routine service costs in excess of the cost limits are unreasonable and should not be a reimbursed by the federal government because this regulation has the effect of just placing the congressional determination the secretary has construed regulation narrowly improperly circumventing the judgment of congress the cost exceeding the cost limits are unreasonable and dust under secretary for perpetration providences distinct parts skilled nursing facility to any particular scenario just it for the wage rates in the area and then for a hospital based like we have in this case it's even higher and what what happens when there's initial underutilization is that when you're figuring out complicated regime where you have problems which often mean different things in different contexts i believe what exactly i mean this is this is what i think are gone and stuff from the courts acknowledges very complicated concepts we're talking about a shower here in the context of assigning a provider agreement from one legal entity to the next and in that context change in ownership has a different meaning than it does here if you look at section is it's not intended to mean the same thing and this is a problem that many law lay persons might have coming to the medicare system in one where you have terms which sound the same in different contexts that mean very different things circuit and the first circuit recognizes this in their opinion but we have contrary of course in the maryland general decision in the fourth circuit where unfortunately the court was not briefed on the question of ambiguity there was brief the question of textual ambiguity because they conceded the it with ability overregulation as a general question it was simply a policy based argument as to whether you should extend the definition from the operational best to this rather unique state bar situation maryland and experience in in managing the medicare system in the context they're given a high degree of deference trader than even chevron deference fact some rock deference so if you look and to the question of whether or not secretary's construction of ambiguity is a permissible the question is whether or not it's plainly inconsistent the regulation or indications of the secretary's intense at the time that regulation was promulgated that behind the regulations we briefly discuss government regulations and economic the store ssion in the market that assists providers with the problem of initial underutilization and in fact if you look in this case the utilization rate for the provider range from eighty four percent in its first year ninety two dating online this is not an underutilized provider this is a provider that has had a huge advantage and not having any competition for new beds because the total number of beds is capped now there's beds are kept in because there can be more facilities that shows a can be competition but that reasoning confuses the concept of supplier and supply economics if you've got x number of  the floor unit and its hospital and in doing so simply shifts these beds for one place to another the secretaries determined it would not be appropriate in the spirit of reasonable cost reimbursement therefore have affirmed the secretary's interpretation as i said before the fourth circuit has suggested that it might find that way but found itself bound by i believe an incomplete understanding of regulatory scheme the last point that calculating the limits of various situations where a provider might not be fairly compensated under kind of cover all the bases and it would be not only incorrect provider a new provider is an institution to us the plain meaning of the word provider is an institution which follows a physical facility that's the plain english meaning of that word your honour's and i think