john i think that that portion of the question is one of the reasons that the board could have you that is one of the reasons clarion was saying that the regulation was invalid it's just a confusing lever in question and if your honor disagrees with you know our reading of what we think the board  doing then we're prepared to move on to the merits issue fair but we don't think that a line of clothes is the argument that we're making here which is just that argument their pricing now is in a district where it's different than what we think the board granted thought it was  line and if you look at you know what the board said it was doing and had a thirty two the board said in this case the provider is challenging the validity of forty two c f r for one two point eight four eight three questions one two one four  didn't raise a challenge to the instructions before the board we're saying that the we don't think the board thought they were we have a different question i'm asking you from the papers or file before the board you think they fail to raise the entire issue that they're raising before us before the board i think that they phrase the question in a confusing way i mean they do in some of the papers definitely make some arguments to what they're making here our point is just that you know after a line of this court can review the was right or wrong just that we we think that back on it doesn't foreclose argument that what they're pressing now is different than what the board got it was graining it's very judicial review on but as i said we're we're prepared to turn to the merits of the case and i think  forth the agency's instructions to contractors as to when the agency will likely exercise its discretionary power to conduct reconciliation in the face of the limited resources that make our contractors have to do so and it's similar to for example if the speed limit is twenty five miles an hour the police might not give tickets when someone's going to six miles an hour and that might be the police department's policy but that doesn't mean that that policy is actually changing the legal standard you know someone who's driving twenty six miles an hour is still violating the law and the fact that they don't get a ticket doesn't change that and we think that that analogy is out here because all the instructions are doing is telling contractors when to come to the or explain when a hospital isn't titled this there is the ratio right there that is that what you're saying the legal standard is under the red because the manual is the is the document that says force the so prior to two thousand and three they were final when they were made after two thousand and three they weren't instead they're just tentative payments that like other additional payments on these bills received are subject to adjustment during the cost report settlement process and then when you combine that the fact that now all of those payments are not final with section forty two c f r four one twelve point eight four i for now provision explained how reconciliation will be factored in doesn't have any limits on when the agency can conduct reconciliation so we think that the combination of those two you know regulatory actions subjected all outlier payments to reconciliation and this is also clear in the preamble to the role where the agency repeatedly stated that they were adopting the rule to subject our payments to reconciliation right during the seven year period between the regulation and the manual it looks like from the record it was  mess either c m s didn't have the staff or didn't have the mechanics or for some reason and then the manual was finally created and that set the criteria for the school or meteors and so forth i just i mean to use your speed limit it would be as if the regulations said we are going to impose a speed limit and then seven years later so the speed limit is memoranda come to contractors and this is explained in our brief that set forth the very same criteria that are contained in the twenty ten year or so this criteria were in place throughout the entire period that we're talking about that you mention from two thousand and three up until two thousand and earth program instructions to get it to go hundred years but during that period what c m s hadn't yet developed was a way i'm sort of computer software a way for the contractors to conduct reconciliation without affecting all of the other payment numbers that they were calculating without recalculating everything and so it wasn't until two thousand and ten that they have the ability the software ability to do that and so that's why there was a delay in terms of when the agency actually started approving  reconciliation and but payments were held open during that entire period so that once the software was eventually developed they could be they could be reconciled and the second point i wanted to make is just about the speeding analogy perhaps another analogy would be stealing or shoplifting it's always illegal but if someone steals a pack of gum it's very unlikely that there would be prosecuted for stealing but that doesn't mean that it's any less illegal and  know that that's similar to here where all outlier payments are subject to reconciliation but the fact that the agency has said it's only going to use it's likely only going to use contractors limited resources when the inaccuracy is of such a magnitude that it's worth doing so that that's really an important policy and it's not a change to the legal standard and again either way the criteria they don't require the contractors to conduct reconciliation in any case they explicitly in the manual provision preserve the agency's discretion both to approve reconciliation when the criteria are met and they allow for contractors to request reconciliation even when the criteria are not  now that's correct they they find just the contractors and all they were are the contractors to do is to ask for permission to conduct reconciliation and when the criteria are met they allow the contractors to still request reconciliation can i s fine understanding your position correctly and if you could just follow along with that at each point the statue at thirteen ninety five w w a  actually establishes the actual ratios and such and that is forty two c f r four point one two e t a one little too little to roll it right because i don't have that one written down but decides whether any individual hospital is untitled or not entitled to an outlier patent cracker ok now your understanding of the regulation for one two point eight four is that starting from that date in two thousand and six the cost which is to be used is the cost report coinciding with the discharge  for the earlier right is that right ok and your understanding of the regulation in light of the statements in the notice of the regulation is that everybody is subject to guess right so so far all were on the same page ok now you have an enforcement policy to determine when we will look at the hospitals reports to see whether the earlier so report is too much higher too much different from that costs at the time of discharge right and that includes a bunch of things like that ten percent rule in the five hundred thousand dollar rule right that's right if using those as a screen for deciding to reconcile your contractor does reconcile those things fall away the ten percent is no longer relevant in deciding whether they're entitled to  numbers to the state very general phrases that right ok so what you are guard this is as ad and force from policy only if there's a large difference describing what large is between the earlier costs reports and the be the described as the final cost report are we going to bother with this one and if we do bother with this one they're going to use the most recent cos report that's how you see this right that's correct but again this is directed on i think contractors it doesn't find us as a starting point that at minimum a substantive legal standard is one that defies the scope of the hospital's rigo rights the payment and that is precisely what the two thousand things right here in the highest ask you this assuming everything i just said you agree with i i'm not i'm sure you don't but assuming that everything i said before you do agreement would you agree under those circumstances and notice and comment wasn't required not necessarily your order because i think the further step that needs to be done is that you have let's say in your hypothetical right you have enforcement plan but what is the substantive legal standard that is actually in the regulation that the secretary would actually be applied and there is no substantive legal standard would you say that regulation establishes who's in title to aa why are payments for the subsequent legislation regulation under my hypothetical which i want you to accept for this purpose says everybody is subject to reconciliation and under reconciliation the most recent cost a does require ok and that was done by no some comment so now the only question is which hospitals do we decide to look at why is that decision question i think i think everybody's on the same page so then the only question is whether of this regulation which was issued makes everybody subject and your argument has to rest totally on the words any eight we were going to provide specific criteria for identifying those hospitals subject to reconciliation so i think the premise is wrong right there was never an understanding or even a suggestion that they were going says the subject effective sixty days after the date of the publication of this rule correct outlier payments will become subject to adjust for correct and then further down though and this is in line with the comments writing it says we intended if you program instructions and will provide specific criteria for identifying those hospitals subject to reconciliation and so this i think is in keeping with the entire rule making what you had was comments raised after the notice of proposed proposed rule making that didn't mention any criteria or really talk about the scope of this program and these commenters wanted to know the scope and said well what's going to be the substantive legal standard they were asking for the secretary to setpoint in the rulemaking because this was one of the biggest issues in the whole making what is going to be the substantive legal standard and what the secretary did with that said we agree with these commenters we're not going to reconcile everything we're going to use on the limited basis so i think if we assume that that there really is no substantive legal standard out there then what is your position you're all in your position is your position that no hospitals under the current regulations yet yes your are bad but that's our bottom line ok so if the if the manual is taken away is your position that no hospital subject reconciliation is not your is it isn't it is that your position here is your position is that there should not be the ten percent rule five hundred thousand dollar rule and instead medicare should be able to reconcile whenever it wants to that your position five percent one percent zero percent hundred thousand dollars twenty five thousand dollars regardless that's what you would be left with if we did what you wanted well yes ye problem that you find here what happened in this case is they picked on you because you had a more than ten percent difference you're saying you would like them to be able to pick on you under any circumstances at any time for any reason well your honor we would still have standing in this case because we believe that the procedure in which they went about doing that was incorrect and i think we have a right to a proper procedure under the a p a and not only  that as the substance of legal rule and even if you want to go to the exceptions right we don't look at those sort of exceptions when tornadoes out or whatnot we look to the standard case that's what the general electric is all those and i think here the proof is in the putting we don't yet we don't only have one million dollars and we have a three thousand or so imagine to the united states attorney you sure he order to all the united states attorneys assistant u s attorneys we are not bringing any crack cases unless the more than fifty grams that's it you cannot you have no discretion do not bring any crack case up more than fifty dollars fifty grams when a crack dealer who has arrested for forty grams be able to claim that there was a non discretionary policy adopted by the u s attorney that required fifty grams and the a u s a violated forty grams of crack and the a usa in violation of a policy of the office that we're not going to arrest crack dealers unless they actually sell fifty gra would you be able to claim when you're charged under a law which says it's against the law to sell any amount of crack would you be able to say well they they violated their policy here their policy wasn't subject to notice and comment because it's not really a policy because it was binding and they made it binding on themselves no your order ok so how is this really different if we if you agreed that you can be subject to reconciliation at any point why which even though the regulation says any time it was clear that this was a big deal and that commenters wanted the secretary to discuss this in a rule making right and so you have a situation where  essentially the agency has retreated from the rule making and ducked these hard questions that were supposed to be part of the rating and us you know have to have that sort of forecast that even that they would make a future substantive judgment and directly up closer to the circumstance hospitals i don't know which particular medicare program it would be but the hospital can only charge for the actual cost of  so it's clearly in violation of the rule and medicare has announces look we can't find everybody but we're going to require our auditors to look for hospitals that charge more than one hundred dollars per side of oxygen because that's going to be more than our costs but we can't go after everybody would you be able to defend and so they come at you and they find out my god actually they're charging twice the cost would you be able to defend on the ground that the auditor's had a rule that bound the authors to only looking for more than one hundred dollars no your honor and why isn't different than this in this everybody or not going after everybody and i'm forcing against everybody but only five hundred thousand dollars people well you're i think it's the fact of discretion that right we're not saying we're not disagreeing that there is a caviar here the two thousand things are tyria that says subject to the approval and we would dispute the nature of that discretion is being informed or sort of for discretion but even assuming that were the case you still i think would have a situation here where they have limited that discretion in a way that is substantive this is the piteous case i think this is what this court has called the classic case where you have the parole board issuing criteria right that are expressed be subject to broad statutory authority on the role decisions and yet the court said very clearly that the narrowing of that discretion in a particular way in a way that looks finding and is binding in fact will be substantive in nature so it can't just be the fact that there could be sort thank you your honor i think the key point here is that the main your criteria issued to contractors do not change the legal standard that's at issue governing hospitals right to payments and i think it  council opposing counsel agreed that if the two thousand three regulations subjects all our payments to reconciliation the notice and comment wasn't required and i think they also agreed that that is what the two thousand and three regulation