have a plea for what they say in other words they're trying to take our money and so it stands to reason they should be able to explain why they've done it that's on the thirty that's making the initial allegation and trying to take six million three hundred thousand i believe they have to explain the basis for that the man in here i don't think they d appeals board or and what's the standard of review for their alternate determination what do we have to conclude to rule in favor of your point i think you have to conclude your honor that they did not supply a reasonable basis for their action or a reasonable explanation for their act and i think we will be arguing about whether or not what they did incomplete had to be considered as non medicaid time there is absolutely nothing in the two thousand and three guide which they told us that that even address inaccurate response to we were never told either in their guide or otherwise that was their interpretation we learned about their interpretation only in two thousand and eleven and only because asked c m s in two thousand and eleven how do we treat that does their god didn't say anything about it so that is a completely unannounced interpretation that affects because we have no record to establish that it was covered by medicaid or arizona's medicaid alternative that yes we're talking about  returned the extent they're incomplete or inaccurate we don't know know what the accurate and complete data would have been all we did was exclude the bad data go with what we knew we could the st paragraph says that to ensure an adequate number of responses many school oversample sometimes substitute their responses for those that were not received another would you have the weather they cut in our favor with the governments because the data to know it was not accurate wasn't complete or wasn't even available to the federal government is making this presumption that if you don't complex than saying we won't reimburse what we can and are satisfied to ourselves was medicaid appropriate when it comes to brass tacks right i believe that's correct methodology that account for these these situations but in in the absence of it these approved methodology such as an over sampling methodology or factor in a non response rate which is discussed in that compliant system and so it took all of those excluded sample items put it back into the sample recalculated the statewide percentages and the state federal reimbursement and by following the  incorrect or contrary to law and then obviously the data is sitting you know as the final agency decision maker in that proceeding on up to novo review of the record before it and then this court reviews there i know the data itself has there's certain regulations governing the dabs procedures that it might be incorporated in that itself there's also specific disallowance its non responses or incomplete responses from and sample pool in their entirety and treat them as not medicaid was not a reasonable interpretation why of the god language in the dobbs conclusion on that regard  approved the plan it was reliant on access as representation that the plan was drafted in conformance with the c m s guide that's an indication that c m s was relying on access to follow the c m s guide and the language in th informal e mail correspondence under these circumstances was not sufficient for access to assume that its plan was approved by their conditionally or otherwise that dab reviewed this e mail and concluded that it did nothing to indicate obtained approval to use its plan specifically the plan document itself as on the front page and on the header of each page the language draft pending c m s approval next to the april two thousand and eight letter from maximus to access indicated specifically that absent specific approval by c m s to use a different method access must treat non responses as non medicaid indicating that approval had not been given and then access his response to that letter in may of two thousand any agreement to modify its methodology demonstrated that they understood that c m s had not approve their methodology so in some the record evidence does not support access view that it had conditional approval to use its plan but rather supports the conclusion reached by the dab and the district court that it did not have such approval it's moreover it's beyond dispute that the c m s guy did require explicit approval applying you know arizona has the burden to show the amounts of its claims it can't show that for these two quarters and so to rely on miscellaneous quarters to come up with a proportionate share of work t reimbursement for some things that actually could not supply information indicating they were authentic medicaid coverage items correct right and and i was no you're telling me that because they took out of what they complained items which for non responsive incomplete or whatever and therefore they couldn't determine if they were covered they're still wrong ever i think we're confusing two different buckets of the disallowance your honor ok they way with regard to you know obviously there's there's there's one bucket at the disallowance that's based on the incomplete i'm over my time is so so i think i think your nd part of the confusion maybe applies to that bucket of disallowance versus the other bucket of disallowance i was discussing with judge who would say which is with regard to it cost me five million if your claims are accurate so we're disallowing the entirety amount of that amount so i think that's where we made and we may have gotten a little bit confused your honor and i happy to answer any further questions to clarify that if necessary has some wonderful mediators who are really good at sorting through this kind of thing there are people with at least two years for private practice experience and my experience over twenty five years on the court is they're very rare exceptions they're able to get parties to come to an agreement why not do that or do you know who is that above your pay grade i think the ultimate decision may be above my pay grade your honor and i do have to defer to that that guidance johnson better we would certainly be in favor of mediation as opposed to the existing result we should we needed them to tell us if we were we used our plan for four years precisely because they didn't say a thing after their initial informal can't prove a plan disapprove the request no justification in the us as failure to act no explanation of what c m s did not understand their states only receive federal reimbursement under medicaid as they follow the bed question here is what happens when the federal government makes up rules as it goes along or even ask that they haven't already done with one in a correct its actions need the government's new inter