all argument to make a few points with regard to my client's reasons hospice that i believe place seasons in the category of the cases where federal court jurisdiction has been assumed on a waiver of the failure to exhaust administrative remedies and to distinguish our case the seasons case from cases in which such a waiver has been found to not exist in summary seasons seeks relief here from the process of recoupment it does not seek a determination on the merits we seek relief based on a request for an injunction or mandamus or some combination of the two which forces the secretary to assume the responsibility as mandated by congress to provide a meaningful and appropriate hearing for seasons within the ninety day period and to have a decision issued within the new period from the time the appeal was filed i think significant in this case as it relates to other cases that have been decided on this issue both pro and con to seasons position is the fact that there is no alleged fraud in this case there is no alleged misrepresentation in this case this is a case involving an allegation of overpayment based upon contractors who are engaged by the secretary who are paid based upon the amount of overpayment that they are able to determine and whose record is dismal to say the least as it relates to identifying and having those overpayments sustained that the district court is is uncomfortable or this could be uncomfortable of issuing the injunction on recruitment but would would characterize its ruling in such a way as to suggest the secretary either or either provide the hearing or stop the recruitment process we would be seeking the order to provide the hearing either stop recruitment or provide the hearing so i think some combination of the tube but i think the simples question of telling the secretary that hey look let these people jump the lot it's a question of of telling the secretary it's your responsibility so make your choice either provide the hearing or in the interim stop t recruitment process and the government has argued in a number of these other cases were groups of health care professionals have gotten together to bring these bandanas cases well we can't settle these cases we can't pay these claims because to do so would violate the medicare act because they are they're not appropriate or eligible services that issue does not exist in the recoupment case there's no contention on the part of the government that the claims that are currently being submitted to see mass are anything but eligible services so it's just a question of whether or not you stop the recoupment from the eligible services you're not asking the secretary to violate the act by simply stopping the recruitment you don't have to have a line jumping situation you certainly don't have that issue with regard to the payment for eligible services it simply is a choice by the court to to determine upon whom the burden should fall in this particular case congress has clearly mandated that if in fact a person in the situation of seasons has an issue with the determination that the second level of appeal that they have a right to go to the a l j and ask for here that hearing is to take place and a decision is to be rendered within a very short period of time ninety days and we're not talking about minor delays years it's not a question of a situation where you've got somebody who asked for a hearing and there's a six month delay which you know you might suggest is it is contemplated by the escalation provision of the statute itself or when you're dealing with my client was entitle to this decision within the ninety days as of today we're working on somewhere around eleven hundred days i'm sorry i certainly could have escalated long ago but the escalation as the district court and the circuit court the d c circuit court has indicated comes with some real difficulties for the person in the position of seasons hospice by escalating we take the risk because the the a b s review if it so chooses is on the record this is why season's position as it currently exists is so much different than than some of the other people who brought this case is because take that risk because clearly that risk does not exist at the l o j level so by escalating we're clearly giving up our rights under the statute to have the hearing that we're entitled to at the ale j level while i don't disagree with the court that the option of expanding the record exists that the da be more than ultimately from the da be to the peel to the district court then goes from being a requirement to discretionary and and i that's a very real right in a very real opportunity for is is is under a different provision and we did and i and there's been some suggestion in the in the in the government's brief that it that it wasn't properly laid out in our complaint and i would yes and i can i can point the court to exactly where it is and it's in page on page six of character sixteen of our complaint it's also in our motion papers for a request for an injunction specifically asking for manda acknowledged and argued on behalf of the government in their response at paged it's a page one twenty and one twenty one of the joint appendix submitted to the court with our peel so both sides were aware of it both sides briefed it and certainly it was submitted to the court now the court chose not to address it at all which is one of the issues that we have with regard to the individual components of the waiver argument district court did find that season's request was collateral to the underlying claim we certainly have no dispute or argument with the court  on that determination however the government in its brief has suggested that that is that is not the case in that we were relying upon an expert witnesses testimony in the hearing on the motions  this miss and while that is absolutely true we did call an expert but as the court i'm sure knows the fact of the matter is that in trying to get an injunction in this circumstance we are required to demonstrate to the district court that there is the likelihood of success on the merits when the merits in fact do come before the court so we called the expert for the sole purpose of suggesting to the court that if the court were considering granting injunction that we had an expert witness with examine the record and did in fact find the necessary documentation required under the merit medicare act to rebut the findings of the q i c and again back to that particular sir a situation which i think is particularly relevant to this case and perhaps unique to this case although i can't say for certain and that is what happened at the second level to q i c level so ordinarily w you have is an appeal they come in and what happened in this case at the first level certain of the claims were in fact rebutted and then ultimately dismissed at the second level the cue i see comes in and basically looks at all those claims and did in fact sustained seasons position with regard to each of those patients with the exception of three so we're down to simply three patients at that point but then reinstates twelve of the ones that they sustained seasons position on based on completely new grounds patients that they reinstated the queue i see refused to accept the information thus putting us in that position where we're in where if we escalate we go from being allowed without discretion to provide that information to an able j to the situation where we are are then ultimately at the discretion of the da b and then ultimately the district court as to whether or not we're allowed to supplement the record  well initially the recruitment amount was about two point four million dollars it's been going on for close to three and a half years at this particular point and depending on whether you at the time of the hearing there was a little over one point three million i believe still owed under the recruitment process and we certainly would suggest that the injunction to the extent it's granted or relief is granted that it should be as of the day at the very least as of the my stay with regard to that is the by granting the injunction the the burden of the failure to provide the hearing as required in the statute then falls upon the government whose actions are responsible for the fa provide this absolutely fundamental right to seasons hospice and that in doing so we don't jump the line it's completely equitable we're we're certainly not requiring the secretary to do anything other than what is allowed under medicare so that's you and and perhaps this court and other courts in doing that will spur the imposition of some kind of solution as to what's going on here because of the fact is that as i stand here before your honor's a year and a half after i stood in the district court and the secretary is no closer to solving this problem today than they were then and i would just suggest that the burden of this by simply stopping recognized the medicare act establishes a ministry to exhaustion proceed that must be followed in all but exceptional cases in order to demonstrate entitlement to a waiver of that exhaustion requirement they're required the challenger needs to make three independent showings first the claim needs to be merely collateral to a claim for benefits and colorable they have to demonstrate irreparable harm and exhaustion of the process needs to be few tile we would s seasons actually hasn't done any of those things let alone all of them as to the futility as judge gardner talked about they could if completed administrate of exhaustion by escalating years ago there are national request for an administrative hearing was filed in july of twenty fourteen that means by october of twenty fourteen they were free to leave the backlog and proceed with exhausting their claims by the middle of two thousand and fifteen if they hadn't gotten review the addition of evidence at the board stage at the fourth and final stage but they actually have had ample opportunity to build their record at the third stage at the l j stage notwithstanding the fact that they haven't had a hearing at night i'd like to if i may walk the court t regulations that together clearly show how this was supposed to play out first is four o five point ten fourteen and what that says is when you request a hearing one of the first things you're supposed to do at the outset this is provision  says that you're supposed to identify any additional evidence that you want to have added to the record and this is something season's should certainly should have been able to do because all the documents at issue here are in their sole possession and in fact make claims that they claim that they gathered them and submitted them to the second level review or unsuccessfully the second relevant provision is for a five point ten eighteen and that says the timing for actually submitting those documents and what those what that provision makes clear is that you don't wait till your hearing to produce your evidence yourself supposed to submit it in advance the third relevant provision is four of five point ten twenty eight and why that's relevant is because the medicare statute makes clear they want providers to put their evidence in early so there's a good cause requirement to get any evidence in if you are seeking to supplement the record at the third level for review and what that provision says again in eighty two is that it is per se a good cause if the reason you're putting in additional evidence is because the q i see the second level review work decided the case on the ground different from that used by the lower levels were of your work and the final provision and this is really the crux of it all is for zero five point ten forty two which is entitled administrative record and what that provision says is that everything every piece of paper basically that came before the a l j including papers that the a l j never whirled on or never had a chance to consider are part of the administrative record and provision a for of ten forty two says in a case where it's escalated the entire administrative record all of the paper is going to be together and move forward and go up to the da be so they absolutely had the chance to get in their documents here and even if for some reason that failed as your honor recognized there was again an opportunity to do that at the at the fourth stage because for a five point eleven twenty two allows the appeals counsel to  ccept additional six submissions of evidence so to the extent that they're worried about being prejudiced keep in mind the evidence at issue here is all documents within their sole possession they've had an expert who testified that based on the documents in their possession that expert was able to reach the conclusion that all fifteen of these overpayments that were assessed are determined by the lower level reviewers who are in error if they want to put those same materials to the extent that  expert who testified to this for expert report is a begins at a sixty eight of the the of an appendix she had the opportunity to room she found that she could reach a conclusion based on these documents it's a documentary case they had the ability to make sure those documents were in the record and then to make sure that if there was any judicial review after timely administrative it's a proper administrative exhaustion be that through escalation or a final decision the secretary escalate to district court because there is an escalation predicted there's an exploitation provision that applies not only from the third level to the fourth level but if the d a betov fails to time we act in cases that have been escalated once already the time limit under the regulations is one hundred eighty days so basically if they'd escalated twice through the third and fourth levels they would have had the opportunity to make their full record and two hundred seventy days from their data filing which was in july of two thousand and fourteen so by the spring of twenty fifteen they could have been in district court with the full record they wanted and the opportunity to show that the supposed errors the supposed failure so why the necessary documentation to show entitlement to payment on these medicare claims that that documentation was actually present they had every  have have made different choices i'd note that the secretary is continuing to work to try to solve the backlog there have been settlement initiatives for example that have been introduced in an effort to try to address this problem and in fact two new settlement initiatives that this isn't in the record but it was recently announced in the parallel in ministry of hospital associations litigation to new what settlement initiatives were on fail just a few weeks ago this is a problem the secretaries diligently trying to tackle it's a really intractable one unfortunately but some providers are choosing to wait hoping for settlements or deciding that they don't feel that they'd rather choose to wait that's that's a decision up to each individual provider but by in terms of do they have the statutory entitlement i'm i'm aware of i'm aware of one pair of district court cases from north carolina where there was escalation from the third level to the fourth level there however the  da the board did issue a decision so there was a there was there hadn't been an escalation past the fourth level but there the statutory framework is quite clear that once you have a final decision of the secretary you are allowed to go to district court in the district court can reverse that on the merits if it's not supported by substantial evidence and if you escalate twice then the decision of the second level reviewer is considered the final decision of the secretary  that is true donna but but but if you understand the nature of the claims there they're saying here if and i encourage the court to look at april ryan's report both for this point and also  because i think it's relevant to the issue of whether their claim here is merely collateral to a claim for benefits she walks through every one of those claims and says the second level review or claim this document was missing and the signature page or this date range was not included in the records which is a necessary criterion document in your retirement to payment and what she goes through and she said that documents there and if if she's right and if she's able to and if it reaches a district court judge and the basis for decision is the and it is your honor but i'd also point out that what we have here is really fundamentally a procedural due process claim and even if there were a statutory deviation even if they were to show the secretary wasn't meeting at statutory responsibilities that would necessarily mean that the deviation took on a constitutional dimension here if for example congress just eliminated the third and fourth levels or for review and said you get the first two levels and then you go to district court that wouldn't be so deficient i think as to fail to satisfy due process on a constitutional level and yet that's really the implication of their due process claim so i think when you're talking about whether they have stated a colorable constitutional claim here they haven't first of all there's this threshold issue of whether or not they they pleaded it just because j a to from their complaint the introduction says the whole relief sought here is a stay of recoupment they didn't ask for a hearing in ninety days what they asked for was a stay of recruitment and if you work at their prayer for relief which is it page thirty four of the joint appendix again the only relief sought was a stay of recoupment they didn't say i'm entitled to a hearing in ninety days those i don't think they can show a clear and indisputable right to that under the statutory scheme the statutes quite clear this is in thirteen ninety five d d d sub par f that you can't recruit for the three during the pendency of the first two levels of review  third level you're allowed to review begin recruitment in fact agents federal agencies have a responsibility generally when money is owed to the government to go and obtain that money i'd point out moreover that if so there's the question of whether it was pleaded then there is the question of whether they could show any entitle me i'd also point out on the on the recruitment that in addition to legal issues there's a huge practical problem with allowing providers in their situation to get recruitment because in essence what that's asking what's that would be concluding is that every provider who appeals is entitled to an interest free loan from the government for the duration of the proceedings and all that would do is create massive incentives for providers to appeal every denied claim and would just compound the backlog far more because what you end up with is every provider if the mere filing of an appeal from a lost at the at the second level review would entitle a provider to just sort of keep the overpayment first long as they can keep the litigation going why wouldn't every provider appeal every claim there's no filing fee for seeking further review there's no downside from the providers perspective so there's because well the government doesn't get to keep the money because the escalation because escalation is provides an x already avin you to review for for the provider here that that's that's the path congress provided if you look at thirteen ninety five f f's up part d it says congress the agency shall provide a hearing in ninety days but in that very same subsection and it says the consequence of failure to provide a hearing in ninety days is that the provider gets the entitlement to escalate to the fourth level of review and similar way if they don't get a timely hearing from the appeals council they get to escalate to district court that's the scheme congress designed and the fact that they want some other option that's not in the statute they certainly don't have a constitutional entitlement to and i there's really no statutory basis either for seeking a stay of recruitment is is there simply no provision for that i  absolute but the review is completely different at the district court level as the d c circuit court found i mean it comes with some real cost to doing it and there's a reason why there are thousands of people situated in the same position the seasons is good and the very reason is because the very risk of doing it is is substantial the fact is here is that the government seeks to rely upon the statute to keep these providers from exercising their rights and saying you can't go outside the statute in order to try to fashion some remedy other than what's in the statute yet they run away from the statute when it comes to the very protections that are provided in the statute the fact of the matter is the recoupment as as put together by congress was based upon the fact that these providers would have a very short window upon which recoupment could be begun by the government and before they could get an actual review of the entire record we're talking ninety days here any provider can can can serve up but in this particular circumstance and that the the the level of delay at the d a b is equal to or greater than the level of the it's ten years regardless so essentially what escalation does is make you go to the district court where the review is a different review than it is at the ail j level with the risk in this particular case that your record will not be complete those are very real risks and cost and we're talking about hundreds of thousands of dollars to this provider the fact of the matter is the secretary should have provided the hearing and the and the the burden of this should fall upon the th