today was joining us to be but he's doing it by the wonders of modern technology so judge tootle can you hear us good morning ok we can hear you so you'll be asking questions good morning how are you base medicare payment rate established by the secretary for rehabilitation facilities the core of legal question before the court is whether the statute on the ambiguously precludes review up looking at one of several discretionary adjustments to the base payment rates for other factors the answer is no for over it but the decade the secretary interpret interpreted the statute the way the hospital does to mean that only the unadjusted the prospect of payment in the secretary's prior interpretation the statutory taxed as well as the context of the statutory scheme so that the statute is at least reasonably susceptible to divergent interpretation of me and you again about rules of interpretation here and judicial proceedings and in city of arlington merchants and c c the supreme court held that when it comes to agencies determination of their own ministry of jurisdiction they can chevron deference and so what i'm trying to not relevant here because it involved agency interpretation of its substantive regulatory authority or jurisdiction as to the subject matter of what it have authority over not jurisdiction in the sense of administrative appeals or assuming judicial the methodology and data used in computing the prospective payment rates and also separately requires the publication of the the classification of weighting factors in if a classification and waiting factors were part of the prospect of payment you couldn't chance so that's a rule making the public in the federal register correct and so your position is if they announce in the federal register here's how we're going to do it and they announce and there are some come lately on lawful way of calculating you cannot challenge you said we just refuse or example to apply weighting factor we're just not going to do it and no one will be able to challenge that until they actually sent in a bill and decided it was worth fighting over th well in that case there would be an ability to challenge because the secretaries actually would be arguably the alter virus she said the secretary would not have decided that except in the what it means to be ultra vires from under your reading of the statute  far that is exactly what's proscribed the salish mean of the weighting factor is right in the classification system leading up to it and factors then if if when you get your bill and you have your dispute with a contractor all you're doing is challenging a categorical cross cutting judgment about how they're going to compute these grades as opposed to some sort of individualized state why isn't that just doing later when the bars as you put new really it sounds like you're saying whatever your challenges are just hold them in reserve until you've submitted your bill and haven't gotten the money you want and then you get to challenge the very thing they bothered to say established rules and here there was a rule saying that the live payment was to be calculated like the medicare just person share hospital or dish payment that applies to q care hospitals and they had said that in the federal register no i don't normally the live payments done afterwards because that's when the numbers are here because they have now this forward looking by the way course we won't have the numbers to actually give you the calculation till later but our intention is to dismiss we actually think the rule is just find out it as it is and want it applied properly in this case and the rule is that live follows deshon under dish the agency must follow the mandate in northeast hospital and we would like t either yes what would you challenge them what would be what does the judicial review parse what type of challenge to respect human rights at the federal register stage with therapy that would be right what kind of factors and the classification system be right i'm trying to figure out if the if the judicial mar is doing much practical work under your reading because if you look at the scheme wouldn't congress be saying it's not right for you to bring a challenge back to that stage anyhow you stage there could there could be a challenge to be the rule adopted by the secretary your question just to make sure i understand your question  when they do this federal register now yes and so that must be what congress cut off or if you are right yes the establishment of the of the listed items in j correct and so what i'm trying to figure out is what work if your position is the adjustments are separate from establishment of the three and saying that someone can challenge it just doesn't give an example of what congress is getting off when it said you can't challenge established well it's coming off chosen to separately list that aside from the prospect of rates under paragraph rate under plaintiff's reading perspective the rate means an adjusted rate but if you substitute unadjusted rate into that paragraph it simply doesn't make sense in the paragraph directs the secretary to determine the prospective payment rate which is the amount o hospital is paid per just charged patient you start with the average payment rate and you make the secretary makes five five categories of adjustments paragraph plainly precludes review the prospective payment rates to be was commonly used to the adjustment process right take what was established and then you do these other things and just and that adjusting process and figuring out what the final number is that's the determining he does this is say you can't challenge the establishment of the average unadjusted rate which is basically meaningless because no no one's going to challenge that and i mean maybe it means a front maybe maybe when it's going on  all of these challenges come up through that contractor board administrator process and so we would be cutting out nothing basically because everyone has an incentive to be a challenge to the federal register notice in advance and actually go into this hospital don't i mean i can't say they never do that they do sometimes do that when there are big rule changes that they don't like but on a sort of day to day your bread and butter challenge is to the amount that this example shows what you're getting paid  attempted to say i'm only challenging this part i'm only challenging the data use i'm not challenging the ultimate determination i think that here even if you read and determine the sadler's as different the hospital can challenge that determination with also challenging the establishment the way that the secretary determined to calculate the live adjustment and so i think even if you want to read those as different verbs in different directions i think what you have in effect was still a challenge to the establishment of those respective painters rates that's the amount of the hospital gets paid the hospital challenge here is to say we don't like how you calculated our live adjustment we want to be paid more per just charge patient and so i think it would discussion and of course the secretary couldn't create jurisdiction where congress had withdrawn it so i think it's not relevant to this court's to terminations of the scope of the judicial review bar that's before the court your green agencies don't using that verb for the piece makes the weighting factors make sense that is daryn the secretary you know groups of patients that are of similar cost to treat and comes up with factors and those are established and then they are applied to determine just when they're not challenging the data that the secretary use or not challenging anything with respect to that calculation they're really challenging how the secretary and contractors implementing the secretary's instructions calculate that low income framed their argument so in response to her questions i think for the health sciences can be a helpful case for the the idea that you can't sort of characterize your challenge to a sliver of something and thereby trying to avoid a rob religion  worry about the consequences of our no judicial review never touch us arguments so you yourself articulated as a captain on your stand your position here about how this actually works i don't think you can get away from it that easily   the lip payment incorporates the uses as a proxy that medicare medicaid fraction it is different from the from the dish payment and a couple of respects it does not track the dish payment directly so  act for example change the dish payment quite a bit the payment has not changed there is no question with respect to the live payment of the language such as congress used because there is no language that congress uses is something the secretary is a policy about the calculation of a discretionary adjustment actor and that simply isn't within that very rare category of cases and of course we don't have a case where the court actually of this year is actually  because here is there there's a need to look at the specific language and context of the particular statute and to the extent that florida house stands for the proposition that the component parts of a particular calculation are precluded if that if the the whole of which those the whole of those parts is precluded and that makes the our circle surplusage argument all the stronger because if if that were true then there where there have been no need for congress to separately list all the different items that are otherwise  inextricably intertwined it is made after the fact that cost report settlement using data from that cost year at issue and it doesn't involve any of the other calculations or perspectively set   the regulation was not the reason i think the the agencies view in the minister's decision was that the word unadjusted was inadvertent and that just doesn't seem credible to us especially since the