do this work.

[00:11:44] Speaker 04:
This is not, if they compensate us for something.

[00:11:47] Speaker 03:
Well, I understand you can't do this work, but nonetheless you are keeping them in a way that you say really is not appropriate, but you're nonetheless keeping them.

[00:11:55] Speaker 03:
And it's a considerable expense to you.

[00:11:57] Speaker 03:
Apparently, in some of these cases, we're not getting reimbursement.

[00:12:00] Speaker 03:
Well, if your takings claim succeeds, well, what takings is the government imposed an obligation upon you for which it owes money, but it's not paying.

[00:12:09] Speaker 04:
This begins to slide over toward the reason we also wish to appear in a representative capacity.

[00:12:14] Speaker 04:
We don't want money.

[00:12:16] Speaker 04:
We want to help these people.

[00:12:18] Speaker 04:
And the money ain't the answer.

[00:12:22] Speaker 04:
And if that seems a casual answer, I apologize, but that's literally it.

[00:12:27] Speaker 03:
No, I appreciate the answer.

[00:12:28] Speaker 03:
It does not appear to be a casual answer at all.

[00:12:30] Speaker 04:
We're not in that line of work.

[00:12:32] Speaker 04:
We're not for profit.

[00:12:33] Speaker 04:
We'd prefer to be not for profit for the right people.

[00:12:39] Speaker 03:
unless the court has other questions uh... and eddie paying attention to the judges reminder with respect to no penalty would be imposed i'd like you to address the third party standing because we're quite accustomed to the third party standing where the doctor is advocating for his or her patients and the doctor wants to provide care for the patients this is an odd one you're advocating for the patients because you don't want to provide care for them which gives me pause

[00:13:09] Speaker 04:
Well, I guess I want to phrase it differently, because it works out better for me.

[00:13:13] Speaker 04:
I want to say we're advocating for our patients getting the appropriate level of care, which, as it happens at the moment, we cannot provide.

[00:13:20] Speaker 03:
No, no, that's another way and an accurate way of saying it.

[00:13:23] Speaker 03:
I get that.

[00:13:25] Speaker 04:
And that's the way I would want to go at it.

[00:13:27] Speaker 04:
Let me suggest, and we've cited cases to you, and you will find them useful or not, as appears appropriate.

[00:13:35] Speaker 04:
There's a case from Pennsylvania involving a group of psychiatrists who brought what amounted to a claim that's reasonably similar to the one we're bringing, trying to influence the care of those being given psychiatric patients.

[00:13:52] Speaker 04:
The idea here is that if the only care we can provide is to advocate for them getting care somewhere else, then that's the care we're going to advocate for.

[00:14:02] Speaker 04:
This is still part of our mission.

[00:14:04] Speaker 02:
Let me ask you this, why couldn't someone else, other than the hospital, represent these people?

[00:14:11] Speaker 02:
I understand these people are going to need extra help in terms of finding lawyers and representation, but there are many other groups who can step up and represent them.

[00:14:20] Speaker 02:
Why is it the hospital, which I appreciate you've done a very good job of articulating why there isn't a conflict.

[00:14:26] Speaker 02:
But I could see other groups that would have an even easier time stating why there isn't a conflict.

[00:14:32] Speaker 02:
So why can't one of those groups represent in these third-party claims?

[00:14:35] Speaker 04:
To the extent other groups exist, they haven't stepped up.

[00:14:38] Speaker 04:
They just haven't done it.

[00:14:40] Speaker 04:
There is a group that is representing, again, the criminally accused in Oregon, Disability Rights Oregon, which has done a splendid job of representing that group.

[00:14:50] Speaker 04:
But it has not seriously dipped its toe in this water, it's left this to other people.

[00:14:57] Speaker 04:
There's also an organization called, I think it's NAMI, which is an organization that's made up in part of people who actually have been patients in this kind of system and who are advocating for others who are suffering from mental illness.

[00:15:15] Speaker 04:
They are an advocacy group.

[00:15:16] Speaker 04:
They're not put together to provide the service.

[00:15:19] Speaker 04:
And the advocacy that we're providing, they would prefer to support rather than sponsor.

[00:15:25] Speaker 04:
So you have an amicus brief from them that says what they said.

[00:15:28] Speaker 04:
We agree with that.

[00:15:30] Speaker 04:
So the answer, Your Honor, is that there ain't many folks, and none of them have stepped up.

[00:15:36] Speaker 04:
And this has been going on a long time.

[00:15:38] Speaker 04:
We didn't just discover this last Tuesday.

[00:15:40] Speaker 04:
And so we've been driven to it.

[00:15:42] Speaker 00:
You have two groups of people here.

[00:15:43] Speaker 00:
You have the criminally committed that you say potentially the disability rights organization could represent.

[00:15:51] Speaker 00:
But then you have those who come in on just a regular civil commitment, right?

[00:15:59] Speaker 00:
Has anyone ever represented them as a group?

[00:16:04] Speaker 04:
No.

[00:16:06] Speaker 00:
Are you aware of any individual suits?

[00:16:09] Speaker 00:
Yes.

[00:16:10] Speaker 04:
OK.

[00:16:11] Speaker 04:
Yes.

[00:16:11] Speaker 04:
There was one that was prosecuted by one of the hospitals, one of my clients.

[00:16:16] Speaker 04:
And I'm trying to remember when, but it wasn't too awful long ago, two or three years ago.

[00:16:20] Speaker 04:
And they pushed the lack of facility and so on against OHA in one.

[00:16:27] Speaker 04:
But the difficulty was that was one person.

[00:16:29] Speaker 00:
And we're talking about- So it was on behalf of one patient?

[00:16:31] Speaker 04:
That was on behalf of one patient only, yeah.

[00:16:35] Speaker 04:
But again, that was a hospital pushing it.

[00:16:38] Speaker 04:
Just, this isn't sexy with respect.

[00:16:41] Speaker 04:
It just is simply something that folks are not inclined to dive in on.

[00:16:46] Speaker 04:
And when you look at

[00:16:47] Speaker 04:
the provisions of Oregon law, and I think this is true most places, with respect to representation.

[00:16:52] Speaker 04:
A person who is faced with civil commitment is entitled to counsel, and there is a very carefully set up process by which the person's mental state is judged by an appropriate judicial officer.

[00:17:07] Speaker 04:
But the minute they are committed to the care and custody of the hospital, Oregon Hospital,

[00:17:16] Speaker 04:
There is no further legal help for them at all.

[00:17:19] Speaker 04:
No provision in Oregon law whatsoever.

[00:17:22] Speaker 04:
It's either OHA does its job or they are lost.

[00:17:27] Speaker 04:
And so, and I guess this is addressing your question, Judge Fletcher.

[00:17:34] Speaker 04:
This is an honor we just as soon have skipped.

[00:17:37] Speaker 04:
But somebody with a conscience needs to do this.

[00:17:44] Speaker 04:
We are in the business of trying to help those who can't help themselves.

[00:17:49] Speaker 04:
So it's our job.

[00:17:51] Speaker 04:
And you can imagine the time it might take for somebody else to tool up even if we could point to somebody else, which would include Disability Rights Oregon.

[00:17:59] Speaker 04:
They have a long-standing process they've gone through before this same judge with respect to the care that's being given to persons who are committed in the criminal justice system.

[00:18:12] Speaker 04:
And it's not the same kind of problem.

[00:18:14] Speaker 04:
so that I'm not sure that they could tool up with it for some period of time and they'd have to expand what they're doing because right now that's all they're doing and they're using their resources to do that.

[00:18:26] Speaker 04:
There just isn't anybody.

[00:18:27] Speaker 03:
And there might even be some conflict between your client or rather the patients that you have at issue and the criminal because as I gather what's happening is that the Oregon Hospital is giving priority to the other two groups and your people are at the bottom.

[00:18:44] Speaker 04:
I didn't want to say it that way, because I admire what DRO does.

[00:18:48] Speaker 04:
But the truth is that whatever pot of cash eventually will be used here, there is one group that already is seriously invested in getting that pot of cash for their particular set of clients, and they are not ours.

[00:19:05] Speaker 04:
If the court would allow me, I would like to reserve five minutes of rebuttal if I've still got it.

[00:19:09] Speaker 02:
I'll compromise and give a four.

[00:19:13] Speaker 04:
That's more than fair, and I'll get out of your way.

[00:19:16] Speaker 04:
Thanks very much.

[00:19:27] Speaker 01:
Good morning, and may it please the court, Dustin Bueller, appearing on behalf of defendants at the LEs in this matter.

[00:19:33] Speaker 01:
I think the key thing that opposing counsel just said, which really is essential to the three issues before this court, is that this is a long-standing, challenging problem that Oregon faces, and it doesn't face it alone.

[00:19:46] Speaker 01:
Many other states are facing similar challenges when it comes to providing adequate care for civil committed individuals.

[00:19:53] Speaker 03:
You see, a challenge that Oregon is facing.

[00:19:55] Speaker 03:
It's a challenge because Oregon is not stepping up to the plate.

[00:19:59] Speaker 03:
It's a challenge because Oregon is not fulfilling its responsibility and then we're trying to figure out how do we deal with that.

[00:20:06] Speaker 01:
So that is what the complaint alleges, certainly, Judge.

[00:20:09] Speaker 01:
And what is key, though, about that is that when you look at the Article III standing question, and I'm happy to take each of the three issues before the court in order, unless you want to steer me in a different direction.

[00:20:21] Speaker 01:
But if you look at Article III standing, as you've alluded to, Your Honor,

[00:20:26] Speaker 01:
The question really here is well was this voluntary right and and that is I mean this court will ultimately determine whether there's jurisdiction or not.

[00:20:34] Speaker 01:
But the district court concluded that not withstanding those real problems alleged in the complaint here.

[00:20:41] Speaker 01:
The hospital plaintiffs have known about those challenges for decades, as opposing counsel just told you, and they have not only sought certification to provide acute care services, but they have every two years re-upped that certification.

[00:20:55] Speaker 01:
And at some level, that is going to break the chain of causation, as the case law describes,

[00:21:01] Speaker 01:
such that you don't have Article III standing to seek an injury that is not surprising and that you have known has existed for, as plaintiffs say, for decades.

[00:21:11] Speaker 00:
It seems like a kind of a nukatory argument in the sense that, let's say they don't seek certification.

[00:21:18] Speaker 00:
Who's going to care for the acute care people?

[00:21:20] Speaker 00:
If they get dropped into their hospital, they have to, right?

[00:21:25] Speaker 00:
That is an argument that maybe has some legal legs way back, but I'm having trouble getting a practical head around it.

[00:21:34] Speaker 00:
So maybe you can help me.

[00:21:36] Speaker 01:
Certainly, Judge.

[00:21:37] Speaker 01:
So as described in the briefing, there is this, let's call it the ER's door, right?

[00:21:45] Speaker 01:
The emergency room care.

[00:21:46] Speaker 01:
And some of these patients that the hospitals seek to represent in a third-party capacity here do come in through those doors.

[00:21:54] Speaker 01:
And there are federal laws, state laws that require the provision of emergency care.

[00:21:59] Speaker 01:
And although there was confusion, I think frankly, the lawyers for both parties at the district court hearing were not consistent in their statements at times.

[00:22:09] Speaker 01:
I think when you're civilly committed,

[00:22:12] Speaker 01:
you don't just get let loose that that is not a choice right so just let's just make that clear here.

[00:22:18] Speaker 01:
But I I still think if you look at the moment at which they have a claim that they're seeking relief for and that moment to be clear is somebody has been civilly committed and placed in their hospitals

[00:22:31] Speaker 01:
And there's a moment sometime after that where they then need care that plaintiffs would not describe as acute care.

[00:22:38] Speaker 01:
So that is the moment at which they have their asserting claims.

[00:22:43] Speaker 01:
And if you look at that moment,

[00:22:45] Speaker 01:
For years, they have sought to provide acute care services because there is an advantage to the hospitals in doing so, a business advantage in doing so.

[00:22:55] Speaker 01:
The record shows that.

[00:22:56] Speaker 01:
The complaint shows that, too.

[00:22:58] Speaker 01:
And they've done that with full knowledge that the bitter comes with the sweet, so to speak.

[00:23:03] Speaker 00:
Under the law, you can sign up for acute care, but you didn't sign up for long-term care.

[00:23:10] Speaker 00:
So it would seem to me, at that point,

[00:23:13] Speaker 00:
They have not taken advantage of the system, because even if they signed up for acute care, it should have ended.

[00:23:21] Speaker 00:
That's what they signed up for, was a fixed term.

[00:23:25] Speaker 00:
But now, they, like some of these individuals, are committed for a long time.

[00:23:31] Speaker 00:
So it seems to me that at that point,

[00:23:35] Speaker 00:
that they haven't advantaged the system in some way, or they haven't affirmatively invoked the system.

[00:23:41] Speaker 00:
They'd like to un-invoke the system because their argument is that your client is violating the Oregon statute.

[00:23:50] Speaker 00:
So it seems to me that they would have standing.

[00:23:56] Speaker 00:
And I'm having trouble buying the idea, well, you signed up for acute care, so in for a dime and for a dollar and for $100,000 or whatever the case may be.

[00:24:04] Speaker 01:
Yeah, so it is clear, and these are in the documents that the district court took judicial notice of showing what boxes they checked, right, in the excerpts of record.

[00:24:15] Speaker 01:
And it's clear that they sought to provide acute care.

[00:24:17] Speaker 01:
And I would even add.

[00:24:18] Speaker 00:
Sure.

[00:24:18] Speaker 00:
And I just said that that's absolutely true.

[00:24:20] Speaker 01:
Right.

[00:24:22] Speaker 00:
But did they sign up to provide long-term care?

[00:24:26] Speaker 01:
So you so if if what we're referring to the boxes for secure residential treatment facilities under organ regulations hospitals.

[00:24:34] Speaker 01:
They can't check those boxes those are limited to 6 to 6 to 16 patients.

[00:24:39] Speaker 01:
So they they they applied for the care that they could write and then.

[00:24:44] Speaker 01:
I think the key thing for Article 3, and look, it's either good enough or it's not, it's what the district court thought, is that they signed up for that acute care service level knowing full well that the door out was not a meaningful door out given the strain on the system.

[00:24:59] Speaker 01:
And so the question really is for Article 3, is that knowledge when you re-up enough?

[00:25:05] Speaker 03:
I understand your argument, but how do you deal with—and there's several Supreme Court cases along this line.

[00:25:11] Speaker 03:
There's the Medgar Evers case.

[00:25:12] Speaker 03:
There's the Havens Realty case.

[00:25:14] Speaker 03:
There's the more recent Cruz case.

[00:25:16] Speaker 03:
In all of those circumstances, the plaintiff is coming into something that he knows is going to be a problem.

[00:25:22] Speaker 03:
He does so voluntarily, and then he objects to it.

[00:25:25] Speaker 03:
How do you distinguish those cases?

[00:25:28] Speaker 01:
Right, and I will acknowledge the tension in the case law, right?

[00:25:31] Speaker 01:
Certainly, I'm not going to hide from that.

[00:25:33] Speaker 01:
Yeah, yeah, sure.

[00:25:34] Speaker 01:
I think the way I would distinguish it was articulated by the 10th Circuit in Fish v. Schwab and Fish v. Kobach, where the court said, look, there's a difference, there's a meaningful difference between cases in which you're challenging an unlawful regime by statute and regulation, right?

[00:25:52] Speaker 01:
let's say like the cruise case there is an allegedly unlawful federal enactment and really the only way you can challenge that is to disobey it right so that's one category of cases

[00:26:02] Speaker 01:
What the Tenth Circuit said is that that's different from something that is more akin to a freely negotiated contractual arrangement.

[00:26:12] Speaker 01:
Now, I will admit, this is not purely a contractual arrangement.

[00:26:15] Speaker 01:
But the argument that the district court seemed to find convincing is that when you years ago applied for certification to provide care, and for years and years and years, as alleged in the complaint,

[00:26:29] Speaker 01:
You are not just providing that care.

[00:26:32] Speaker 01:
You're providing more than that.

[00:26:34] Speaker 01:
And you keep re-upping every two years.

[00:26:36] Speaker 01:
That starts to look like a voluntary business arrangement that in the hearing, and I would direct you to pages, really the key pages are pages 98 to 101 of the excerpts.

[00:26:48] Speaker 01:
This is in the second volume.

[00:26:50] Speaker 01:
It's the portion of the hearing that the district court relied on, for better or worse, for its Article III conclusion on standing, where counsel said,

[00:26:58] Speaker 01:
that currently the way it generally works is if you're not a certified hospital, you can transfer outpatients to a certified hospital.

[00:27:06] Speaker 01:
That is how it works.

[00:27:07] Speaker 01:
And that they are choosing to certify and to take on the bitter with the sweet because there is an advantage to providing acute care.

[00:27:14] Speaker 03:
And so... And in the contract that they enter into with the state, they agree to take for acute care, and then they're stuck with obligations because of their status as a hospital, but not because of the contract.

[00:27:30] Speaker 03:
Am I understanding that correctly?

[00:27:32] Speaker 01:
I would say it's reality, right?

[00:27:34] Speaker 01:
Yeah.

[00:27:34] Speaker 01:
That is how the system is working, and they know that.

[00:27:38] Speaker 01:
There are certain federal laws, as you're referencing, Your Honor,

[00:27:40] Speaker 01:
state laws that obligate them to continue in care for emergency room care, for example.

[00:27:46] Speaker 01:
But I think the broader argument is that they, I heard opposing counsel say that this was surprising.

[00:27:53] Speaker 01:
If you look at the complaint and you look at the documents that are judicially noticed and you read the transcript of the hearing below, this was not a surprise.

[00:28:00] Speaker 01:
And that's either good enough or not good enough for Article III standing.

[00:28:03] Speaker 01:
We would say they don't have Article III standing for that.

[00:28:08] Speaker 03:
And you've not yet addressed in this lawsuit the underlying cause of action under the anti-trust, excuse me, undertakings or under due process.

[00:28:18] Speaker 03:
That we are not at that stage, correct?

[00:28:21] Speaker 01:
Well, so below, there was a 12b1 and 12b6 motion together.

[00:28:28] Speaker 01:
The parties briefed both the jurisdictional issue, but also the... Correct.

[00:28:33] Speaker 01:
And there is even, you can see in the transcript, the district court asked some questions about the merits, or at least on a 12b6 posture.

[00:28:41] Speaker 01:
The district court did not get to that.

[00:28:43] Speaker 01:
It just concluded it didn't have standing.

[00:28:45] Speaker 01:
And in fairness, if you read the transcript, the way it reads to me is that,

[00:28:51] Speaker 01:
part of what was unsettling about that discussion is I don't know going into that hearing if the parties were aware that that that the judge the district court judge really was interested in standing and so that's where you get some of the inconsistencies as to who can quit or not at various stages of offering care.

[00:29:07] Speaker 01:
And I just want to be clear to the court.

[00:29:09] Speaker 01:
I think the key thing to think about here is not whether you can release somebody who's civilly committed because I don't think you can.

[00:29:15] Speaker 01:
I think the question is when a hospital goes in to an arrangement and re-ups time and time again with full knowledge of what that arrangement is.

[00:29:24] Speaker 01:
Is that voluntary?

[00:29:25] Speaker 01:
That's the question.

[00:29:26] Speaker 01:
And to be clear, look, we're glad that they care for these patients.

[00:29:31] Speaker 01:
We pay them.

[00:29:31] Speaker 01:
We would pay them more.

[00:29:33] Speaker 01:
But for Article 3, I think the question really is, is it voluntary?

[00:29:36] Speaker 01:
Let me be positive.

[00:29:37] Speaker 03:
You would pay them more under what circumstances?

[00:29:39] Speaker 03:
You would pay them more.

[00:29:40] Speaker 03:
Tell me more.

[00:29:42] Speaker 01:
Yeah, and I don't know the details of this.

[00:29:43] Speaker 01:
I just know that the attitude—you can see it said in the hearing below.

[00:29:47] Speaker 01:
I mean, that's what counsel for OHA said below, is that

[00:29:50] Speaker 01:
It's not like we have animus to these hospitals.

[00:29:53] Speaker 01:
We understand the strain that this puts them under.

[00:29:55] Speaker 01:
But at some point, it's kind of the Casablanca shock-defying gambling scenario where they knew about this for years.

[00:30:03] Speaker 01:
And so to seek redress for it seems a little disingenuous.

[00:30:06] Speaker 00:
I want to have you explain a sentence in the judge's order.

[00:30:12] Speaker 00:
It says, Council for Health Systems confirmed that were health systems to decide not to seek certification, they would no longer be required to keep civilly committed patients for long-term stays.

[00:30:27] Speaker 01:
Yeah, so here is how I would explain that.

[00:30:31] Speaker 01:
And I'm not sure I can't put myself in the district court's no no I'm just trying to understand the fact right here Here is my understanding of the facts is there was that moment during the hearing?

[00:30:41] Speaker 01:
Where counsel for the hospital said and this is in the middle of page 98 of the excerpts Said look the way this generally works is if you're not certified You transfer out the patient You know if the patients transfer to a certified hospital right when they come into the ER or when they come in the door

[00:31:01] Speaker 01:
And then on the next page or two, counsel says, look, we choose to be certified because there are advantages, business advantages, of providing acute care.

[00:31:12] Speaker 01:
As to what that sentence means in the district court's opinion.

[00:31:14] Speaker 00:
Well, let's say somebody comes in, like, for a 72-hour hold or going to have a hearing.

[00:31:18] Speaker 00:
They don't seem to be mentally capable of being released, but they're in this

[00:31:25] Speaker 00:
They come in usually through the emergency room in those situations.

[00:31:29] Speaker 00:
So they're in the emergency room.

[00:31:30] Speaker 00:
They've got to put them in a bed.

[00:31:31] Speaker 00:
They aren't going to be released.

[00:31:34] Speaker 00:
But they're in a place where there's no certification.

[00:31:37] Speaker 00:
Where do they go?

[00:31:39] Speaker 00:
Do they just stay at that facility?

[00:31:42] Speaker 00:
Because there's no long-term care.

[00:31:44] Speaker 01:
So at the initial phase, you're talking about Judge when they arrive at an uncertified hospital.

[00:31:51] Speaker 01:
My understanding is that when that is currently

[00:31:55] Speaker 01:
The way that is handled is they are transferred out.

[00:31:59] Speaker 01:
Oregon law is clear that you require certification to treat civilly committed patients.

[00:32:06] Speaker 01:
And so they are transferred to a facility currently that can provide that service.

[00:32:12] Speaker 01:
And that's my understanding is that.

[00:32:14] Speaker 00:
And how many facilities beyond the facilities operated by this organization are certified to provide that care?

[00:32:23] Speaker 01:
So I don't know offhand.

[00:32:24] Speaker 01:
I know what they allege in the proposed second amended complaint that they have 57% of the acute psychiatric beds statewide.

[00:32:33] Speaker 01:
That's the only fact that I think we have in the record.

[00:32:36] Speaker 01:
But I don't know the answer to your specific question.

[00:32:38] Speaker 01:
I do want to just, I don't want to steer the court away from this if we want to talk more about it, but I do want to address third-party standing.

[00:32:44] Speaker 00:
But we do too, so let's do that.

[00:32:45] Speaker 00:
Great, let's do that.

[00:32:46] Speaker 00:
We're not going to get there if we don't get here, but we do want to hear from you.

[00:32:48] Speaker 01:
And like all the counsel before me, I'm trying to, Judge Owens, take you up on your challenge to leave time on the clock, and I'm failing, and so I will continue to try to do that.

[00:32:56] Speaker 01:
But just briefly addressing the third-party standing issue, I think what is probably the best place for this court to look in the record is in the supplemental excerpts of record,

[00:33:06] Speaker 01:
There is an amicus brief that was filed below that the district court found quite persuasive from Disability Rights Oregon.

[00:33:12] Speaker 01:
Now, this is the organization that is federally designated as the protection and advocacy system for those with disability in Oregon, including those with mental illness.

[00:33:21] Speaker 01:
And you can just, I'm not going to repeat them ad nauseam here, but you can see the reasons given by Disability Rights Oregon, why it's concerned about the potential for a divergence and incentives here.

[00:33:32] Speaker 01:
And while I greatly appreciate

[00:33:35] Speaker 01:
The spirit of opposing counsel's comments today about their mission, the hospital's mission, and while we are grateful for the provision of service by hospitals, if you look at the complaint, you can see that tension.

[00:33:47] Speaker 01:
So, looking at the relief in the complaint that's pled in the complaint, this is on pages 254, 255 of the excerpts of record,

[00:33:56] Speaker 01:
There is both a request for a declaratory injunctive relief to have OHA discontinue forcing them to provide indefinite care, but then there's also a request for relief on behalf of these patients for them to receive the best available treatment in a suitable facility.

[00:34:15] Speaker 01:
When you overlay, and I would cite this as passive in the complaint, the number of times where

[00:34:22] Speaker 01:
They point out, as they did today, that there just are not enough beds.

[00:34:25] Speaker 01:
You're left with a divergence in that either a result here or maybe even a negotiated settlement, by prioritizing the let's get them out the door, you could lead to suboptimal placements.

[00:34:38] Speaker 01:
And that is just a fundamental tension here in these claims.

[00:34:42] Speaker 01:
The case law is quite clear that third party standing is not the norm.

[00:34:46] Speaker 01:
And here, hospitals that have a financial incentive to transition patients out are not going to be, as DRO noted below, the best advocates for the patient's interests.

[00:34:59] Speaker 01:
And there is that inherent tension here that the district court based its third party standing ruling on.

[00:35:06] Speaker 01:
The other thing I'll just point out briefly is paragraph 43 of the complaint, this is on page 239 of the excerpts, notes that these hospitals are losing, asserts that these hospitals are losing tens of millions of dollars each year because of this arrangement.

[00:35:24] Speaker 01:
They are asking for just compensation, and that is a not insignificant amount of compensation

[00:35:30] Speaker 01:
funds that if reallocated through just compensation could lead, cause suboptimal placements because of the systemic effect that that would have.

[00:35:41] Speaker 01:
And look, I'm not pointing out anything that isn't noted in the DRO briefing below, but I just would urge this court to think carefully about that, given that the interests of patients are important here.

[00:35:51] Speaker 00:
So the upshot with no standing is that inadequate care continues apace, right?

[00:35:59] Speaker 01:
No, that's not true.

[00:36:01] Speaker 01:
You know, both in the Mink case, there are discussions in the Mink case, and more generally, to try to improve this care, there is, and look, this is not in the record, which is why I'm not going there, except to answer your question.

[00:36:16] Speaker 01:
You know, OHA now has coordinators that meet regularly with the hospitals to try to improve transfers, to listen to concerns around specific patients,

[00:36:24] Speaker 01:
So it's not, I just want to disabuse the notion that it's lawsuit or bust.

[00:36:29] Speaker 01:
That is not true.

[00:36:31] Speaker 01:
I understand I can't point to places in the record that show that because we're on a 12-B motion, but I just don't want this court to be left with the impression that this lawsuit is the only way.

[00:36:41] Speaker 03:
Well, let me understand, again, the practicalities.

[00:36:43] Speaker 03:
It appears that the hospital capacity or the treatment capacity for long term just doesn't exist.

[00:36:51] Speaker 03:
Is that right?

[00:36:51] Speaker 03:
I mean, that's the basic problem.

[00:36:53] Speaker 01:
So yeah, I mean, I think that it's alleged in the complaint.

[00:36:57] Speaker 01:
And while we could quibble with the allegations, I think it is no secret that there is inadequate beds in the state of Oregon, generally, including long term care.

[00:37:09] Speaker 03:
And is Oregon?

[00:37:10] Speaker 03:
Required by Oregon statute to provide such beds and Oregon just isn't doing it.

[00:37:15] Speaker 01:
So I I will admit judge I don't offhand know I Just don't know enough about it.

[00:37:20] Speaker 01:
It's a very elaborate legal, you know statutory regime.

[00:37:23] Speaker 01:
I just don't know offhand here today

[00:37:27] Speaker 03:
That puzzles me.

[00:37:29] Speaker 03:
So maybe Oregon's required to provide the beds and maybe not?

[00:37:33] Speaker 01:
That's your answer?

[00:37:34] Speaker 01:
No, no, no.

[00:37:35] Speaker 01:
I'm sorry about that.

[00:37:36] Speaker 01:
So here's where I would point for that, if I were given the record and the laws, I understand it.

[00:37:41] Speaker 01:
I mean, Oregon has an obligation when OHA takes

[00:37:45] Speaker 01:
civilly committed persons into custody upon their commitment to make an appropriate placement and to, you know, in Chapter 426 of the Oregon Revised Statutes, there are obligations on the Oregon Health Authority to make adequate placements, to calibrate those placements with the level of care that's appropriate,

[00:38:09] Speaker 01:
It also says that the placement decision is a final decision.

[00:38:13] Speaker 01:
There is, going back to the third party issue, there is an ability by civilly committed persons to challenge those placements.

[00:38:19] Speaker 01:
That is a procedural safeguard in the statutes, but I don't wanna leave you with an unsatisfactory answer.

[00:38:26] Speaker 01:
That's what's coming to mind in terms of how that works and the obligation of OHA to place people appropriately in facilities that are calibrated with the appropriate level of care.

[00:38:35] Speaker 03:
Well, and the obligation to place, does that include the obligation to provide, meaning does Oregon have an obligation to provide suitable facilities?

[00:38:45] Speaker 03:
As I understand it, Oregon law does have that obligation, but you can tell me I'm wrong.

[00:38:49] Speaker 01:
So yeah, I just don't have that before me.

[00:38:52] Speaker 01:
So I don't want to get that wrong.

[00:38:54] Speaker 03:
OK, help me some more with the third party standing in terms of, you predict that if we were to allow third party standing here, some suboptimal thing is going to happen.

[00:39:07] Speaker 03:
What is that suboptimal thing and why is it going to happen, in your view?

[00:39:11] Speaker 01:
Yeah, so I think the hospitals, their complaint is replete with allegations showing that

[00:39:18] Speaker 01:
you know, this is a, it's a financial disincentive for them to keep patients into long-term care beyond what they would say the period of acute care is.

[00:39:27] Speaker 01:
Also, they say repeatedly that there are other patients they have, non-civilly committed patients that need the beds, and so there's a tension there among their, sorry, among their categories of patients where they might not have the undivided loyalties to these patients.

[00:39:43] Speaker 01:
And if the goal is to transfer them out, we are in a system where there just are not adequate beds.

[00:39:50] Speaker 01:
And DRO notes this in its briefing.

[00:39:53] Speaker 01:
There's no guarantee that they'll go to a place that is as good as their current placement, is what I'm trying to say.

[00:39:59] Speaker 01:
And DRO made that argument in its amicus brief below.

[00:40:02] Speaker 03:
And is the hospital seeking permission to send them to some suboptimal place?

[00:40:06] Speaker 03:
I mean, is that what they're requesting in the lawsuit?

[00:40:08] Speaker 01:
No, that's not what the relief is in the lawsuit, no.

[00:40:11] Speaker 03:
So what makes you think that's going to be the result of the lawsuit?

[00:40:14] Speaker 01:
Because I think the practical reality is, as DRO noted in its briefing below, that there is just a tension between trying to get them out as soon as you can.

[00:40:24] Speaker 03:
No, I understand that.

[00:40:26] Speaker 03:
But that exists no matter how we rule.

[00:40:29] Speaker 03:
I mean, that's been in existence for a very long time.

[00:40:32] Speaker 03:
And they apparently, they're keeping them.

[00:40:34] Speaker 03:
So how would an order from our court that says Oregon has an obligation

[00:40:40] Speaker 03:
to provide suitable placement for these people, how would that change the reality?

[00:40:44] Speaker 03:
How would that then allow them to send them to some, some optimal place where they're not now sending them?

[00:40:50] Speaker 03:
How would that change?

[00:40:51] Speaker 01:
So I, I mean, I think, I think the point is, and you're right, there's an obligation to place them suitably.

[00:40:58] Speaker 01:
And thank you.

[00:40:59] Speaker 01:
Cause that, that really, I think addresses your earlier question that is in the statutes.

[00:41:02] Speaker 01:
I just think if you have a situation where these hospitals are rendering care because they need to and because the strain on the system you know as they say in their complaint there just are not beds elsewhere to send them to and I think that that means if you're trying to transition them out.

[00:41:18] Speaker 01:
You know, there's an assumption that there are other beds and that's just not the case.

[00:41:22] Speaker 03:
But I understand the purpose of the underlying lawsuit is somehow to force Oregon to start spending money to provide appropriate placement that Oregon has so far been unwilling to spend.

[00:41:34] Speaker 03:
I mean, that seems to me the thrust of the lawsuit.

[00:41:37] Speaker 01:
So, I mean, and they could speak to that, but my understanding is that, although if you look at the relief, I just want to note it's not just that, right?

[00:41:44] Speaker 01:
Like there is a financial aspect of this for the hospitals that may converge, but may diverge.

[00:41:49] Speaker 01:
So I just want to acknowledge that.

[00:41:50] Speaker 01:
But yes, I think that that is

[00:41:52] Speaker 03:
Well, and I'm trying to understand the may converge, because the may converge depending on how likely there is a divergence.

[00:41:59] Speaker 03:
I mean, that's the key to the third party standing analysis.

[00:42:02] Speaker 03:
Right.

[00:42:02] Speaker 03:
And I'm having trouble still understanding the nature of the divergence, because I think I just heard you say that if we allow them to go forward as third party representatives,

[00:42:15] Speaker 03:
they're nonetheless going to be subject to the same obligations they have now in terms of not placing them to some suboptimal place.

[00:42:22] Speaker 03:
But you told me they're going to do that, and I don't quite understand yet.

[00:42:27] Speaker 01:
Well, so I and this is your honor, this is where maybe the the transcript below is informative because there's a there was a colloquy below where, for example, the district court judge said, well, what if this, you know, what if this case went into settlement discussions at some point?

[00:42:41] Speaker 01:
Like, isn't there a tension between the hospitals and their interests, financial or otherwise?

[00:42:47] Speaker 01:
and the interests of these patients in receiving a placement that is suitable regardless of the financial cost.

[00:42:59] Speaker 01:
I mean, and I understand, look, part of the challenge here is we're trying to think ahead hypothetically to what could happen, but I still think that exchange below is very informative because the path of litigation could lead to a moment, and frankly likely would lead to a moment where the hospital's interests would diverge from patients that need the best care available, regardless of cost or other considerations, regardless of whether patients may need that bed in the hospital.

[00:43:25] Speaker 01:
At some point, and this is really the point that

[00:43:27] Speaker 01:
DRO was making below, they're just different interests.

[00:43:35] Speaker 01:
I see I'm way over my time, and I apologize for that.

[00:43:38] Speaker 00:
No, no, no.

[00:43:39] Speaker 00:
We put you there.

[00:43:41] Speaker 00:
And thank you.

[00:43:42] Speaker 01:
You've given me my workout.

[00:43:43] Speaker 01:
And unless there's any other questions, we would urge you to affirm.

[00:43:46] Speaker 02:
Thank you, counsel.

[00:43:52] Speaker 00:
Thank you.

[00:43:52] Speaker 00:
Counsel, I have a question.

[00:43:55] Speaker 00:
If the court were to determine that

[00:43:57] Speaker 00:
The hospital has standing, but that there's no third party standing.

[00:44:02] Speaker 00:
What would be the difference in the outcome of the relief?

[00:44:10] Speaker 04:
That's funny, I never thought about it quite that way, because I've assumed that there was standing both ways.

[00:44:16] Speaker 04:
It seemed pretty obvious to me that there was, but that's just the way I was thinking about it.

[00:44:22] Speaker 04:
I don't know if there'd be any difference in the outcome, to tell you the truth, Judge McEwen.

[00:44:26] Speaker 04:
We're advocating for a single thing.

[00:44:29] Speaker 04:
We're advocating for OHA to get on its horse and do something.

[00:44:33] Speaker 04:
And if it does, the people that we're caring for in the interim will finally, or their successors, will finally have some place that they can be placed where they have a chance at rehabilitation and the ability to return to the civil society.

[00:44:48] Speaker 02:
Let me jump in there because the complaint has certain counts as to the hospital and certain complaints as to the patients.

[00:44:54] Speaker 02:
I take it that, you're saying from a practical perspective, there would be no difference.

[00:44:58] Speaker 02:
I take it that in the complaint, there would be certain counts that would be dropped.

[00:45:02] Speaker 04:
Yes, I beg your pardon.

[00:45:03] Speaker 04:
That's precisely what I'm saying, because I've looked at the two sides of it, and I've thought these guys aren't just twins.

[00:45:11] Speaker 04:
They're the same thing.

[00:45:13] Speaker 03:
No, that doesn't make any sense to me, because the first party claims the hospital is making.

[00:45:20] Speaker 03:
One of them is a due process claim.

[00:45:22] Speaker 04:
Right.

[00:45:22] Speaker 03:
One of them is a federal takings claim, and the other one is a state takings claim.

[00:45:30] Speaker 03:
The remedy for a takings claim is pay me money.

[00:45:33] Speaker 03:
Pay me money.

[00:45:34] Speaker 03:
The remedy for a takings claim is not provide suitable placement for those patients.

[00:45:39] Speaker 04:
Judge Flesher, pardon me.

[00:45:40] Speaker 04:
I didn't mean to interrupt.

[00:45:43] Speaker 04:
We have filed an amenity complaint, and the judge has never really indicated what he was going to do with it one way or the other.

[00:45:48] Speaker 04:
But since his basis for dismissing the case and not allowing another complaint was, he was saying that we'd volunteered for this problem.

[00:45:57] Speaker 04:
I assume that I'm entitled to at least bring this to your attention.

[00:46:00] Speaker 04:
We've abandoned any suggestion we want any money.

[00:46:03] Speaker 04:
That's not what we're here for.

[00:46:05] Speaker 04:
We're searching for prospective relief of injunctive form that will permit our patients to get the treatment that they need.

[00:46:13] Speaker 03:
So you're representing to me that you've abandoned any request for a judicially ordered monetary compensation?

[00:46:20] Speaker 03:
Yes, sir.

[00:46:20] Speaker 04:
That is my representation.

[00:46:22] Speaker 04:
We ain't doing that.

[00:46:24] Speaker 04:
And I think, as we've thought about it, we've decided that that was, that invited the kind of colloquy that's just gone on here.

[00:46:35] Speaker 04:
And we didn't intend to do that.

[00:46:37] Speaker 02:
And just so we're clear, because in my materials here, I have the first amendment complaint, I have the second amendment complaint.

[00:46:42] Speaker 02:
You're saying there was a proposed third amendment complaint?

[00:46:44] Speaker 04:
No.

[00:46:46] Speaker 04:
What happened was the judge wouldn't let us file an amended complaint because he said we'd had the opportunity to file an amended complaint and we had, we'd added a party.

[00:46:56] Speaker 04:
And somehow the judge wasn't prepared to have us file a complaint that spilled out the things that Judge Fletcher's been talking about in part.

[00:47:03] Speaker 04:
And so we explained in detail why it is certain things are true and certain things are not.

[00:47:09] Speaker 04:
And the judge, frankly, I'm not entirely clear as to how the judge handled that or what he did with it or whether he even thought about it.

[00:47:17] Speaker 04:
It just disappears into a hole.

[00:47:20] Speaker 02:
Okay, so if I'm looking at the Second Amendment complaint, which does have takings claims in it, you're saying that there was a plan to file another complaint that would not have the takings claims or that you're just dropping the takings claim?

[00:47:31] Speaker 04:
Well, if the Second Amendment complaint you're looking at is the one that added the party, there's no substantive change between that and the first.

[00:47:38] Speaker 04:
But we filed a complaint, which we labeled Second Amendment complaint, which spelled out in a good deal more detail what was going on.

[00:47:47] Speaker 04:
and does not seek monetary relief.

[00:47:51] Speaker 00:
I mean, the complaint I'm looking at, which is second amended, said, with respect to the takings, plaintiffs do not seek compensatory damages for OHA's unlawful takings.

[00:48:02] Speaker 00:
Is that correct?

[00:48:03] Speaker 04:
Yeah.

[00:48:05] Speaker 04:
We're not in that game.

[00:48:06] Speaker 03:
That's the one you have sought to file, but it's not yet filed.

[00:48:09] Speaker 02:
That's the one we sought to file.

[00:48:10] Speaker 00:
That last paragraph, OK, paragraph C. That's in the complaint.

[00:48:13] Speaker 00:
That's in the current second amended complaint.

[00:48:15] Speaker 04:
OK, well, the thing I couldn't figure out was the numbers were throwing me.

[00:48:20] Speaker 04:
You wouldn't think one and two would throw me, but that did throw me just a little bit.

[00:48:24] Speaker 04:
But in any event, I knew that we'd made a declaration with respect to that.

[00:48:28] Speaker 03:
So it's a takings claim, but the remedy for which is quit doing the taking rather than compensate me for past taking.

[00:48:37] Speaker 04:
Yes.

[00:48:38] Speaker 04:
Cut that out and not pay us for it.

[00:48:42] Speaker 04:
I have a few seconds left.

[00:48:45] Speaker 04:
My friend, Mr. Bueller, appears to argue that somehow we're stopped from bringing this action because we've put up with this nonsense for all these years, which is a sort of interesting concept when it comes to constitutional questions.

[00:49:01] Speaker 04:
We have never

[00:49:02] Speaker 04:
signed on to a certificate which promises that we will do other than provide acute care and direct answer to Judge Fletcher's question.

[00:49:11] Speaker 04:
You drew the line exactly where the line is.

[00:49:13] Speaker 04:
We said we would take care of people suffering from acute care and we're staffed and prepared to do that.

[00:49:19] Speaker 04:
That's the certification we go through every couple of years just to keep track of what hospitals are supposed to be available to do certain things.

[00:49:26] Speaker 04:
But it's got nothing to do, nothing to do with promising that, oh yeah, and by the way, once we've got these people stabilized,

[00:49:32] Speaker 04:
We'll hold on to them for half a year because OHA won't put them somewhere.

[00:49:36] Speaker 00:
I think what he's saying is every time you signed the certification, you knew that you were going to be.

[00:49:43] Speaker 00:
housing these people for longer, so it's like kind of beating yourself up, but keeping signing the certification.

[00:49:49] Speaker 00:
I think that's what he's saying.

[00:49:50] Speaker 04:
All right.

[00:49:51] Speaker 04:
That may be, too.

[00:49:52] Speaker 04:
If it was an exercise in self-flagellation, we've quit.

[00:49:58] Speaker 03:
This is a variation on the same question, and maybe I'm not going to get a further elaboration.

[00:50:03] Speaker 03:
Why, if it's well known to you that while you undertake contractually the obligation to provide the acute care as a practical de facto matter, you're undertaking an obligation to keep these people for a very long time and you're losing money at it, why are you doing this?

[00:50:22] Speaker 03:
that apparently some hospitals in Oregon don't sign up.

[00:50:25] Speaker 03:
Why are your clients signing up for this if it's a money loser?

[00:50:29] Speaker 04:
We've been doing it because when patients present to us in need of emergency services and acute care, we have to take them.

[00:50:38] Speaker 04:
EMTALA requires us to take them and treat them.

[00:50:41] Speaker 04:
We can't just say, no, we're not going to deal with you guys.

[00:50:44] Speaker 03:
So what about the other hospitals in Oregon that are not signing up for this program?

[00:50:49] Speaker 03:
Why don't they have the same obligation that you people do?

[00:50:51] Speaker 04:
I think what happens with them is EMTALA requires them to provide at least emergency treatment and to try to find a hospital that's certified to provide the acute care and get them transferred to that.

[00:51:01] Speaker 04:
But that has to do with acute care.

[00:51:03] Speaker 04:
That has to do with just stabilizing them.

[00:51:06] Speaker 04:
It is not a matter

[00:51:07] Speaker 03:
But those but yeah, but the reason you gave me so why your clients sign up for this program It would seem to me we will apply to every hospital in Oregon, but they're but that's not true.

[00:51:17] Speaker 04:
You know Judge Fletcher, I don't know the answer to how many have not And I apologize for not knowing but I don't I'm assuming that there are some I'm representing the folks who Regularly sign on because that's the kind of staffing they do that's what their hospitals are set up for okay?

[00:51:38] Speaker 02:
Thank you very much, counsel.

[00:51:41] Speaker 02:
We're way over.

[00:51:42] Speaker 04:
I beg your pardon.

[00:51:44] Speaker 04:
Yes, you are, and I appreciate the courtesy.

[00:51:47] Speaker 04:
Thanks very much.

[00:51:48] Speaker 02:
Very well.

[00:51:48] Speaker 02:
Thank you both for outstanding advocacy today and excellent briefing.

[00:51:53] Speaker 02:
We really appreciate it and a very interesting and challenging case.

[00:51:57] Speaker 02:
This matter is submitted, and we are done for the day.