are both eligible for medicaid and entitle to medicare benefits on their part and here in the district court correctly insisting the secretary its interpretation of the dish  statute that involves a calculation a formula that involves two factions the medicaid fraction and the medicare s s i a fraction and here the medicaid fraction that statutory language on its bas does not include patients who are entitle to medicare part and once the district court correctly sustained that interpretation that should have been the end of the matter but the district court nonetheless granted concluded that the notices of reopening sent by the intermediary were inadequate this whole thing was in error because the applicable regulation had only two requirements regulation that has the force of law has to do with an imperious requirements both of which were met here and it's therefore an error to invalidate reopening that especially where argument district court and the plainest did not respond on by explaining by explaining what they would have done differently with a different notice and the district court it erred by failing to reach that argument and the circumstances really ninety seven down to and that indeed is what the intermediary had done that would have been found that really added the days that were supposed to be added based on that ruling rules that the secretary had previously excluded from the faction and after a series of adverse court of appeals rulings the secretary in this room ninety seven dash two decided to include accord with this and bring it and there by the intermediary is for the room the administrative process also it is not making arguments anymore about the days that are competent bringing it is so  to interpret what happened what the district court did as a remained in order to apply the principles that you say shit be applied to get mr stick i think that's the job in this case is is once they've identified a legal calculate the impact of the court's ruling they would if the decision below is up held with respect to that twenty four of the twenty high cost records they would add back the days that they took out that's what it takes my our position is that the statute is directed at the court it says the core of the order interest to the prevailing party in this case and the district court to do that we think that was a mistake a final determination it has a meeting it's a final determination and there are obsessions to that process and those exceptions are but it's time limited i guess to describe the process  and this going on for a period of almost seven years so this is not a situation in which the hospitals were trying to slip something by the medicare program this was something that was carefully considered  the harm that they face a lot of these cost reporting periods relate back to that one nine hundred ninety s thank you ninety one ninety ninety five ninety seven ninety eight we're now standing here in where we were standing in two thousand sixty thousand seventy thousand a ten to fifteen years later and they're taking back money that the hospitals were told by the medicare program that they were entitled to they made decisions based on budgeting decision at the time they were told about whether that was clear the secretary as were destroying their british she's changed her position on these various components of the dish and what days can be included in what base camp included it's helpful but  an opportunity that says that a provider that is without merit with respect to that overpayment does not have to repay it that is for them to already know one of the secretaries manuals called the medicare interim be your e mail where they define the concept of being rich have particular ospital its representative sat down and discussed the matter with the intermediary there were a lot of cases going on in the ninety's addressing various aspects of the dish payment and the hospital wanted to be sure that the intermediary understood what was going on in this case and they did and they subsequently issued written instructions that match exactly what the providers said that they were doing and then they gave those instructions to the hospitals that were eligible for dish  period of seven years they bowed to ross perot's that they should be claiming these days and then they changed their mind so the secretary response signer stand it is that thirty nine five g g which i think is the vets their argument made i think with how they describe it it doesn't apply to aggregate over payments such as a dish adjustment payment we disagree about whether this is an aggregate overpayment adjustment but i would also say that with respect day should not have been included there are two reasons why you can essentially allow the hospitals to keep as alleged overpayment one is because they were without faith and the second is there was a program membrane them that they issued but it essentially the message knowledge is that our our guidance with respect to the medicaid fraction of the dish adjustment has not been clear and therefore in that case it's our under there's been reported that there are hundreds of millions of dollars if not billions of dollars that the hospitals who are vowed to keep nationwide so there is clear evidence in the record that they have forgiven bush overpayments just like they're saying now that we have  respect to the this is just a general who will forgive some tissue of repayments but not others it's interesting that the secretary has said it in a briefs that this particular law did not underlie the whole promise agreement but they never have said what is the authority and then when they describe this word harmless agreement to try to differentiate or hospitals from the payments to providers of services or other prisoners regarded as payment to individuals their repeated references in all of the subsections to whom i do or services furnished any individual things isn't the hospital see here before you get to as point so how does the recruitment work with respect to individuals and in a typical case not forgiveness but an actual recoup  individual or and the secretary then has to make i think makes a determination that it will be recouped but this statute provides for waivers of such the some there is some issue like that it is not a dish calculation in contrast is where you have this throughout that medicare passion and medicaid fraction and you take a certain percentage and it's not tied to