chevrons congressional intent indicates that speeding is a nurse seen or nursing related services and there's no reform law the secretary however virtually ignores the term nursing related and instead argue federal nursing home law assume that assistance with activities of daily living like feeding bathing transferrin from from bed to wheelchair and back again were no big deal they work they were medical tasks they didn't seem that complicated and because of that federal law didn't set any standards and the majority of state laws didn't send any standards as well that was a mistake and it led to a quality of care that the that the institute of medicine noted could be shockingly  deficient and is that congress in the annakin of the nursing home reform law to establish certification requirements for nurse stays and to apply those certification aid those certification requirements broadly to individuals providing nursing or nursing related services and we get this down to at least from my perspective what we're here about the quick unions what the phrase in the reform law nursing related  include all assistance with activities of living provided and in a nursing or a let me let me get quite clear what your contention is mr cross are you saying that it is a it would be a wrong construction of the statute as distinct from the authority of the secretary a wrong construction of the statute to find that a feeding or system was not embrace within the term nursing our nursing related that's correct under under so under step one of of chevron and in giving the language the purpose and the structure of the nursing home reform law feeding and assistance with other activities of daily living is our nursing related services and because of that they must be performing according to congressional intent by individuals who with no training whatsoever this was one of the the the in the nurse normal form law the nurse stayed cerf occasion requirements has been recognized as a cornerstone of those decisions and the reason being that in a nursing home ninety percent of the care is provided nothing nurses not by the individuals of the licensed nurses with college degrees but by the unlicensed individuals that the nurse states who help nursing home residents with did was that was going for either or it's going farther than was appropriate given what i think it was a prior considerable period of plan to start taking today and of taken into this in this litigation that the that the nursing home reform law prohibited the secretary from ruling that feeding was not a nursing or nursing related service so i i  understand your your your point certainly and plaintive certainly contend that the decision of the secretary here to probably get a feeding assistant frustrates congressional purpose and is is not an appropriate use communications with wisconsin and north dakota that the secretary did not have the authority to allow feeding assistance programs not it did in the secretary maintain during that time from nine hundred ninety one to two thousand that in the in the previous period in nursing homes that there was this assumption that these sort of these services were non medical and and that's not to do all that important and that was a mistake the nursing home reform law act in that congress wanted to set a floor for these individuals recognizing the ninety five that the ninety percent of the care in nursing homes is provided by nurse states congress intended to establish that floor thirty for non licensed individuals something much lower than college degrees obviously held by the licensed nurses but something that was at least considered adequate but not it not extraordinarily onerous which would use more than half of your time  quality of care for the systems with activities of daily living provided he and in nursing homes and the secretaries position in this case should or should not be given deference as pointed out the secretary has changed position without ninety nine percent of which supported the new complete of the proposed regulation as pointed out in the in a district court charter the fast majority of those comments were form letters that were generated by the to to to nursing home residents the care the nursing home residents need on a daily basis in order to maintain their health with this camera rolling someone in a wheelchair be nursing related services no your honor to individuals with complicated fee problems but just to make sure that there is adequate care provided by adequate adequately trained individuals and that the violate the purpose of the nursing home reform law if it were interpreted in such a way that individuals wouldn't with little or no training were poor providing care that the this is a very important case for nursing home residents because it is the first case to interpret this term nursing or nursing related services and the secretary's interpretation followed for other activities of the daily living would allow it was similarly allowed nursing facility care to be pieced out for individual providing bathing assistance or transfer other work to be deemed uncomplicated and then be performed by individuals with little or no training which is this which is which congrats conflicts with the congressional intent to make sure that this work is done by individuals who have is this moderate amount of nursing related services in the statute the plaintiffs have found nothing in the legislative history either a lie that would give any sort of the posit dispositive answer the question before the court there are competing dictionary definitions that i think that only sort of underscores the ambiguity in the statute given that there's ambiguity we move on to chevron's step two and the only question there is whether the secretary's interpretation of the statute as expressed in the regulation is a reasonable one and i think that that's eminently the case here the dictionary defines among other things the word nursing with reference to a certain amount of health related training and the secretary looked at the task we're talking about here heating assistance limited to people who have no complicated heating problems and said that is such an elementary ta something so basic that it doesn't rise to the level of nursing or nursing related services it doesn't necessarily rise to that and i'm going to adopt that regulation that would permit states to use these types of feeding assistance how answer is i think the secretary like like i think anyone would first just look at the common sense just look at the at the activity and question and says is this the type of thing that i think really requires the kind of training that we associate the word nursing they also the secretary then he uses his own expert judgment the secretary then issues a proposed rule making and solicit views from the general public and his judge talking points we received over six thousand  not performing a nursing function for the woman comes in at two thirty am and hands one medication is not performing in a nursing function it's a commissioner sort of says well that's the right i'm not i think that there's a real practical limitation to that and first is that feeding assistance i wouldn't say that it's unique but it's different from other types of tasks in that there are number of people who have no complicated problems and so all they need is someone statute itself provides another practical limitation on this on the slippery slope problem and it's this according to the reform law anytime you have a patient in an in a nursing home the resident the physician and the nurses need to make a plan of care plan of care that's updated periodically and the reform law also requires a nursing home to provide adequate staff to provide it's survived exactly the kind of care that all those plans require so if you imagine a nursing home for example our hypothetical one where everyone had almost no problems at all i suppose in theory you could populate that with you could staff that with a bunch of single  the secretary to determine whether or not in fact his interpretation will improve or degrade nursing home care the the more the more sort of direct you know on the ground answer is that we don't think that this type of regulation will degrade patient care at all in fact the plaintiffs you know that's that's the main theme of their brief but they haven't produced one piece of evidence to show that feeding assistance to the great patient care act the only experience that we have prior to the regulation was that in wisconsin and north dakota and they didn't show any degradation of care at all and you need to i think we need to keep in mind here is there's a very real practical problem going on that h h s was trying to address and it was this in a perfect world we have enough nurses aids to deal with all the problems for everyone but the secretary looked around and said that's just not the reality we can't fill all those positions and what nurse aides are doing that they're concentrating their tasks and their their time their energy on the people really complicated problems and what what the result is is the people who don't have complicated problems don't really get the attention that they need at all and the result from that is they're either not eating where they're not eating enough or they're not being in a nutritious meal and all for the lack of someone to do something as simple as sit with them and talk with them during the dinner calmly or for a provide dinner conversation or cut their food or spoon feed them and so what the secretary i think very sensibly did is that this is a situation that we don't really like to see and if we had all the nurse aids that we wanted that would be great but the feeding assistance limited only to people who have no statutory tax does provide some constraints here but it provides a fair amount of flexibility and that's something that congress has traditionally done in areas like medicare and medicaid and because these are very complicated issues and the secretary and the agency is aware of the facts on the ground and that's exactly why congress has delegated these type of things with within limits to the secretary so i think we would say as long as our interpretation is consistent with the statute and within mercy is there something that we can look to and they looked at wisconsin north dakota that would tell us whether we could provide more flexibility for the states consistent with congress is mandating and solve this problem and they said you know we have seven years of experience in wisconsin using a similar type of regulation and it worked and i think it's it's exactly the kind of thing that congress intends is for within the confines of policy in politics is all about and there's there's nothing and about chevron that says you can't do that you need to provide a reasoned explanation for it and i think the agency and all the things that i said before are the reason the explanation of back on the ground the experience of wisconsin north such as such as right i mean it is it is expansive but it's not as if the feeding systems are going around determining this i mean is to turn the end of the actual license nurses who a revised the patients plans a pair that i refer to as they make the decision about whether dentist forces and if there's a complaint by a resident you know i think that would be would be dealt with and there's various ways of dealing with that but i can't i can't guarantee you that everyone applying this regulation is going to be a hundred percent reasonable that what the answer to figure question is in a whole fully the rest of the nursing homes are also on the side of caution they don't want lawsuits any more than anyone else does and they're not there to sort of force feeding assistance on people that it's really not not called for but if i could just add one other point with your honor's permission is if you don't when you got into this discussion about complicated feeling problems you're talking about that's one reason why it's not necessarily inconsistent with prior statements i think the other reason is that none of those statements purported to say that when we think feeding is part of nursing or nursing related services the death of the only permissible construction of the statu