morning your honor when it please the court i'm robert leventhal on behalf of the appellant's the hospital's question i think that the case that we have before you is really a very simple case both legally and factually we're not here trying to expand chevron deference or to deal with the intricacies of when it's applicable or when it's not what we're here for is a case in which c m s chose a standard that articulated the standard under which it was going to review the rates in question and it said that the standard was that the rates had to be sufficient to ensure that medicaid beneficiaries had at least as good access to care as the general dressing an argument that cost was something that had to be considered under the old orthopedic standard the court rejected that argument and and basically accepted c m s his argument that they're going to look at the results and not at the way it's  done they can use whatever standard they want as long as they ensure that the result is that a medicaid beneficiary has at least as good a attic access to care as a member of the general population and so that's what they basically found and we're not challenging that the services that issue in the pharmacy case are different than the service is that issue here and the evidence that c m s relied on and the pharmacy case was different than the evidence that c referenced in the record showing that the secretary considered the proposed would assure that medicare beneficiaries would have equal access to care and services as the general public there's no specific evidence showing that they did any independent analysis of that they have boilerplate in their letter saying we you know considered the correct factors in that sort of thing but the evidence in the administrative record regarding the actual evidence before them regarding access to care is all in two pages of the record and it's in volume seven of the excerpts of record and it's in pages or fifteen ninety seven through fifteen ninety eight and this is not something that we're just claiming and c m s does denying this is what c m s sites too as well as us and so this is what's in the record and so it needs to be done is the court needs to look at this two pages and see is there anything in there upon which a reasonable person could conclude that the medicaid beneficiaries have the same access to care as the general public and we believe in this case there's not and there's true reasons for that one reason is there's nothing there about the access that the general public has and so if you just have information about the access that beneficiaries of medicaid have you know what their access is the you can tell if it's lesser than the general public greater than the general public or the same as the general public treat emergency medical treatment ok that makes c m s is rewarding from this even worse and it makes the managed pharmacy care case even more distinguish of the emergency medical treatment and active labor act is a law that requires hospitals to treat any patient that comes to the hospital with an emergency medical condition and so because of that if someone shows up with absolutely no insurance or no way of paying if they show up at a hospital with an emergency room and they have an emergency medical condition the hospital is required to treat them even though it knows it won't get paid how should the secretary interpret that i mean obviously the hospital has no choice and if someone without resources goes to the hospital emergency ward and is treated are they for purposes of the analysis that you claim is required treated as if they are part of the general public is a special subcategory how is that one thing if they're not a medicaid beneficiary they're a member of the general public if they are then a kid beneficiary then the secretary needs to look at evidence as to whether the rates are adequate other than whether this person got treated because that person would have gotten treated even if there was no medicaid program and so therefore the fact that they came and got treatment doesn't indicate that the rates are adequate in los angeles county and the numbers there were many emergency wards shut now hospitals overall shut down because of the impact of  how if at all should that be factored into the secretary's analysis of equal access why would argue that the secretary should be even more careful here because the purpose of the medicaid act is to provide medical care for indigent people that qualify for medicaid at the expense of the state and federal government it's not to put hospitals out of business or to penalize providers and what you have here is a situation where because of an tala a hospital outpatient department an emergency room is the site of of last resort for people who don't have insurance or who have like medicaid which many people would argue doesn't actually provide enough reimbursement for doctors that they can get good access with doctors and there's actually evidence in the administrative record c m s his own admission that we cited saying that a lot of people do go to emergency rooms were covered by medicaid and that that could be evidence of an access problem and so basically if the rates overall are inadequate those people end up in the hospital emergency room and putting even greater burden on the hospitals and less the hospital rates for the emergency room are adequate and so they need to look at more and hear what they look at one of the main factors they look at is the percentage of emergency rooms or hospitals that accepted one or more medicaid patients well that doesn't mean anything because every hospital with an emergency room should be accepting one or more medica patient and so even if the rates were set it's zero you would still have all the hospitals with emergency rooms treating one or more medicaid patients likewise the other thing that they looked at was the number of hospital outpatient services per thousand beneficiaries over a three year period and found that that didn't change even though the rates were and even though the number of beneficiaries went up and again this is equally consistent with hospitals just treating patients that they the create under emtala who show up in the emergency room and so that evidence says nothing about whether the rates themselves are adequate and that's important because we don't want to be putting hospitals out of business we don't want to be causing i mean one thing they could do is instead of looking at my service question have you proposed to do you have a matrix that you recommend that would be acceptable to you i think they could compare the rates that medicaid pays with the rates that private insurance or that medicare pays and that would be a rational way if the rates were similar higher that would be a rational way of saying the access should be similar i think there are probably other rates ways that c m s could come up with doing this they might be able to hire an economist to do some sort of analysis but it's not really up to us and i don't think the law really allows us to tell c m s here is how you have to do the analysis so i just i just you know you've got brains passing in the night here  and to the degree you can communicate with one another and know what's acceptable it would be helpful i assume and i would think that best way would be for them to compare the medicaid rates with rates paid by other payers including medicare and make sure that the rates are within the same rang e that would be what i would be was being a reasonable way to do it the morning may please the court just samberg for the united states to destroy properly upheld the secretary's approval of the medicaid plan amendment the secretary's decision here expressly states her finding that the payments provided under the plan amendment were sufficient to meet the beneficiary access requirement at issue here and section thirty eight of the medicaid statute on the second where the record is the showing that the secretary considered whether the proposed as would assure medical beneficiaries that there would have equal access to care and services the general public find such an analysis the secretary relied on a few things your honor part of it is the access study that the state had repaired prepared  request which focused on two main things how many providers are participating in medicare and has that number changed as a result of the challenge rate cut and how if at all has utilized as utilization of medicare out on a per capita basis change as a result of a rate cut access that the general public enjoys the there are a number of inferences that can be drawn from the data that is discussed a fifty nine hundred fifty nine and the state's methodological papers talking about access analyses go through this in a little bit pro it doesn't answer the question is why my view so i'm probably by the fact that all you've got is relatively narrow reference to somebody else's study that i'm not sure exactly addresses what the statute talks about was there anything else that the secretary did any other kind of analysis that you can refers to yes i have a fair amount to say i think it's responsive to your question so first of all it's important keep in mind that this was a three year and out of process in which c m s repeatedly told the state no you haven't given me evidence i rely on at one point c m s said to the state this was during the reconsideration process here's some data that we would like to see that we would consider relevant and one of the things that i asked for was utilization trends over time and enough another thing it asked for was whether provider participation had changed let's just talk about utilization for a moment during the three year period that the state studied more than a male roughly a million people joined the medic hell roles and the state of california it was a time of recession a number of people who used to be general population are now medic help people migrate into the medical coverage other members of the general public or are medicare and if so at what point that the phrase general population isn't defined by regulation or elsewhere but as c m s the i thought of it as the state of thought of it as generally we don't want medical beneficiaries doing worse than other people in terms of their access to health care we don't want private insurance systems or medicare or you know people who are paying for health care themselves to have better access to doctors than others so  study here is actually very telling on this point you have folks who used to be not on medicare i'll call them general population they're now coming into the medical system ok you don't have prevented providers in the state going up at all that the number providers has remained relatively constant during this period so you've got more people you need to accommodate within the medical system with essentially the same provider base if if medical rates are not sufficient to induce providers to provide care to those additional people you would expect that the per capita visits by medicare beneficiaries to doctors would be going down but that's not what happened at all what happened was per capita utilization remained constant through this three year period even though you've got a million new beneficiaries coming on the rolls and and providers are also not hospitals in pharmacies and so on dropping out of the medical system because they're not paid enough of a get the record but i'm troubled by the fact that there doesn't seem to be an acknowledgment of any of that in the materials that you provided the materials you provided seem to say everything's just great everybody's wonderful our bodies happy lots of doctors a lot of people are willing to treat no that's not what is being reported out there with respect i don't think that's quite right your i mean c m s i just approved the state plan amendment and initially because the state hadn't made any attempt to show evidence sure and i never ensure the way that a ten percent rate cut to hospitals was going to have no effect so c m s required the state to go and gather some information that would response responses to the question whether the plan amendment that's being challenged here was going to take the state out of compliance with section thirty eight and evidence that c m s requested was put was given to it by the state c m s looked at it incidentally the evidence that was relied upon here is substantially the same type of evidence that access prong of the statute and others and this court's looked at the evidence that c m s had relied on there which included provider participation rates over time per capita utilization over time and the state's monitoring plan and this court noted that that was the same types of evidence that the congressionally appointed medicaid and schip payment access commission had recommended looking at and found that it was not arbitrary and capricious for c m s to approve on that basis so i think this court would have a very difficult time distinguishing or manage that's under managed pharmacy care right so i guess i don't see how it would be easy for this court to distinguish its own analysis and manage pharmacy care with relying on provider participation rates over time and we're going to be in this line of baseline comparison and that other case the managed pharmacy care i confess i don't know precisely what the reference to baseline utilization meant there but i don't think it was the type of evidence that my adversary here is asking for because i wasn't there some comparison in the managed pharmacy care between what the medical folks were getting the access that they were getting in the access the general public was getting i'm not confident that your honor i but i i not aware that that evidence existed there and and in a way that differs meaningfully from what exists here i mean it's true the secretary has to draw inferences right government the state and c m s have a lot more information about government health care programs than they do about other insurance programs  private health information of people who are not participants in government programs so the secretary has to you know draw inferences draw inferences using its expertise based on the data for it and when it sees that folks who used to not be in medicare and who are now in medical are able to method like are are getting visits at the same rate as the medical people before that saying that medical was able to absorb those beneficiaries and and that's that's not to you know say that a state can always cut rates in a way that that w was deeply concerned here about whether there was going to be an access problem but as it turns out the at least for hospital outpatient services in both metropolitan and metropolitan areas there was no access problem and  there actually was no decrease in access as a result of the what you're saying makes perfect sense except for the statute so congress passed medicaid so poor people can act can get access to health care if you're saying that the way things were going california even during this time when the rates were cut access was the sting utilization trends were fine the number of providers stayed constant so poor people were getting access to health care everything's great but that's not the statute that congress passed congress passed a statute saying that the secretary has to ensure that poor people get access that is equal to or better than access for the general public and that statute requires that a comparison be made between medic cal and the general public so just because things are going fine with the medical population what if the general population has sweden like access or denmark like access to medical care then the comparison wouldn't work out so no matter how well medicare was doing if they're not doing as well as the general public then the statute isn't satisfied would you agree with that no and there's a lot to respond to and in there i think the first thing to keep in mind is that the this court held to manage pharmacy care that there's not a particular type of methodology that must be held here this is not there can is not a particular comparison or to interrupt you but let's go to the statute the statute says that the state plan must say be such that the quality of care arse is sufficient to enlist enough providers so that keren service that are available under the plan are available at least to the extent that such care and services are available to the general public doesn't that require a comparison between medical in the general public it doesn't require any express it doesn't require any particular data be looked at absolutely the secretary must make that finding the secretary must conclude that her satisfaction or his  value waiting what the access is for the general public because you're not you only have one side of the comparison you only have the medical there was no one else at all of the other of what medical access was being compared to which was the general public well i think and i think that's sort of your question i think that's a dumb statute i think that the way the secretary did it is fine but for the fact that we have to follow the statute that congress wrote that the statute as interpreted by this court and you know the vast majority of other courts of appeals that have looked at this have not required the secretary to you know use any particular methodology to figure out how to satisfy that last prong absolutely the secretary must say the medical beneficiaries are at least if the general  the general population generally is able to get to a doctor relatively quickly if they need to counsel with respect don't you have to have some evidence of what's available to the general public no i don't think you do i don't think you need any particular type of evidence here c m s is the one that is charged by congress with implementing this statute and there is evidence here that suggests that medicare beneficiaries are not doing worse than others and that is enough under the under the standard of review set forth by this court and manage pharmacy care that is enough and it is it is not for plaintiffs to come in and second guess and say well really this type of data would be more probative or more reliable that's exactly what the plaintiffs and managed pharmacy care tried to do and in fact they had they had evidence and managed pharmacy care here plaintiffs just have what if a hospital's only treating one patient a year and emtala like in the thousands of pages in the record here and all the material submitted to c m s there's no suggestion that hospitals are only seeing medicaid cal beneficiaries like because of and not for other reasons and you know the secretary also has to approve a plan amendment submitted by a state by statute thirty nine hundred six a b so you must must approve the plan amendment unless it can be persuaded that the plan amendment doesn't comply with the statute and so i would expect plaintiffs here if they think that there was really an access problem would have come forward with with some evidence that hospitals are only participating i gather it's your position that managed pharmacy express fifty one of manage pharmacy care where it notes among other things that the state's analysis there had relied on the provider the rating of providers participating in medical total number beneficiaries by type utilization of services by type there is also the benchmark respect as my colleague has pointed out it misses the other half of the equation talked a lot about medicare medicaid or other but it doesn't talk about the general public i'm not seeing end here now the plaintiffs are saying you should have a study of the general population but this court's holding a man's pharmacy care says you don't get to tell the secretary what type of study she shot she has to have again absolutely the secretary must find that  compare unless you know what they are well and i would that that's been done right but the secretary at excerpts of record twenty one seventy one says in light of the data c m s reviewed the monitoring plan and our consideration of stakeholder input we have determined that these amendments comply with section thirty eight and express lays out the language we've been talking about here so you know the secretary made made the judgment that you are looking for i think we're drains passing in the night but we appreciate your thank you please one i'm probably going to beat a dead horse here but i'm just going to do it the student writes a paper saying ok i got i have to prove that x is better than equal to y and that's the proposition and the student says x is really really good and therefore x is better than or equal to why would that be a valid answer no because but there were talking about a pure question of logic rather than the administration of a scheme a very complicated scheme by the entity that congresses has you know delegated responsibility for implementing and there's been no suggestion here that in the year two thousand to two thousand and ten you know the general population suddenly gains sweden or denmark like access to health care here you know c m s is operating in the real world based on the evidence before it and what all that's being challenged here is is a rate cut they are saying that the rate cut vialli section thirty a and c m s said ok let's see if the rate cut cause any problem and it didn't it didn't cause any access problems and that certainly seems like a reasonable and in any event not arbitrary and capricious line of reasoning to me and certainly i think the stance of the e p a would compel this court to reach the same conclusion thanks for bearing with me thank you very much you have some complex area and shoot your preparation and your presentation thank you very much the case just argued is submitted