the st case is avon nursing and rehabilitation versus a's our will i believe mr feldman i meant your argument and i understand that you will have two minutes rejected proposals to give states discretion order choir nurses only on annual survey congress used precise statute to statutory cross references in a manner endorsed by five recent supreme court final rule legal under four o five b although one couldn't but because the district judge couldn't do so under four hundred and five she asked the government your honour's should a four hundred and five g district southern new england telephoned to withdraw section one thousand three hundred and thirty one jurisdiction not only is there no such statement here but to the contrary when congress enacted medicare and medicaid it did so together in one thousand nine hundred and sixty five and in that act chose to strip jurisdiction only for medicare and not for medicaid respecting that choice will not open the floodgates facilities challenging adjudications like survey results or penalties will still need to their mistreated remedies before before coming to court reversing here will allow for more room making challenges under the medicaid act to proceed as in the seven circuits that when we counsel case but not open the floodgates a clear statement is required to withdraw jurisdiction and the supreme court has gone so far to say mims that even if there is a rationale for stripping jurisdiction like the th circuit purported to find that quote m are st that these are substantially identical statutes and nd that we're talking about to leave participating facilities both of those arguments could not rise to the level of changing the doctrine but they're wrong in any event there's no  later and also that argument leads to an absurd result which is a rule violating a unique meditative statute get struck but one that is doubly offensive and also violates medicare survived seem like it's an odd difference between the crew and their otherwise so that with the saying yeah yeah that's that's an excellent question your honor here's what congress did they didn't tell us why but there's a there's a i think an sue the federal government when they don't get their social security the same is true of medicare one hundred percent federally run it ministered program beneficiaries and providers alike would sue medicare it made sense to extend the four to and do all the time sue the state government so there was every reason for congress in one hundred and sixty five dollars to put medicare in the same bucket is another one hundred percent federally run program social security and to put medicaid in a few questions if we were to agree that we have jurisdiction over the medicaid act claims then just to be clear your position would be that  agreed with you i'm not saying that we do that there is jurisdiction over the medicaid act claims we could either ourselves in the st instance form that review or or a man to the district court nurses certainly with respect to this is an extended service and specifically authorizes a variety of other professions without mentioning nurses or complaint responses why doesn't that suggest that there are in fact two distinct and and really not overlapping requirements that apply in different areas had before it the status quo where there was no requirement discretion was brought to the states a house recommendation that all surveys include registered nurses and a senate amendment that would do what the government argues here limit register nurses to those annual survey and the conference adopted the house language to require nurses on all the surveys so this would be a reversal of that as to the best of the direct conflict that the government sides with irreconcilable and just permissive and it could could include appropriate health care professionals why is there no conflict three reasons one it does not say there can't be a registered nurse on certain lines in fact two it says appropriate health care professionals and a registered nurse is for a survey an appropriate health care professional and the rd reason is that the investigative team what's governed by g four is much broader than surveys the secretary's rule with forty two c f r forty eight triolet that explain wh complaint investigation needs to trigger a survey and it's only when a survey and a survey alone can determine whether deficiency exist in those cases this investigation team under g four would launch a survey and if the team didn't include registered nurses the standard member would include a registered nurse in the survey team extent with t twenty one ast year honors initial would be would ask the court to reach this decision  to as a subsection and at other times as a paragraph so given that why shouldn't we conclude that the phrase under this subsection is at least ambiguous because the supreme court in science rubin southwest general coons and an arab anti discrimination committee so five times over has explained that the stink which is that when a trauma is used without a further qualification something else and parent medical that follows it refers to all the section or hear the subsection to use the term the southwest general as the supreme court said in science the court can't quote cherry picked from the material covered by the statutory cross reference so this this isn't a case in which subsection is qualified and that interpretation again moreover is supported by the legislative history here in particular the legislative history of the conference committee level which is which is final yes your honor which is the law the case law and the administrative law again we're not complaining about what would have happened at the administrative level we know what would happen because in the record a joint appendix to sixty nine you have the results when al gone before the final rule contested a survey without a registered nurse and the highest administrative level the secretary said that question was irrelevant to determinations and it would be irrelevant relevant again if the ministry of level but so too according to the government and all the briefing to date that we've been able to find and every circuit that's reached this question it would be irrelevant to a determinations what the what the agency calls in the regulations initial discriminations to trigger a and l j hearing and a rule making it not an initial determination specific survey findings at their high enough level like an immediate jeopardy finding and specific and forstmann actions are the only things that can trigger the administrative review process i would note though that at the time of the appeal before the departmental appeals board where you have you know ninety five percent of the shooting we have a regulation that have failed because of medicare or regulation that one thousand because of medicaid which is what this bring down ryan cases were valid only the medicare statute made those regulations illegal in those cases even though you had a dual or medicaid only participant challenging and seven that circumstance us where you have two statutes that say the same quiet in this particular circumstance but what the supreme court said that what for five each means and how it should be interpreted the arising under clause it's where the standing and  arises under a particular act that's how you determine whether it's medicare or medicaid show and those in those those cases from the supreme court illinois council bringer and selfie had are more recent than even some of these later earlier decision applying that past would be and where a whole is a medicaid regulated home they would have standing to bring a medicaid challenging basis and to the extent they also are medicare own and are challenging can can use in this challenge to and and entirely on its own under the medicaid if it is your honor that's correct and  i i would note that the supreme court has gone so far to say that even if courts building it congress had a good presented with its would it would have wanted to adopt that approach and in the rosen supply so at the end of the day these policy argument as a matter of doctrine cannot take the court  some of those cases so those cases don't threaten the federal courts in the federal government in the same way in the medicaid program as they do in the medicare program which is another reason why congress may have included four or five agents of security good morning and may please the court christopher totally from the u s attorney's office on behalf of the government the district court correctly held that it lacked jurisdiction over plaintiff claims we've been discussing some of the reasons for that already during this argument the plaintiff here are duly participating facilities they participate in medicare and medicaid and as a result this challenge to h h s this final rule is subject to medicare act claim channeling provision statutory and regulatory bases for finding that the claim channelling provision applies here the medicare medicaid act impose common certification in quality of care or fire me to understand facilities there are very few differences between them and their limited really to kind of state pacific issues are important is where medicaid covers individuals who would not otherwise be covered by medicare moreover when the secretary find th certified facility isn't in compliance with any of these requirements its authority is to impose remedies under both the medicare and medicaid acts and the regulations provide that the appeals procedures for reviewing determinations by the secretary apply to both participation in the medicare program and the medicaid program are the same procedures for all of these reasons as well as for the policy reason that finding otherwise would allow duly participating facilities to essentially plead their way out of medicare act claim channeling provision it's proper and situation such as this where a claim is certainly not medicaid specific but is but is common to both medicare and medicaid brought by do we participate in facilities to find that the claims handling provision applies and once those provisions apply it's clear under illinois counsel and the michigan academy decision that that this was a situation where the plaintiffs were required to per spring that claim to the secretary before it could be brought in the district court there's the no review exception put simply doesn't apply because there is no there is no question that notwithstanding the plaintiff's ability to obtain the relief they seek at the administrative level once those administrative proceeding proceedings were completed they were free to come into district court at that point and make the arguments that they are attempting to make here so for all of those reasons the court should affirm the district court's judgment on grounds and for that reason not reach the merits if the court does reach them does reach the merits and determined that it would adjudicate those rather than sending it back to the district  court the final rule here is entitled to chevron deference the language of the statute and begin list at best and the interpretation set forth in the final rule is reasonable in light of the language of the statute and the statutes purpose judge park thank you so so i understand the medicaid act doesn't incorporate the claim channelling or the jurisdiction stripping provisions and so your argument i take it is that you're asking mr and her based on out of circuit case law based on essentially a policy consideration that the medicaid act should also in court these provisions is a fair it's it's more than just a policy consideration your honor it's inherent in the way the medicare and medicaid act interact with one another particularly with respect to do we participate in facilities the challenge here is to a final rule d that interprets and govern statute concerning surveys and investigations and those surveys and investigations aren't art split up into medicare and medicaid those are the statutes that are going to govern surveys and investigations for duly participating facilities and authorize the secretary to take action under both medicare and medicaid where there's a finding excuse me  and i guess i'm just trying to understand what specifically the basis is you're asking us to substitute our judgment for congress i respectfully your honor if the the  applicable statutes and regulation feared read a situation where you don't need to substitute judgement cathedral rock actually knowledge is that when you have a claim that was a pure medicaid claim or a pure state medicaid claim that the jurisdiction telling or that the clean channel provision in the medicare act wouldn't apply but but to the argument and undoubtedly the medicaid act doesn't have the same specific provisions but the argument is still grounded in the statute in so far as particularly for duly participating facilities there is no distinction between the medicare act and the medicaid act and what they what they require the ways in which the secretary of valuate compliance with those requirements and the ways in which the secretary can impose remedies or relief as a result of the violations of those requirements for that reason textual matter notwithstanding and the lack of the lack of similar language for four or five g and h if it's proper when you're talking about a duly participating syllabi and a claim  do you have can you address that your honor i to the extent that it could be that they're they're grounded in earlier versions of the medicaid act it's it seems unclear at best to me expressively not only grounds its holding in the policy consideration but also points to the statutory regulatory overlap of the medicare medicaid act as reasons why for duly participating understand with respect to the jurisdiction over medicare act claims if you're right that the illegal composition of a survey team is is and is not a basis for setting aside any of the penalties why would a reviewing court ever reach the issue and if it wouldn't just be purely advisory your honor i'd play this out if there were if there were a if there were penalties that that were imposed and and the nursing center then came into  court challenging those penalties certainly under under the at the administrative stage h h s has has suggested that the improper composition would not be sufficient ground they were to fly and if the district court were to find that as a matter of the plain language of the statute as plainest argued here that whenever you have an investigation there's a you need to have a registered nurse on it and that as a was an improper agency action to impose the penalties that were imposed you know without obviously prejudice thing whatever future hypothetical district court would do it would seem that that means more specifically and you give me your best authority supporting the notion that congress intended to delegate interpretation of this word subsection to h on the definition of the word subsection but but to the extent that that is relevant and we do think it's relevant i don't think it's really a matter of interpretation that it's just kind of plain from the face of the statute in the different ways in which it uses the term subsection and then with respect to g to use interchangeably subsection in paragraph that the language of the statute is simply some specific thing at all times but that here subsection is used different ways to refer to different parts of the hierarchy of the statute in such a way that it's not sufficient to say that the use of subsection in g two applies across the board to all of the components of some sections that's particularly true again because g four has different language about the composition of investigation team it allows for a level of flexibility in terms of the personnel that that too does not necessarily do and there's good reason for that and i guess this leads into chevron step two which is that when you're talking about a specific complaint that triggers an investigation that could be for a whole number of things both medical and non medical and what the states need is the flexibility to compose a team that's going to have the relevant expertise to carry out that investigation and that's what  jurisdiction over the medicaid act claims would you agree then we could review the regulation without reaching the issue of our jurisdiction of the medicare  if the court were to find jurisdiction i suspect yes your honor i don't think there would be any barrier to to to that inquiry under the medicaid thank you judge it would apply to the vast majority of nursing facilities i believe again that that would be correct but it would again it would it would apply to claims that can be said to arise under the medicare act if either rock itself acknowledges that at times there are overlap between the medicare act and the medicaid act and the obligations that they impose but there are instances where where medicaid particularly like state specific legal issues or you know concerning individuals who are covered by medicaid but not by necessarily you know sufficiently grounded in the intricacies of medicaid to know when those type of claims later ice but that sort of a problem because much of this it seems to me  rules and obligations imposed by state or that deal with individuals who are covered by medicaid but are not covered by medicare and those would be those would be situations where a claim it would be even even with a duly participating facility i think that the outcome there would be that that you're talking about a medically claim that's clearly not what's happening here because we're talking about statutes governing surveys  investigations that that are applicable to both medicare and medicaid and that authorize the secretary to take actions under both medicare and medicaid and you heard  circumstances what what might make it difficult in terms of individual claims and this is kind of i guess where your hypothetical crosses paths with the situation here is that again when when when the secretary undertakes surveys for investigates certain complaints those those arise under both medicare and medicaid and they authorize the secretary to take action to remedy the problem and deficiencies under both medicare and well if you have a nursing facility let's say it's just five percent of the n purely medicaid filippi they're not governed by the medicare so i i don't see what the basis would be for for klein the claim channelling provisions there but if it's a duly participating f going to be investigated and evaluated by the secretary under both statutes and that are subject to final determinations of the secretary basis for any rule other than the one we propose for the medicaid act because asking questions about whether facilities are duly eligible whether the statutory denecke or predominant are are questions that are on include in the statutory medicaid covers the entire long term stay finally keep in mind that there is not a parade of horribles that under the medicaid challenge we're only talking about will making administrative exhaustion will continue to apply as p and finally just to put this into context we're living in a pandemic and it's more important now than ever st nurses to be on survey as the avalon case illustrates without registered nurses assessing whether a home is compliant or finding the fault negative  like there was with the burn in the avalon case poses real risks they are the corrective action the remedy was worse than the diseases they l j found and changed to ninety two dollars of the joint appendix it was counterproductive and cause the residents to suffer even worse if that happens today that's why congress held the government to the same professionalism standards as the homes to have registered nurses and the final rule directly contradicts  that is relevant only to the medicare act illinois counsel argument again if that if that is true it should be part of the holding so that actually could be set aside that has not been the government's position today that we cite the government's position  cause of action this would be a change in circuit excuse me in law throughout the country and in the government's position it would in effect the medicaid act challenge this is no different than illinois counsel where the supreme court said the medicare act honor and most what that means is the initial determination that a reviewable like survey results are subject to normal procedures of finality rightness exhaustion by going to an  alternate holding before an illinois counsel was reviewed by the supreme court and then reaffirmed that position at the th shirk it upon a new man from the alternate that's correct r