war which was not until august of two thousand and sixteen so the comments that my plan and the corrections that my final question were actually made to hold this calculation not to the final calculation geographic area as compared to the national average sure but the secretary can also devise a process for making that determination and we've said secretary gets deference in structuring that process which necessarily include stud lines for hospital that absolutely we can see that the and to impose and so so here there's a deadline nantucket misted correct your clients come in and they say gosh this is unfair to us we didn't miss the deadline and  secretary's response is the deadlines established by legislative rule it's important to the fairness and integrity of our program and we have a pattern of not excusing it and seems like a perfectly plausible reason for not excusing what we submit that those justifications are not perfectly possible and at the end of the day while the secretary certainly has discretion as to how to and there are a lot of case law in the circuit that has talked about the secretary's ability to balance accuracy and finality and this is the big job here is not just computing one hospital because one hospital affects every possible in the country on the error which is extremely rare and extremely significant even by the secretary's own standards so what we're talking about here for money for with respect to the wage and as it was a seven percent drop in the wage target and therefore for those imputed for hospitals to data in the record published by the secretary in a fight two thousand and seventeen shows that one percent of hospitals nationwide anything close to this kind of drop in the wage level so to to correct this kind of significant error we submit would not have been a significant burden on the secretary do you have any case or any instance in which in a situation either exactly like this or at least someone like this h h s has tewson to excuse a deadline well you have method as the the method this case which was relied on heavily by the court below that was a wage index case and in that case it had to do with the sat sacramento it's a display area three final and then there's other instances in in the record in this case in in in the final rule that reflect that the secretary made other changes to the wage index that you know were from the proposed rule data from certain hospitals because according to the secretary that that data was was never and shouldn't be included in the final wage index and but between on you know that the existence of banana seed and deadline and h h s is desired to enforce it it's just a straight out retroactivity case the issue comes up they think it's preserved and they say we'll there but so far as we can tell on the face of the opinion not in the face of a prior one deadline well clearly the hospital had submitted the crackdown by the deadline or is it the nd stage is that after that is that the contractors that do a guest review they submitted this in a c m s in january of two thousand and sixteen publishes a revised spirit sheet and the hospitals are allowed to challenge more recent revision of the spreadsheet so those were on time and in fact if you look at the response to that letter c m s the secretary read to make those changes the problem was this one aspect of it that had  these all of these all of those decisions are just inputs to what ultimately becomes a proposed rule which has to go through notice and comment room making and as a matter of e p a law the secretary is legally obligated to keep an open mind at that point to take comments respect to that component of what is at the relevant time only a proposed rule i think the secretary did respond to the comments i don't think that's in dispute there were there was response to this particular comments that were submitted by hospitals and associations in the us it uses and has either messaging since the secretary interview made that the only reasonable decision whether to accept and what not to accept and that's part of the rule making process no question about that  not by other hospitals but by age in chess itself and he said internally this is a really complicated calculation we're going to give ourselves an internal deadline of x and we're going to stick to it every hospital there cares about every of every other hospitals in the costs now let's suppose you have an area which have ten hospitals i spoke to check to correct this by september nd some months later so forgot to correct this is really wrong so was hospital six do cause a hospital to use as your rd party hospital and i just don't see how that's an answer because i think the premise is still the same there was no deadline on those other hospitals that they had to have their comments on data in by that seven month earlier deadline and in fact there's no evidence in this record of the bad faith you're suggesting and so they wouldn't have known and i thought the whole point of notice and comment r result is that the hospital in alabama due to budget neutrality is going to get way less money than it should so there's not hacking of cover me here can you object because i didn't get my dad in on time right the or offered reason explanation for not addressing become the concern raised by the hospital in alabama are all hospitals in alabama that are going out going to come up short because of over inflated numbers and another state well i think actually the response  data to make it more accurate was from people who are going to benefit you get the right if you in the exact same timeframe you instead get a comment or a lot of comments that come in and say wait you trust the hospital provider to report we don't want this this is not the time we can't we cannot pass the numbers now is this precisely because the process is so complicated and it's too difficult people know how to answer that and to allow people to theoretically possible to do that there's no question is theoretically possible to do that with computers they can probably figure out how to change the mission as an employer but i mean part of your explanation was rules are important this is complicated you just don't make exceptions that rand this seems like a somewhat analogous case where you you did something that looks like a somewhat analogous exception from everything else that h h s have to deal with and on top of that every adjustment you have to make even to that long index is going to have a number locations for every other hospital in the country i get that but it could it be less complicated than it sounds in so far as you know maybe all of these numbers are just sitting in a computer somewhere which can just spit out the affecting all the lot because there are two different kinds of data that we're talking about we're talking about the ones that feasible to do are the ones that are already gone through the process that have been worked on by the medicare contractors all of that by soonest going back to the hospital back and forth and back and forth those are the ones it was ok to correct those the other ones the one that in dispute in this case never has been seen this proposed a record never been seen by medicare contractors because it was never brought before them and this whole process is back and forth of correction and double correction triple correction as never gone through that and you can't just take some unknown and corrected either in the spring where and when the when you're in at the end of the cycle and you can't just take that seek correction of that because of the mistake that the contractors are day that in this case has never been even seen by a contractor it's never been presented to a contractor because according to them or even then took a couple of the corrected in th that's not the way the process is supposed to work and it's not going to give you more and more accurate answer to average hourly wages and tell good order or to the to the wage and you know in addition your point about deadlines yes that's exactly right but i still don't understand what you do when the person who is objecting to that out it is not on a state hospital who's going to be hurt and they don't know they have no way of knowing i don't think about a few years ago this is the statute provides some very specific directions but at least the vast majority of this process the secretary's reasonable discretion and there's an things you can do this in things you can't do the certain things that's reasonable to not the time for people who couldn't who did not have any pirate in line to comment about something that's harming their interests and if the answer is deadlines it's deadlines or do it otherwise that's one thing but if in fact deadlines are deadlines and we target to change its data that has well but then your request was still pending they do focus the comments to focus on the distinct equities of the rd party absolutely no question about that but they don't say that they couldn't have commented and what they said was that interview has a pending request to have the day that corrected and the like to and you should grant that because they know that if it's correct if it's granted it's corrected and then talk is going to affect them don't i think this is a position we don't care if you can correct me and talk to hospitals numbers they're on their own they hurt themselves they shot themselves in the foot but don't want all of us so fix the wage index for everybody else who was innocently affected by  error now that's what does that make a difference in your mind no it doesn't make a difference but the point is that that's conceivable in the case involving the rule floor it doesn't work in the case that doesn't involve the roof work because everybody in the pump statistical area has to get the same made is that it would be good sound public policy to use the most accurate vailable data in order to prevent one hospital static errors from having a negative effect on medicare payments being clear here because in other words they did they did argue that there's more to this than they're just saying help out nantucket even though nantucket messed up well they said don't l and the st and the response to that response to that is deadlines or deadlines and i guess the i guess the question for us i mean i think it's a close question for whatever that's worth is whether we read into it that all of the laws that you would have us read into it about this is just too hard and there might be subterfuge if we allow rd parties to reopen and that the still has to go through the process will give you two minutes those are right here are new errors that you've identified based on what we have sent out to you and of course that's what should be commented on at that point but with it when i'm asking you is there evidence that of the time of the yea am is out or even a later date like it was much later methodist hospital they said oh you can now we will now make changes based on an error rate that was made at the hospital's original submission point that the hospital could have plenty of opportunity to correct and didn't his senator happened so other than the other that is methodist hospital where it clearly  one hospital had on the entire state and the ability of of other hospitals to recognize the significant error generally where they say imminent doesn't strike me is the reasonable thing to say is that if this no reporting hospitals going to have to be that careful because if they find an error later they're going to pick up the phone call their friends and say can you complain about this please well i mean i do i do think that the secretary has you know we can see that this is the way to that's is not an exercise in you know scientific exactitude i think that was the other gets language but we do think there is a line somewhere that the secretary must reasonably draw when he's waiting accuracy which the which the statute does require are our position is that that is not a reasonable that it is not reasonable to sacrifice and that degree of accuracy which is required by the statute in favor of the administrative burden of the ear that is one change clearly in your position is not that you're treated differently than other people where changes have been made your position is this is just too big of an error our position is that the secretary has discretion and does make changes and i'm talking about this necessarily this particular type of change but it does make changes to data that are the result of hospital error after the proposed rules issued and so he has that discretion he does it and then we believe believe that now as a as a result of how they're going methodist hospital as a result of hospital error do you mean something that the hospital should have known about when they st reported should have caught in the four or five months of back and forth wh say something that that was exposed by when you went when the secretary put everything together in the n p r m comes out you know wait wait wait a minute wait a minute well i mean i'm not sure but in terms of what should the hospital have known or not known but it was the one you got yeah and so in that instance my understanding is that it was data that that the secretary determined was about the data reported by hospitals that the secretary determined was unreliable and therefore not going to be included within the region that the errors were addressed we got new data that he included it in the region so my point is that the secretary has the discretion to do this has to weigh the you know the history actually obligation against legitimate considerations and in this instance we don't believe that that that the the reasons that were given in the