good morning counsel we'll move now to case number four and they can prosper versus alex is our this is appeal number twenty dash thirty seven we're going to begin with counsel for the appellant mr pease to reno i'm just at to help set the stage for the court at a high level in this process or litigated three times before l j the question of what the treatment for her brain cancer was medically any and as an anomaly in that case the prince here today we have a th a j l j who decided the complete opposite one hundred percent inconsistent grow decided in his view that it wasn't medically reasonable necessary to treatment process brain cancer so the same patient seeking the same treatment to address the same brain cancer has three results one way and one another way and i would present here today is just our view th that's barred by just traditional principles of collateral stop distribution we know how much money is an issue with regard to one of the segments of the treatment yes it is significant so the treatment here costs in the range of twenty thousand dollars a month so the claim before the court today here covers a four month period so would be eighty thousand dollars and i do think it comes back and comes back to a very important issue is just the sheer financial burden in this process what would have to come to pass for miss prosser to get an invoice in the mail for eighty thousand dollars yet so what all that would have to happen is that the decision at issue in this case today is not reversed the next time a sponsor that says is when both the supplier and the beneficiary have knowledge of the claim may be denied then the beneficiary is liable so just the next time it's process and it's a claim if it's denied under the secretary's own processing she and twenty one wouldn't that determination bring entail some kind of judgment that the electrical field treatment is not reasonable and necessary as of qualify for reimbursement under that statute and then again under the secretary's claims processing manual because both miss processor and the supplier in this case know the care or charge with knowledge of the denial in this case then again as they say in the claims processing manual the beneficiary is liable and this process would be liable again if it was a four month period for eighty thousand dollars when the cost of the eighty thousand dollars to date is that nova cure to date in this particular case on a gross claim it has been zero but your so far but again i'm going forward basis because the result of this case is not reversed and this process will be charged with knowledge but hasn't been l c d changed the l c d was revised in september case on the issue about whether it was medically reasonable necessary for ms process or the tree here and so if i mean if i may just briefly turn to the standing issue because i know obviously that was the ultimate basis for the district court's decision and i know what we see what we are saying is i think we think it's an important point to focus on the entitlement the statute has created here it's important to understand i think the statute does not create an entitlement to the treatment won't stay at you again in this case forty two u s c three hundred and ninety five k was denied by judge grow in this case right that's that so coming back from an overarching issue of this process has been denied her substantive statutory right here at the entitlement to medicare pay for the claims so just coming back over all again as you know understand on the distinction between substantive rights and procedural rights and here of course this is a substantive right it goes straight to the core of the very reason for the act in the medicare act which was to in the words it's been hard to insure the elderly in know in the sense of cases where the beneficiaries represented joe it is the kind of thing that our firm does and so i would say just overarching our experience has been something like to add now something like ninety percent of the l j's have found for coverage in the case that we've been the present day right and in recent periods but if you go back to this time period of the you know january to april of two thousand and eighteen because i'm just trying to figure out what what's going on here is is no the cure or the real party  interest here or what you know is nova care out a bunch of what they see as kind of r and d recovery and what i think is i don't understand it maybe this constant team will agree with you  that it's likely that miss prosser is going to get any one thousand dollars invoice will see in a few minutes but it seems that seems a bit attenuated to me and so i'm trying to figure out what what does miss processor really ha miss processor herself not the supply so there's a boatload of cases saying that's wires don't have the right to get the recovery it's miss processor that has the right so what we say is that she's been harmed in two ways one just flat out denial of her right to for quote unquote the medicare mull stoppel again i know we've cited multiple cases just on the issue but there is a presumption the presumption can only be overcome by showing a congressional intent to abrogate the common law in order to do so  our long history with medicare as a nation are you aware of any court that has held that an l j coverage decision has collateral estoppel effect well i know presumption is there and i do want to make a point about the very narrow group of cases that you're dressing here has to be a case where the beneficiary is represented before they want on the exact same issue it became final and they came back again on the exact same issue so it can't morning your honour's i mean please the court i think counsel for the of pollen has made a number of assertions or understanding issue and the substantive issues in this case including the issues that were actually decided  administrative law judges decision that are just plain wrong this court ultimately need not and should not reach the merits of this case because it is very very clear that most problems are does not have standing so i'd like to address a couple aspects claims were but not through a source of her liking if you look at even the statutory language that counsel is reading it doesn't say that there is a right he meant by claims from a particular source it's just a right to have claims money i fungible so this case is not like other decisions of this court involving a statute that creates intangible rights such as you know a privacy interest or something like that it's a right to payment in this case the very administrative law judge decision that is being challenged in this litigation recognized on its face that mr roster is not liable for the claims that were denied so this court in some of its questions all good to this idea that the that the claims were cover so in some ways the standing issue overlaps a little with the merits issue in this case and that one administrative law judge decision it doesn't have any effect on future different plaintiffs and that works to his processor benefit in some ways his constancy can you go back though to that this would have to happen and then that and then the following so let's just suppose in march of two thousand and twenty one couple of months from now that all of those things happened with respect to a current period claim what i'm what i'm foggy about is well sure that would reflect a denial of you know coverage in the here and now but how would that result in an invoice being sent to miss prosser for the period of january to april of two thousand and eighteen that's that that's what i can't connect very well it wouldn't and there's an important statutory provision here that this pastor is mistaken about in the brief and that is  receive an invoice from the supplier he would have had to been provided with in advance beneficiary notice and in addition to that because this is durable medical equipment would have to have signed an agreement to pay and there is no evidence in the record that that was still ever happened now this process states in your reply brief that those provisions only apply to telemarketing that's simply mistaken the provisions if you look there's a cross reference on the additional statutory basis for that assertion and she's simply mistaken about it so again you're given these additional statutory protections there's really no immediate danger that miss processor would receive an invoice for payment or anything like that there's also a factual issue that judge brennan pointed out that i think is very significant you know and that is that by the time this processor initiated this lawsuit in february two thousand and twenty the local coverage determination that had formed the basis or the denials of the for administrative law judge grows denials of her claim that issue here had been retired so it's very speculative and not at all clear that the new local coverage determination that allows  of coverage for this treatment that she would be charged with notice of a likely denial under a new local coverage determination and that's a very significant fact that ms prosper basically ignore is in her in her briefing ball again which is the terminology used in the briefing is a sufficient basis to fight injury in fact it is not it is not your because again what is deemed a mulligan provision i regret that i don't have a better shorthand for that but that you need to have this processor is at most arguing that she's potentially lost this right to indemnification and but she isn't really sure that she's going to even have a law yet again there's no there's been no advance beneficiary notice a new agreement the pain on her part and both of those things would need to happen before she could really complain that she wasn't getting indemnified and our job layering into that the point that you made before judge brennan asked his question about the mole again that appellant's characterization of this case as a high level is accurate and i think that's very helpful to resolving both the standing and collateral issue so at a very high level at the time of all of the claims that are in question here including administrative law  appealing to an administrative law judge and pursuant to regulation has the discretion to not apply local coverage determination but that same regulation all of the administrative law judges relied on in their decision says that a a judge's decision to not apply a local coverage determination is limited to that particular claim it doesn't have any effect it doesn't affect the qualified independent contractor earlier to review and it doesn't apply to other claims it's very clear on that so essentially this cultural stuff whole argument is challenging the entire regulatory scheme it's not ellen is not addressing kind of the threshold issue of the issues administrative law judges are authorized to decide  they don't address the issue of whether tumor treatment guiltier feet is generally covered or whether it's a reasonable necessary as a general matter and the secretary has issued regulations with the force of law that saying that a decision  deciding to not apply local coverage determination only applies to the particular claim under consideration so it's to state that administrative law judge concerning one set of claims as collateral estoppel for another different plane it flies in the face of that regulation and when effectively repeal this decades old claims process that has been upheld time and again another problem is that i think it's clear that the appeal of public recognizes is that in effect if the court recognize collateral estoppel in the way that the opponent is claiming that what functionally be deciding future claims or benefits and there are many decisions i encourage the court to look at the d c circuit sports you can see decision has an excellent discussion on this issue but i mean this goes that's functionally what it's doing whether she turns out or not and the scheme is not set up to use constantine you are these the kind of cases that you you work on a regular basis kind of covered  seems odd that an appeal in the th circuit in two thousand and twenty one would be the st time there's a question about the collateral estoppel effect of a benefits determination there's a clear reason for that and that's because if you look at the regulations so specifically forty two r four or five times sixty two dollars it tells you what are you know especially in a case like this one involving a local coverage determination it defines the issue that the administrative law judge is empowered to decide which doesn't you know go generally to this issue of complying with the administrative exhausted requirements i mean it's all this it's a reset up and to the extent a beneficiary wants to challenge the local coverage determination there is a separate procedure for doing that in  lot about the secretary's regulations and how the secretary doesn't feel that collateral stoppel should apply but one thing that we know of course is that it doesn't matter what the secretary's regulations say with part of collateral stoppel the secretary has to point to a statute reflecting congress as  any denial would be the conclusion that in this case for example the treatment is not medically reasonable necessary that factual determination whether or not it's medically reasonable and necessary that's exactly the factual determination that was made by james woodward figaro insert dina's so again it just goes to the basic issue of the factual issue as previously litigated it is a final subject of a final decision you don't get to just keep on related gating time and time again until you get a different result so i know when one question was could there if you look at the medicare claims processing and what it says that there are two ways the beneficiary could be charged with knowledge and therefore lose their right to the medicare mogen one would be is a provider in this case no but you're presented the beneficiary with  came back and asked about how can this process be liable she could be liable again and face financial liability for sixty dollars to eighty thousand dollars if she does exactly what the secretary contends be put to the choice of signing a document saying that she will be personally liable liable is if she signs an a v m that's not true also with regard to the knowledge again if you just look at the medicare claims process you know the two ways that a beneficiary can be charged with negligence one by signing an a t m or two having a prior denied claim that's exactly the issue here if this case is not reversed she will be charged with knowledge of the not in this case and therefore lose the rights of the ball again and any future denial on a future while she may be personally liable i know for example this port in terms of liability going