nine there wasn't an ambiguity in the regulations text it was very clear that regulations written that they cost report with ace your start of january one two thousand and eight was still within the transitional period a three year transitional period for a blend of payments that been established and the regulation doesn't say it wants to twice i mean as corrected in two thousand are you talking about what's in the code of federal regulations at the time what was in the federal register both with for cost reports except as provided paragraph c or cos reporting periods beginning on or after generally one dollar of two thousand and five through january one of two thousand and eight so it's ones and then with respect to the rd transitional year which is what we're in here subparagraph three there says again the cost reporting periods beginning on or after january one of those seven and on or before january one of the late so the regulation the july thing it's an interesting issue  finding it it's by january one hundred and eight then you're within the well you're saying there's this one so there's this one day that has an overlap where you're saying basically the hospital can choose whether one wants to submit doesn't want one hundred percent or the seventy and not you know not february th if that's when your cost record runs judge i don't know other than to say that it ends up i mean that's the ambiguity that's been seized upon and i'd suggest that as a practical matter it really doesn't end up being an ambiguity because as we as greenbrier experienced there when they originally said they submitted the cost report and they were told of course from the prior year was in their pick that they had wanted to change their fiscal year and so the it st with january one hundred and eight and that's when it got rejected because of this they tried to submit it for december thirty one of the seven and the computer wouldn't take it because as what you can't you can't get paid twice for the same day so it's this is not i mean for all the the charge in the charts in the federal register for years showing differently well there are but let me it seems to me your argument that this is an ambiguous in your favor turns on the fact that look for that overlapping date it on its face let you apply to both and that should be viewed to allow you to make the option the hospital to make the option of whether you want to go for the one hundred percent of the seventy five percent why what in the regulations says you get to decide versus the government i mean i judge are you saying you should be read to say you get the option why can't why should it be read to say the government gets the option well i judge all i can i mean again as i as i read it it says that you can do every if you pick that year if you have a cost reporting period beginning on or after the regulation but i guess my point is you're saying because there's two potential options for that single date that you get you your hospital gets to choose but why can't the government say we get to choose well i mean i think that the government i'm not c m s has said clearly when they're in terms of a clear expression of its policy is that you get three whether you want it or not though you can't come in and say look i just i'm just going to file for two of these transition years and i'm not going to say you get three or just that it depends on when you a reasonable result in this is just how public the fact the reg just doesn't work you have two different rules if you have a cost forty variable it starts on her one well there's actually but there's no evidence in this record that this didn't work judge it was working fine i mean paid the the rd year transition out that's what they'd applied for they didn't take this date to to do this this was the date that was given to them by the intermediary start start year three january one two thousand and eight if you go back in time and just endure the you're the  provider in this case what you would be presented with at that point you've got a regulation says hey if it's a must submit my rd your cost report january one two thousand and eight because that's the next date chronological date after my last one and they submit they try to submit that they they have a regulation that says that qualifies for the rd year period in fact it says twice that you're still within that timeframe and they submit it and then of course we get into this and with this claim well that was all of that was all just an error if in fact i mean if in fact this is that much of an error c m s is behavior and conduct there after doesn't seem to be consistent with that because of this they let the sit for year after year after year your honor was correct that they did have these other statements  in the preamble to regulations with the with the different dates of the reg it's interesting though that one of the statements that was sent out in the provider manual predates the two thousand and five correction so they are they they're putting out those dates and then in two thousand and five there coming out with something that they declare this is agency policy this is a correct expression of agency policy and it ends up with the january one two thousand and eight date so you know it's i think it's it's difficult to say that those are those are expressions of c m s policy when c m s is then in fact saying other things when a gauge is a formal rulemaking so that from the provider standpoint they're doing everything they can to comply with the rules and submit the reports is there but the cost reports of the dates that are consistent with the requirements and then they're told they come up with with these kind of issues i'd suggest that the scriveners everything your honor as i've as i appreciate the law in that certain result if it creates observe absurd consequences ultimately and again as i said there's there's no evidence of some evelyn's of claims where people are having a problem figuring out which year they fall into you know off of this interrupt being as it was with green brier computer driven they can't submit the same data under two cost reports so the fact that they they follow the regulations dates apply for a quote for the rd year transition period using a date that's expressed in the regulation i don't think that's the kind i don't think that rises to the level of any kind of absurdity and in fact it hasn't been suggested as an absurdity by c m s they just they claim years after the fact that it's a typo in the two thousand and eleven other grasshoppers or it's illegal or an constitutional the point though is there's no real indication that that's what they intended this doesn't the history of this suggests that it's more likely to be a script or judge i would say i don't know that that the history of this we don't really we don't really regulatory action that of on or after and then they repeated i mean it wasn't something they said not in fairness there's no question you're you can act you're absolutely right the law says what it says the question is given that it really just kind of falls apart if you  literally well to figure out something to do with i guess i mean again my only my only contest with that statement is that in there really is no evidence of this falling apart with anything in the woods the only provider of that appears pick a judge i mean it's does say it's by using the language it's in the regulation where they're saying on or before a date then and having a section that's says we're going to  have any reason why that would be the only day that has that overlap judge i don't i can't speak for c m s i mean you know what i'm in the if you're if you're me or the provider you're in a posture where you're just trying to comply with this record and so you see i'm and you and in this case you have the extra layer that's applied to that which is that my client wasn't picking these dates at random they were in fact when they once they announce that hey we'd like to change our fiscal year to be a year your theory is not that the person who wrote the regulations intended a dealer's choice rule your view is just naturally default that's what the capital of that we should provide or penalty on the government when they mess up the regulations is  that if you adopt a regulation this is last night if if c m s wanted to change this and they ultimately did they know how to say that they left this in place for sixty seven years however many years that they had this on the i think at this point when you have a regulation that's that in fact is clear on its face to the day we make we may argue that that leads to a leads to this interesting conundrum of what you're going to fall into but there's nothing there's nothing in the regulation that says that that's actually a problem which we can sit here and come up with ways we can imagine that could cause a problem if a b or c but there's no it's a problem of who gets to choose do you get to choose or does the government get to choose well i think that's that's the issue i mean i'll agree with except to the extent that i think that the real to ms or maybe argument is a judge show suggesting that it's the government's fault the client did you gospel gets to choose i mean i think there's a lot in this record that you could you can certainly say that the provider is kind of getting done to a little bit here i mean from a standpoint of they have a cost report with these periods that they were forced into those periods complied with the with the state regulations of the time and then they're after they've got the agency engaging in this apparently fairly vigorous effort to try to unwind that just for them including going the problem of adopting a rule that could only affect one d entity anywhere which is my client so i think that the agency i think the client that the provider in this case has a legitimate point of saying all right you said five minutes for a bottle we'll hear from the government going through a very thorough textual analysis applying all the relevant tools of construction and trying to figure out how to resolve this uncertainty in the regulation and we think that applying the rule of the scriveners error and by looking to the preambles that were contained in the federal  right the nd way to resolve it is if you don't think that you can resolve that ambiguity that way that the text must be read literally and what it says is that you can be paid under a three the blended payment or a for the entire federal and the administrator here said we will reimburse you that entire federal program amount and under review under the administrative procedure act that's not an arbitrary capricious decision that's not contrary to law under your backup theory effectively the government gets to choose but i think that that is what is explained in the two thousand and four original rule right is c m s said we want to have this three year transition period when we see comments on that and they got a lot of comments and one of them was from several hospitals and providers who said we want to be able to choose a reimbursement rates maybe we don't like this transition year you've set out we want the option to be able to just be paid soley under the federal program amount in c m s in the two thousand and four rule explained no we don't want that kind of complication added to the system we want a three year period no shorter no longer that revolves over on the specific dates that we've let out and we don't want to have hospitals have the option to make their own choices this is a system that we have and so in that two thousand and four rule they are honestly aligned uncertainty arises from is because now for a single day out of the entire year there's an overlap in every other day of the year if your cost reporting period starts on the day you get paid under one dollar reimbursement calculation and they're mutually exclusive there's no way that you can get a double reimbursement or we're not going to have no reimbursement if it's otherwise properly cemented right and so just for one day out of the year a three and a four both apply in that clearly is a scrivener's error is this court explained in heck versus tresh when it encountered something else that was a clear mistake on its face in that case it was a louisiana securities law that appeared to impose liability even if you exercise reasonable care and the court said that's a mistake let's look at the history of that and it discover the history was the louisiana legislature w another problem and deleted some language and introduced this year and the court said we can reasonably take account of that we can construe the statute to just be imposing a negligent standard even though read literally it doesn't do that but we understand that that's what the purpose of this was and we can account st it's a january st creating an overlap and you can account for that looking back at the original rule saying we don't want overlapping dates we want these to be mutually exclusive and then the correction saying we want to align this to the calendar year and applying those tools in the pr both the two thousand and five rule saying we don't have to change policy and every other preamble to the federal register updates what the pretty impairments were going to be each of which said for cos reporting years beginning on january one two thousand and eight you will be paid entirely under the federal party amount you can take those can textural clues and construe the regulation here to provide for reimbursement under the amount that the minister gave i'm happy to answer any questions with i think you have to ask if this is if this is an error that's what if that's the position c m s going to take then where was the state some statement to that effect and all of those years i grant you they had this language in the preamble of your what you don't see in any of those any of those itself on repeated basis the only times that they make an clear expression about what is our policy it is to it is to verify and lock in on the language it's in the regulation of it as they did in two thousand  these other occasions that they've that they've say things but they never want to say there's a problem in that regulation nor when they tell my client to use the december st end date for its nd year do they did they say oh and by the way this is going to this will knock you out of your rd year because we're going to we don't we're going to change what we think that regulation means i mean it's just it's ultimately i mean i hate to get up and say a bang to say gosh this is unfair but gosh this is unfair and for and for the regulated  that's trying to follow the rules and do what they're told to tell them that well you can't you can't rely on what's in that regulation because we later on six years seven years down the line somebody's going to come up and say well we think that was probably a one those tables while d they're in the preambles to regs are are part of the regulations themselves i mean the clients the client is is looking at the at the compiled group of regulations and the code of federal regulations is not likely to come across those the and if they did those things still don't have the force of law unlike the regulation itself so i have finally i would point out as the mentioned earlier that while c m s did make those statements they made that they also made those statements and then subsequent to that the adopted this language that we're fighting about here now so you know i don't know that it's that we can place the burden of that notice of information there is i can look at this the online listing they have of the open administrative actions there is no other entity that the inpatient psychiatric facility that has something like this going on by the don't know i don't know one way or the other i don't i don't know that other hospitals were in our position where we didn't we had to just that in fact my understanding was some hospitals prefer the per diem it's not that this will benefit one side or the other it depends on if you're a high or low cost hospital you're apparently high cost hospital so you'd rather have the cost reimbursement well i just how that's how it happened to work out of it again i mean the date was not of was not a matter of of our choosing i do think it's also relevant that when c m s made the two thousand and eleven makes this