they basically fill the medical needs of the hospitals without need they made laser surgery more readily available to medicare patients throughout the country particularly the rule areas and they say the medicare system money in doing so space correctly so if it authorizes i mean if it authorizes two ways and then there the legislative history says in this second way here's what you can do i don't see override what congress specifically said it did in the conference report there are other ways to do it for example in a conference report congress could have said we allow for  language is not the way congress would do if it was using clause six to limit the secretary it says and in the other the secretary originally interpreted it it it uses as you said the word protected and then it says so long hands and then it goes on for paragraphs explaining how it's reading this and then it comes along in two thousand and eight and says well we see to address what what you are urging we can take the language that has these six clauses connected by an and so the fact that congress hughes different language that is directly the language you want to be imported into clause for the fact that it used that language elsewhere another another where you have congressman stark coming on strong on this issue all right and you have a complex statutory scheme that has tremendous fiscal impact and congress can't monitor this thing daily so it wants the secretary to have authority to make changes that the secretary determines protect the congressional intent and it would be different if for referred specifically to what use say the legislative history provides but it doesn't work again because congress has spoken directly to the issue really and the senate bill one along with the house committee that said you can have my words per click but it didn't limit the secretary in terms of this clause six focus on the word other but different statutory text all around that's what makes it different and you can't just take two statutes and push them together when the text is different correct but the government congress says here's an exception and here are the things that can happen under this exception all right and then it says and such other requirements as the secretary doesn't say and such other requirements not otherwise set forth  that the rental charges are creating conditions in which there is patient abuse and inconsistent with congress's overall goals number of ones and frankly laser surgery is not one of the ones that identified the only reason that we're even here is because laser surgery by virtue of a secretary's regulation is doing it has been coming within the their own by third party cannot see how a group of your ologists is able to perform laser surgery even with the curve least because of the change in furnishing and my first question is how does more than one year ologist working together do it now well it's not a cure for you because if you look at the heart regulations the agency entity furnishing designated health services prior to two thousand and eight the secretary interpreted that phrase as only speaking to the entity that bills medicare without regard to who is performing the services with the secretary changed in two thousand he was to interpret the phrase entity furnishing designated health service to include the entity that actually performs the service and the entity that bills medicare for it because what was happening was there were entities that were performing the whole serv away the billing with the hospitals all were that's right so most most of the time when an entity is billing medicare for a service say hospitals billing medicare for service the hospitals performing the service itself so where this regulatory change has some teeth is precisely in the under arrangements relationship where a hospital is contracting with a third party provider to provide services to the hospital's own patients and for many years the secretary allowed these arrangements precisely because you can imagine circumstances in which it's not economical for a hospital to maintain all of the facilities the equipment the expertise the staff necessary to perform certain operations but what the secretary was discovering was that more and more things that hospitals and radiologist the hospital didn't perform the services that the doctors were performing and less i'm just confused you said the doctors i mean the hospitals are performing their services they're not performing medical services the doctors are performing service that's right and the clarification is that there are two different kinds of payments that are made for the services we're talking about where there's the doctors own labor and the the physician whether in operations performed in a physician's office or an ambulatory surgery center or a hospital the physician is paid through the physician fee schedule this case is really about the technical feat a separate fee that is not for the doctors labor it's for everything else the overhead the equipment supplies and so what w happening was that the hospital can the hospital bills medicare at the hospital rate for the technical component of the service and then engage in these relationships with physician don't for third parties to actually furnish the services and the secretary sa all that more and more of this was happening and i concluded that what was happening was that hospitals were feeling pressure to contract with these physicians because physicians control referral streams to hospitals physicians are the ones who are are are seeing the patients and deciding whether this patient is a good candidate for surgery or not what type of surgery and where should the surgery be performed and hospitals were aware that if is issues were engaging in collateral business ventures to own equipment and  to hospitals or to contract with hospitals to perform services if the hospitals in contract in those positions the physicians may enter in into arrangements with other hospitals elsewhere so what the secretary was trying to do here was to prevent under arrangements relationships that didn't have you know a real business reason other than to allow physicians to not only make money off being physicians but also to make money off being provided part of the technical component of medicare here and i didn't read i could have a county to do to reach that conclusion but here you know the legislative history does not compel the conclusion that the secretary is foreclosed from invoking clause six power to protect against program or patient abuse and i think judge rogers hypothetical was a looming kind of congress intended as a broad authorization to the secretary to take steps when the secretary saw all of the use happening on the ground and if congress had intended it is characterization of cause for in the legislative history to prohibit the secretary to tie her hands from a nursing program or patient abuse in the future you certainly would have expected congress to say that and you would have expected you in this what do you m this this is a circumstance in which congress intended to empower the secretary to act against programmer patient abuse i think i heard my opposing colleague refer to the legislative history  in ninety seven which is in the two thousand and one where the secretary is saying quote we have reviewed the legislative history with respect to the exemption for space and equipment leases and concluded that congress intended that time based their unit of service based payments be protected and my focus was on the next clause so long as and then right that's it uses the word protected that's right your honor but there's a critical difference there that's the asians use prior interpretation about prior judgment as to what it was going to do this is not instructions from congress so then it comes along later and says well promulgating other requirements as needed to protect against program or patient abuse the court has any further questions about the case i'd be happy to entertain them otherwise if i think the panel has a good handle on the case and we rest on the argument if i have one very simple question can tune your perform laser surgery in a hospital as long as they are not left sores of any equipment yes and even if they are less hours of equipment they can do so if it's just an if if it's just an equipment lease and if the equipment lease is not structured on a per click basis or physicians could be employees of a third party venture that contracts under arrangements with the hospital and if so long as there are compensation exceptions that cover both links in that chain the or all just could also  that so there are actually a number of options here by which you're all just can continue to partner partner with hospitals of course the secretary so all of that there were many services that don't need to be performed in hospitals can be performed in ambulatory surgery centers  if the plaintiffs member organizations wanted to form their own ambulatory surgery center and and participate in medicare suppliers and i think forecloses them from doing so what the secretary saw was that procedures are being billed at the hospital rate had was that certain positions who would normally could build directly medicare or billion arranged with hospitals in order to take advantage of a higher rate well that have here is a failure of on the part of the agency to provide clear guidance in a situation where the consequences can be quite severe and that is a violation of the thank you