minutes per side which fifteen minutes for the plaintiff and fifteen minutes will be shared by the defendant and mr her on  good morning your honor is my name is jeff heron i'm here representing mark is an accused person a representative of his father's estate i have been asked to reserve three minutes for rebuttal time before i begin i suppose it's too late at this point to delegate to a law student so so so all this all just take a shot at this this case is one we believe a first impression we don't know of another case that's passed and decided to question whether or not i mean could bring on a federal tort claims act yes whether a matter of whether a medicare  vantage organization is an employee of the united states for purposes of that statute and there is a well defined body of law following globe that talks about what test one applies in reaching the on day to day physical control and it seems from our perspective that with a public program of the size and scope of medicare and with the advent of the h m o model that the notion of direct physical control on a day to day basis is hardly apt we've certainly argued in our brief that the nature of the regulations affecting this organization the nature of the contract in the contract requirements result in control above and beyond what tip one typically finds would we not in effect take the state court i don't believe what we're asking the court to do to find the go to fine i'm happy to be an employee and not an independent contractor and such i don't believe that that necessarily nor universally involves cases where the dispute is going to be whether or not the care itself breached a standard of care in other words i think there will be a separate role and continue to be a separate will for state law medical malpractise cases the facts in this case involve the approval of a procedure under very unusual circumstances that resulted in an experimental device not even in clinical trials yet being inserted into the head of a man even if there was not medicare i mean that the procedure up there plaintiffs disagree with that insertion assertion and the reliance is on the marketplace to be honest with you had mr been a younger man had he been insured by blue cross or someone would have sought approval for this procedure and a private insurer would have said no we're not paying for this device it's available only in limited humanitarian circumstances you don't have that this this won't occur it would not have in fact it would not have occurred under a more traditional model of the medicare part a or b because they're there to the market the market would have said we can't get paid it's only in the physicians or some pharmaceutical house or somebody developed this procedure and they tried it up he was a wrong person a trial ok he didn't need that right not only did he not need it but it should have been tried on anyone other than  limited humanitarian exceptions but the fact that medicare approved is your link under the fellow claims that right that's correct so if he didn't have in there would be a federal tort claim right it's only because it is going to be paid for by a medical insurance program correct ok let me ask you a question that i ask guardedly because it does take us our focus away from the federal tort claims sort of standing question but i but i'm just curious about this let's assume that we were to say there that the there was sufficient control to make the happen or whatever this is a government employee under the federal tort claims act all that really is doing is is incorporating state tort law and applying it to the government so we're where was the duty here that the people that approve the payment of these things were where does that give rise to a duty to to the patient that seems to me comes from the doctor not the medical plan is or do you have a case that says that there would be liability if you if you could get under the federal t both the pay or and the doctor and the hospital all of those every one of the process frankly in the case of experimental devices is subject to regulatory control by institutional review boards i don't have a case but i would submit that this would also be a case of first impression as to whether you could even win on liability either the duty to warn or the the simple fact of having a prove the claim paying for the procedure  not access a program called interpol which actually if you enter the procedure would have popped up data saying this is not approved it shouldn't happen so we have what we think is a duty and we think we just have this duty then are you are you ending up transforming part see into what essentially what we have with party and part b which is exactly seems to me it's exactly contrary to what congress was trying to do when they created these medical advantage programs under party they're trying what they're trying to offload the risk to somebody else i think they're trying to offload budgeting rest to be certain by seeking a per patient monthly flat fee with certain adjustments for the risk of the population being served and the population where this is the area where service be provided they were certainly seeking to offload financial risk and see but they're also controlling through the market the health care decisions because a hospital and the doctor who's not going to get paid for a procedure under part a or b is unlikely to perform it knowing that payment approval will not be forthcoming but part c does is can bind those behind a capitated fee wall and suddenly the most of the world are are making not only financial decisions but in a very real way medical care decisions when they're proving things like this this particular procedure why does that make them not an independent contractor but an employee of the federal government i think the nature of the control in the contract in the regulations is designed to speak to choice in a way that more typically regulations and contracts don't more typically under under the under the statute we're dealing with someone who's maintaining a building for a government or perhaps operating to sillett even a prison or a jail but those programs don't involve choice by consumers and by millions of consumers who are now being told you have option a and you have option b behind option b is a whole range of risks and i think that because that choice is being made because participants have the right to make a choice the government has inserted itself both by contract and by regulation in a more substantial in a more meaningful way particularly when it comes to marketing you know marketing which prison you're going to go to you're sentenced to a prison you know market come to our courthouse g s a has contracted with someone to polish the floors but something is personal as your health care choice and medicare or the government is taking greater control with those marketing materials and is one of our arguments that listen if the government means this business that national care care directives are a floor not a ceiling and that somehow experimental care is this bone of service that part c providers can provide if they want to there ought to be some warning about that the communication between parts the providers directly supervised by the government is aimed at providing information about what does it mean if you choose to go part see if you enter door number two like there's less supervision if heard see says to the provider here's how many dollars per patient per year that we're giving you and you can decide what kind of care you want to give to the people contrasting to partake in b there is not control prior to the delivery of services so there is and that and this is there is more control because of the nature of marketing and other things that you put the party provider in advance of and insert the medicare authority in advance of the receipt of care that doesn't happen on the party in part b right and so we would argue the opposite looking only at the purse strings  and saying that party m p providers are contractors within saying because there's a capitaine if he makes a part c provider somehow less controlled it into it it seems to get it backwards to me that  we are now in trusting folks at the medicare provider to make critical care decisions in critical care authorization and they have incentive to say this maybe it's because criminal but we'll try it because we want our provider to get the experience to be able to participate in a trial i would try because it's good morning abbie right on behalf of the united states i'm planning to use ten minutes of time and then counsel from have this plane i'm planning to use ten minutes of time and then counsel for half is planning to use five minutes of time so plaintive claims here that  private insurance company is liable in tort for its decision to agree ahead of time to pay for a medical procedure setting aside the plaintiffs can point to no case law supporting a tort liability in any event the united states played no role in that pre authorization or the underlying medical determination as the disregard correctly held happy here was a contractor of the united states part c medicare advantage organizations operate as contractors of the united states not as their agents or employees the united states pays a monthly payment for each in rowley the parts the medicare advantage organization is operated like an insurance plan offering through your employer or the individual market  they put together a package of benefits they make benefits determinations you the owner only selects that program because they want to get all their medicare in one package and have the advantages that that one package  issue is sovereign immunity under the f t c is that jurisdictional question we believe that it is your honor this court has held in other sovereign immunity contacts that that's a jurisdictional question but are we wrong is before the supreme court this term we do think that the question of the waiver of many is jurisdictional especially in the thirteen forty six context because the language of thirty forty six says it's a grant of exclusive jurisdiction to the district courts to hear claims against employees of the government and so in a construing that grant of subject matter jurisdiction to the district courts you've got to figure out who an employee of the government is so we do think it's jurisdictional is that is possibly part of the problem in our language in some of these opinions not of course judge moore's but others obviously we have the jurisdiction is it seems to me it's obvious we have jurisdiction to determine whether you can proceed under the federal tort claims that threshold question that's right whether there is a cause of action because it's barred by the discretionary function exemption or exhaustion or whatever it is that's a different that's a different question but it seems to me we we conflate those and we lump them in together i think i think that's right i think it usually doesn't matter because it only really comes up if you're if you're asking questions about equitable tolling you're asking questions about waiver and so most of the cases where i think courts have not really bothered with the question is because it doesn't it doesn't really matter in the district court you know it might be different between twenty one and twenty six but for all practical purposes you know that's that's not going to win or lose the case so i think that's why courts it's an interesting doctrinal question the articles written on it the government's position is that it is jurisdictional and that's the government's position across the board in other words the solicitor general would take that position in that case in the supreme exactly say in that but i can say that in the circuit titian's filed over the summer and in the spring that was the position that we took but your argument here i thought in the briefs which you haven't mentioned this morning is that they they failed to plead a direct cause of action against the united states if you're here defending the united states i am and so if if we lose on the agent independent contractor we're on the we would be on the hook i mean we if you get to the other problem in theory we c be on hook for what happened in my care less could be my next question because obviously the government has i assume has an interest in what we hold with respect to happen because we're we find that half could be sued under the federal tort claims act that's clearly going to affect i would assume that the financial dynamics between the government and these haps right and i want to be clear that we think there are a number of steps forward gets a liability even if you were to disagree with us on the agent independent contractor question but were you always on the road the united states would be the party interest under that dca so yes we very much have an interest in that question and then on the direct negligence claim is if we were to find if we were to find that they could sue the health allegiance plan under the federal tort claims act would you then step in in the place of the half under the westfall act they would drop out you'd be holding if they were employees of the government d objections that were filed focused solely on that first issue by curious liability agent contractor issue so we think those are way to this court would not need to reach reach those questions if if there  and yes this is the first time i stand here that if i lose someone else pays the government to happen is an independent insurance company organized under the laws of the state of michigan doing business in the state of michigan who entered into a contract with the center for medicaid services provide medicare advantage organization the program it is not medicare part a and b it is the other animal part c part c is a program adopted by congress authorizing c m s to go out there and contract with private insurance companies to see if we can organize a better way of delivering medicare services people opt into this program people bring new the program people pay a premium to the program they pay it to happen happy is an independent contractor happens a contract with the government and let's hope they do because you wouldn't want tax dollars going out the door with no contract but this contract is pretty clear it says that the government cannot tell who to do business with it can't tell them to hire a doctor it can't tell them to make a hospital part of its participants it can't tell them to provide certain nursing home coverages  kids do that on its own so don't do the government participate in deciding that this particular procedure would be used on mr cynic no your honor happens to insurance company  this is a little peculiar because this gentleman went out of network for an emergency he went to st joseph hospital as opposed to the happy and titties but in the course of doing business they called and said they're going to do a stenting procedure it was approved apparently i'm not i are to buy half but there was no communication with the government the stenting procedure unfortunately resulted in misters the neck is demise it's unfortunate happen so are there any medical questions covered questions or procedural questions were happy ever contacts the government which i assume would and bears all of the risk of the enterprise so no it is required to give medicare benefits because that's what it's contracted to do but in addition to those benefits it can give you get a call from the medical people and we want to do stent procedure on meters or whatever that decision is made by some underwriter or somebody is it your company saying that there wouldn't be a cardiologist that they could refer to if they wanted to in the course of their their business model to the question is asked of you if we do this procedure at st joe or where or university of michigan bill we're going to do i don't know if they were they were informed precisely is the details of the stenting procedure but they approved a stenting procedure and that's what happened ok and  it pays for the care of the per capita amount it gets it from the government each month that in some some procedure then if you cover the procedure than some other some billing to get federal funds to reimburse you know your honor what we get every month is the you have members in your it's this is an h m o model you have members and the government pays you x amount of money per month for the members any other crypto could have decide it's getting a certain amount of money from the government could have decided that it's going to spend a whole lot of money on one particular patient who has a drug problem and then deny coverage kind of coverage and haps is you're going to get these benefits it happens out of money oh well they made a bad business decision they're on the hook for it themselves they have to like blue cross has to say you know just because john gets a tonsilectomy pete doesn't of money no you have to chew perform according to your contract with your consumer and then you have a country with a government who is giving a set amount of money every month but the government doesn't tell you who have to provide was so you try to negotiate contracts with physicians and hospitals and nursing homes so that you get the best possible rate when you're paying but the government doesn't cannot by statute in regulation tell you who to contract with or what price you have to pay that's a business decision hat makes so that there is government involvement in the sense that by entering into a contract with you folks to provide the benefits covered by medicare those medicare benefits have been determined by the government correct you have to do it we have to we have to supply medicare benefits and we are even having said that let's assume i don't know what you call a stenting procedure but some sort of cardiology procedure do the regulations say for example whether you get this stent or that stander do they get into that detail do you know no what m sharon was referencing was were national coverage determinations which apparently made a determination that this boston scientific wingspan stent was not going to be a medicaid medicare covered benefit except in certain circumstances this gentleman did get that stent and cap was billed for the stent the hospital physicians were paid for their services that is i think where where he's saying is we gave more than medicare required and we should not have been allowed to do that that's a state tort claim your honor just did happen violate its contract with its own insured i don't think it did but that's not a federal question doesn't make half a federal contractor we're beholden to all sorts of federal regulations you can't operate an insurance company you can't operate a hospital you can't go into contracts with physicians and hospitals and nursing homes to provide benefits without complying with a lot of federal regulations but it is clear that they've divided of the regulations under  the medicaid services between those that are applicable to the fiscal intermediaries and those other ones that are applicable to the managed care organizations and the ones who managed care organizations say hold off if an independent contractor national coverage determinations are an important part of the total realm of benefits the secretary has determined to provide to medicare participants benefit determinations ultimately are the secretary's determination to repeatedly say the government can't tell us what to do well there are some things councils correct the government doesn't involve itself in which doctors are contract with but the government tells its citizens that if you participate in this program you're going to get certain benefits there is a floor you're going to get this and this and this and this covered and we're also going to tell those people who are providing health care under medicare there are some things you can't do there are some things that aren't covered or that you can only use in certain circumstances and that's what we're talking about here at acknowledges that they approved this procedure the documents in the record indicate they didn't go through the information system that screens that stuff to say that we are going to provide an experimental procedure without informed consent and violation of the national coverage and to say that was an extra benefit provided under the contract it seems cynical to me but would you be able to sue under the federal tort claims act if it were not an experimental procedure if it were a procedure outside a national coverage of terminations but suppose it's an appendectomy that goes bad would you be able to and everybody knows you do appendectomies if you have appendicitis and it's not going to cure itself so an appendec tomy is an improved procedure but but it goes bad in and would there be a federal tort claims act under the hypothetical federal tort claims act claim i think your hypothetical sho absence of any negligence by the government or its employee happen in this case because obviously routine decisions are approved on a daily basis and i don't think every routine health care decision necessarily elevates to a federal tort claim it is in the supervision it is in the contract relationship under part see where these determinations are being made in advance of care but the claim could be filed there would be jurisdiction under the federal tort claims act you're saying it's just that it wouldn't be a winning claim is that right am i putting words in your mouth that improperly i believe that is a correct analysis under that hypothetical jurisdiction would lie and it would be a jurisdictional question assuming that  cap on the fees which can't collect into you when i don't think the court needs to worry that a ruling in this case with experimental procedures is going to lead to a flood of lawyers thinking these are cases we want to bring that kind of back to where i was at the very beginning we're not talking about whether you can sue half presumably you have maybe one maybe lost i don't know we're talking about whether you can also sue the government by claiming that happens a government employee and use you just said a moment ago that that arises out of the government supervision or direction to happen so where was there any supervision in connection with this particular procedure was there any we do not assert that the government has agents on site every h m o engaged in day to day yes or no second guessing of coverage determinations the government's involvement was in the national coverage determination the you're going to contract with us if you're going to provide this been a fit to our citizens you're going to do so in accordance with our rules and regulations no have can then can exceed this that whatever party and part b cover without then triggering government liability for their decision if you take this to its logical conclusion not necessarily the eyeglass example the council offered of course that's a benefit it's an additional benefit you can provide it might incent people to use you as there are medicare providers but what you can't are those things which the government has said one should not do or should only do in limited circumstances it's not that it's an additional benefit there may very well be additional benefits that are appropriate and fine you do not give rise to liability but where the government has weighed in and says don't do not use the boston scientific wingspans stance and violates that then i think they are standing in the place of the government and they they didn't does rise to the level of employee it is a trick i saw by telling them not to do it and they do it you say they're supervising closely yes ok and what i also say and i just want to be clear i have another fifteen seconds is that we acknowledge the challenge that logue read strictly as meaning day to day control of the scene point not of whether or not one can be an employee of the government and we are suggesting that the nature of this program its breadth its scope and the nature of health care and health care delivery warrant an analysis beyond strictly whether or not there is day to day control thank you thank you for your argument the case will be submitted with the clerk of the next case please