twelve year old right correct and the womb making that takes effect in two thousand and fourteen what years are going to be affected by this decision just twenty twelve or up to twenty fourteen and what of those years are left that haven't been calculated i'm sure i see that there are three different categories thirst for two thousand and four which is go by the north east there is a mix between two thousand and four and two thousand and seven there was actually a regulatory change made in two thousand and four to remove the word convert from the regulation the agency did not begin to implement the regulatory change until much later and actually question here is whether the agency can re adopt the same medicare payment standard from the now vacated two thousand and four rule without notice and comment rule making for periods prior to the two thousand and thirteen prospect the only rule making that we requires notice and comment to change a substantive legal standard governing painted either by a rule requirement or statement of policy in addition the a p a requires notice and comment to depart from the pre two thousand and four regulation that was reinstated by the maker of the two thousand and four rule and that rule includes only those days cover and paid under the party for service program a category that does not include part of the medicare advantage plan days for any rule requirement or other statement of policy that establishes or change is a substantive legal standard governing payment when congress enacted that provision incorporated the good cause exception for notice history of course to the medicare act also supports the requirement of notice the comment here it was designed to fix the situation where the a p a was not requiring enough rule making congress wanted to broaden the  a rule requirement or a statement of policy and in it it's irrelevant how closely tied the standard is to statutory language or regulatory language in it of course in a case before the district court that actually did correct you could view something to substantive as being the opposite of procedural although i think there may be some situations where what the agency my concern was procedural would have the effect of the effect dealing with is a procedure used but it seems to me that it is a calculation a substantive standard beauty to figure out payment for services right and we think it's it's helpful to look at the northeast hospital case on the s which found that altering the map it calculating the fractions of the dish fractions that is changes the legal consequences of treating low income patients so we think at the very least that finding and northeast hospital would suggest that this is a substantive legal standard here they're the same and so on and so on and so i do think that it's you know this issue is increasingly important after bankers i think that there will be an increased focus in the medicare context on what this provision really means board determines that it's without the authority to decide that question and then subsequent to that decision the providers are hospitals are entitled to review all of the matters and controversy and not just the mean the way i read this provider shall have the right to obtain judicial review it doesn't say anything about the secretary correct the secretary does not have a right to judicial review of the decision during ordered the secretary here is saying don't even continue with this case where you until you know one two or three whatever it is comes before you and they there without standing as far as i can see that and you know it the congress has decision to grant to provide an expedited route to federal court is entirely consistent with its other decision to adopt special procedural protections to be guarding medicare policies there's an overall concern about hospitals ability to plan with very limited budgets and have certainty as to the rules of the road and in what's a massive medicare program which very minute changes can have a tremendous impact on hospitals and therefore their communities and their patient file first judicial review under thirteen ninety five zero zero they are seeking review of the words here its determination of that that this case was appropriate for expedited judicial review and it would include what normally it would include what was certified for expedited judicial review but if that determination is in error if there is no final decision on the merits actually your questions are showing why the poor at last are a fiction in this case and why the proper has to have this review is a lie no one on the green man because what would have happened in that situation is if the board didn't help that the board would've ruled one way or the other had the authority to then that's subject to review by the administrator and in this particular case you actually have an administrative decision that you can look at on the exact same issue but it there is a decision in this case however because it's the same plane as these and same plaintiff as in a line of one all of these plaintiffs in this case are also in a line no one and it's the same time period that you're on area if  the poor had decided that the administrator would have issued a decision just like we have in the record here and that would be but the providers would have the right to seek for a review of that decision and that's why the district court was right on the merits about here under this court's decision in northeast which actually stated that prior to two thousand and four secretary regulations did not address the treatment of part c so there was no legislative rule prior to two thousand and four and then you combine that with a line to one where the rule was heeded but this  reversed the district court order requiring the part c d s to be taken out and allowing the agency to look at the issue afresh and so we would submit that the administrators communication that's before having another a legislator for a while that would have the effect of the rule it's certainly the secretary and this i think is this word clearly and a lie no one agreed with that by saying that the very record the secretary could have done exactly the same thorough and just discussion of the issue as it did in a why no one had the board properly understood that it had authority to address the  be a rule of general applicability and it's going to apply to more than just plans i mean here what they're challenging applies only to them and only for one year and so that's not anything like of payment determination by the contractor and the agency determines the medicare fraction then the contractor determines the medicaid fraction they then determine whether the hospital is entitled to  potentially changes the substantive legal standard didn't even get to the issue of whether the agency was retroactively applying a rule that said hey you had an adjudication and the case and by it's nature is retroactive and so here this is all part of review and it's also technically is only binding on the parties to that education so it's different from a regulation which is but isn't that just like you know a reality you're not computing individualize accurate ask him his predicate decision well i think again i think even even assuming it were a rule which we don't think it  is it would be the classic tie it is so far from the kind of legislative rule that is it that is intended or one that would create a subset of the fact that i mean that the as we pointed out the legislative history the plaine rely on the medicare statute will requirements show that congress amend they have relied on the original bill which didn't have this language and courts have uniformly construed that subset of legal effect to create we see no reason for the possibility of the stay here yeah we just haven't crossed that bridge yet right and i and i don't think you do here where there is a posted calculation on a website which applies for one year one hospital is subject to review by the board by the administration are there it's feared it doesn't establish a substantive legal standard within the meaning of the medicare statute it's not a legislature you agree that once you make a decision at least for fiscal year as to what's going to happen litigation with the secretary the secretary actually computed special fractions from them that because of the ongoing litigation and they burned them they took the parts the days out and waited for the administrator to issue that's when the administrator issued that decision and a line of one at that point then he then then the parts he pleaded but they're these aren't intended following up on judge millette question the there is no question but that the fractions that were published on the website in two thousand and fourteen apply nationwide to all jewish hospitals and there are no exceptions under the regulation governing the dish name the contractors in the agency are required to use of fractions miss markets mentioned a special situation with respect to the lot of hospitals for two thousand and ten and eleven but that was that came up in the context of a discussion you know probably a settlement  one are legal and confirming that their that was in play before the provider reimbursement review board it's really a mystery what would happen if if the government's jurisdictional challenge were accepted because not even the government has had previously asserted that the board could invalidate that issuance of those fractions for procedural and invalidity and require the secretary to engage a notice and comment ruling  the board comprised of reimbursement experts including non boyer's simply just doesn't have that authority and this is the exact kind of situation that congress was intending to address when it adopted the expedited judicial review provision there was concern about providers having to spend years and years and years in administrative proceedings before the board when alternately the board and he would have the authority to decide the ultimate question if you win what do you envision happening from here well my hope would be that if we prevail the secretary would understand if we prevail on the idea that right there is a provision that allows retroactive rule making in very limited circumstances in the medicare act we did not believe that the agency could meet the requirements of that section so we don't believe that they could do this they could certainly try to go so th this matters correct yes how much money is involved twenty two thousand and four and two thousand and thirteen right for hundreds and hundreds of millions of dollars to hospitals and that would be one of the things that would need to be address i first or not asked if if it mattered whether there was a decision based on a two or a four and i actually think either way that that would at least get closer to solving the problem for the two thousand and four t hirteen two thousand and thirteen time raise that we're talking about that that two thousand and twelve is part of