one can argue that that is the issue but this but to get before we get to the question i guess to answer the question of whether he's required to be present we have to look first at the statute itself and then at the c f r the problem that i have with the way the secretary has handled the situation is the secretary is required to promulgating rules under i think it's section eight hundred seventy and there are those who went to the c f r basically but they developed this strange thing called the medicare carriers manual which purports to be nothing more than an explanation of what's in the code section and what's in the c f r and i know i've lost this argument i can't have lost this argument at the trial court and i lost this argument with the l j but i don't understand how i keep the it's really quick you want to take me to second medicare part b pays for services and supplies incident to a physician's professional services including drugs and biologicals that cannot be self administered if the services or supplies are of the type that are commonly furnished in a physician's office or clinic and are commonly furnished either without charge or included in the physicians bill we're not disputing that these services if they were performed in the p is performed in an office or a clinic and this is what we have these residents or it is and i thought it's not performed in the office where you were in our case it wasn't because dr givens was part of a group he doesn't have that's the point it doesn't have to be performed in the office it's only defining the word incidental to the purpose of that language is and he says if it's something that is commonly done incidental to a service in a clinic or an office it's covered here if there is no argument that under the under to start at the beginning dr given goes to the facility examines the patient determines the medical necessity for the procedure and then the first version if there is a prescription for the course of treatment for the course of treatment that the person definition of oversight of supervision in the in the dictionary i think oversight and supervision means that the doctor writes the script that the doctor orders the treatment that the doctor checks the treatment that the doctor pasta the therapist and overall exercise substantive on the first issue they do it to me again on the next issue and they add requirements on what without fault means so that if any publication anywhere that deals with the issue then automatically the physicians of fault it's a strict liability m was controlling and i believe that the c f r is for all four point five zero seven defines without fault and so there's five five two so my position is if the c f r has specific definitions of without fault how does the m it turns out my partner and mother happens to be an ex convalescent hospital administrator so she was the one that testified at the hearing and have to interpret these regulations i doubt seriously anything zation does on medicare billing for her own medicare  that it's unbelievable and then there are eighteen million codes for everything and what's undisputed in this case is that the building servers that use the correct pubs so the carrier trans america knew from day one for two and a half years that we were using  right codes and if it was so clear to everyone that we shouldn't have been doing it as the appeals council said how come trans america doesn't know that and what is trans america get a letter two and a half years later from him saying where there's a lot of respiratory therapy being paid out of conscience this is awful so i don't know i want to but i what i want to do to avoid the government's briefing is i want to stay away from the use of the word stoppel and focus on what do we use a totality of circumstances test which is what the secretary a four point five and five five to say if you look at all of the circumstances you don't look at one factor so i submit that under the waiver provisions if we establish that the physician acted reasonably under the circumstances trying to tell you if you look at the first page it talks about it has a title and it basically repeat four twenty four ten point one he sets and then it starts to add in things after that now the difficulty is is that well when i look at it the first time and again you know if you look at any statute in this court room when we're doing it as lawyers and judges everything is clear but you're talking about sitting in a you know you know medical practice running an office and looking and having a billing service looking at something which is the controlling regulation which is promulgated under eight hundred seventy and we can't cut past a let the coyote guard the chicken coop that's what i'm sorry but that's what we're doing we're saying you know what you if you're put your own regulations and that and if we consider the purpose of the underlying acts to provide medically necessary services to the poor and disabled people who otherwise aren't going to get them that seems to me i don't want to make it this and with tear jerking argument but that seems to need to be a relatively decent goal now the question is when you're trying to implement that goal there's the agency have unfettered discretion to tell the physician which patient will get services which missions won't get services and under what circumstances and i have to take the answer that's no because sure i'm saying that when the agency looks to the statute it's allowed to interpret it but the interpretation has to be rational it cannot be adding in a precondition that takes away a service that's what w parity but let me go back to the to the point i don't stand aside let's put it this way the doctor doesn't i don't know if i made this clear the doctor didn't bill for his time for rendering these services whether it's looking at the charts talking to standing over the therapist and if you look at the cme the doctor can be anywhere in the building which shows you that the doctors physical presence isn't necessary the only presence that's necessary someone who can summon emergency  the home and take a picture and the printer thank you back to the doctor's office he does the analysis and he advised the order orthopedic surgeon and yesterday the fracture and this and that you know are covered not covered your honor i think hypotheticals are particularly dangerous in this type of case and he said that i'll do the best i can while i'm looking at the same regulations that you are and that the government has and you've applied them in one case and i've just made a little different case but the doctor was not present when that picture was taken the picture is necessary that the service is brought back in there some cost built in for doing it in the truck rather than calling an ambulance the higher the bring the patient from the old folks home to the coverage right i'm not even sure under your hypothetical if the x ray would be something incident to the physician services i e something customarily charge service you can't read an x ray until he gets on your right your honor but something customarily for example provided without charge i don't know i can't sit still here and confidently say that your hypothetical is equivalent to the situation we have here where there's no controversy that indeed these rest which were a therapy services are incident to the physician services and that's the only possible way that they could be paid be paid for so i'm not sure that that that would not be as i stand here that that would not be covered under some some other provision that is not at issue in this case and i'm not enough of an expert to say that it wouldn't be hard with this person i'm not sure that it would i'm not sure that it would i'm not sure that it then i've i've thought about that because you're bringing in the situation of an emergency in this case we have a doctor who apparently makes the rounds to board and care facilities so let's say problem i guess your honor again i have to say i think we're assuming in the hypothetical that the normal process that the normal practice of the doctor when he gets a call from the bed and care facility that someone broken a bone would be not to go and seek but rather to send a truck and to the extent that to send a truck is the normal practice perhaps it would not be covered i don't know but there are so many variables i think in the hypothetical that that that don't bear on this case and there's one that does and i understand the point that the court's trying to make but i can't be confident that those other variables wouldn't be consulted and wouldn't was resolve the situation i would expect that you would know more about the regulations the instructions in the statute than the treating physician and if you can't make a decision in this case about billing and medicare patients how in the world expect the backer to make a decision about whether to bil when in essence what they both have done is the same thing they treated patients in a manner that was necessary and proper and effective in taking care of a medical condition i think this you know whether something therapy who builds your honor and that situation i'm not sure i'm not sure for example the earlier question when a doctor refers a patient to another doctor i'm not sure whether that second doctor would there are other provisions whereby the doctor need not be there for example if if the patient is in an acute care facility the doctor need not be there but if but if it's routinely performed doctor services by signing a patient to a therapy clinic which then builds for the therapy services it provides that's the difference in this case and the question i take is whether he can bill for services rendered that don't qualify under the regulation under the manual that is in this present or in a place where you are readily available i think that's correct i think the services are bill being billed under his hat so to speak and it isn't that i gnat context that we have to view these regulations and it may not be the only way necessarily that the patients can receive such services i need to come in your honor very quickly i mean under under his auspices known of this restriction on the type of building he was doing but let but it's important to note when we when we talk about these provisions that some of them go to individuals individual beneficiaries under the act and some of them go to providers to choose doctors give them and they will generally designate which ones they apply so if the definition of without fault that dr  proposes that it be applicable to him in term in terms of determining whether he was without fault in submitting these billings and therefore if the billing if the restriction on billing was correct nonetheless he's entitled to a waiver because he was without fault as a supply with this section begins rebate i'm fault as used and without fault applies only to the individual that means this only applies to beneficiaries who are overpaid not to providers and if you'll know he's a provider and that's a distinction that's made not only in twenty c f r but in the statute itself which talks about waiver which is consideration in the terminal whether someone is without fault will include the individual's intelligence their educational level physical and mental impairments and so forth we're talking about christians and perhaps you what the correct amount is paid under this title to a provider of services that is that is the that is the touchstone for the without fault waiver so you can apply and interpret ing that you can imply apply and see a farkas asian that applies only to beneficiaries and not to providers and i think that's a very very clear point that was emphasized by the seventh circuit in knew of this restriction so therefore how could dr peter than i think our brief makes the point i'd like to reiterate it that the way the tulsa secure the way the medicare system works the e person these providers send out build a lot of bills and that they are paid without question initially that's the only way that the providers who provide these important services can maintain their cash flow and that's been acknowledged by the courts including the one circuit in the t l c hospital in case so that future i mean for them a while to catch up with them well if it did your he and this is i think crucial to his case that he has an innovative process here something that's new he's providing services that i think even he would need are commonly provided in a physician's office outside that setting and that's what makes this innovative he's taking this on the road so to speak to these boarding care facilities now under that circumstance if you yourself know and even have some degree of pride in the fact that you're doing something new and innovative would you not want to be more the check in even more carefully that this is going to be pay when you're committing according to him a great a great percentage of your practice to this service and by the way these are services again these are services that are incident to a physician service it's it's almost as if the detail is like you know you're asking for all the money back but to the extent that the doctor did go you know what you're taking away from the doctor is the salary of the purpose of the transportation for the therapist and the time spent with the patient by this there that's what you're taking away that's correct or not that's i don't i don't know how the dictate your honor that the the provider filled out the forms correctly the forms will indicate that they indicate you've got the record well your honor they indicate according to dr given they indicate that the services were provide line don't think it's an arbitrary or a harsh law providers difficult to figure out what these things provide for your own are the touchstone of reasonable and necessary services in this case is whether the doctor was there and whether he performed the services and therefore whether he can be reimbursed for his services in this case that you do have to dump the law states that your honor then i think it would ring a bell any providers head if he wasn't there and he was billing under his medicare provider number for services i think that would be something that would be something that he would would would rate would ring a bell on his head and i think in this case it's because the bell would ring twice because he's claiming this is not the way it's normally done this is not the way it's normally done extended my did is analogous to the unauthorized practice of lot of the extent your billing as a lawyer for your time in essence under your billing number for someone else to serve as i don't know i mean i think i understand the court hypothetical but i'm not sure if the only not well we we did briefly just enough to say no thank you well your honor because that's the kind of belief we were talking about your honor i understand where the court's coming from appreciate that we think we have thought that the cages is pretty clear cut in that the manual is clear we think that the services are not covered you think that would be the better way to