if you're going to go through all those papers you might need the full twenty five minutes i'm just joking with you is it that's correct this coulee whenever you're ready good the court i am learn coolly here on behalf of humana with my colleague kimberly donovan i would like to begin this morning by focusing on three reasons why humana acting as a medicare advantage organization properly removed as a federal officer st a medicare advantage organization is doing work that the federal government would be obligated by federal law to do itself but for this partnership as an embryo it serves a public function  directed by the federal government and that is the administration of medicare benefits that special relationship is demonstrated through statute contract and regulations second as this court recognized in ten private contractual arrangement let me ask you a question about the record section two point two of humanity's contract with the office of personnel management states the humana shell provide the benefits in the agreed upon brochure text found in appendix a and i don't see a copy of this appendix in the record is it in the record that more general appendix is not in place of that what we've provided is specific plans that were available for members in this case which is the same thing as the benefits that it would have laid out in that pershore and where is that found in the record that is found i believe it's in the exhibit after  the the contract and can come back up on rebuttal with the particular citation for that but the feeble plan that was a representative plan that was available to one of the few members that issue in this case is in the record as is the contract that humana entered into with o p m and that is in the context which is very similar to the medicare advantage context is the existence of a written contract i mean today's day and world you wouldn't have a relationship without it but legally is the existence of a written contract and the specific city of certain terms that matter for your argument it does your honor and if we look at watson you can think about this this federal officer question at two levels there's the the broader lens if you step back and think about what function is the private entity performing for the government and then there's more granular level where you look at what's the evidence of this relationship what specifically shows how closely supervised the private entity actually is and i began my argument i speaking at the general level to address your question about the more specific level and watson for instance the court pointed out there was no contract there was no payment there was no evidence of a partnership here in this case there's ample evidence of that nature there's in the mayo context the very detailed contract that a medicare advantage plan enters into approve medicare advantage benefits so the specific plans that are offered to medicare beneficiaries have to be approved by c m s pursuant to federal law and the federal contract c m s has the ability to terminate the cents of the contract with o p m o p m must approve plans that are offered to be members that include benefits and rates there are similar provisions for auditing and and terminations and incorporation of the federal regs and statutes that govern ministration of these plans a question about your nd your nd cause of action which was for unjust enrichment and i read the claim is seeking reimbursement for non emergency related services a right that  is a sense nd claim that's correct and is there a contract or statute or regulation that governs the rate that humana was required to pay for non emergency related services so under up that only related to emergency services i believe it also applies to emergency services i will confirm that and i believe this is also addressed in the tenant decision for how non contract providers are reimbursed  that that that that medicare fee schedule rate determines payment there are also provisions that govern providing and like i mentioned before  i would also point out that under supplemental jurisdiction even if some of a sense claims would not be specifically directed by the federal regulations they would still be brought in as part of the same general challenges to reimbursement practices and for federal office removal while there is evidence here of a specific direction with respect to certain types of claims that is not the the level of everything that humana does does not have to be directed by their government there can be discretion involved and still the connection requirement is satisfied there wouldn't be a relationship here with assigned at all but for the federal responsibilities that mayo has under federal law and human satisfy the causation requirement for a federal officer removal when neither the complaint nor the removal papers indicate whether hannah took any objections to recoup payments in administering the claims for the single patient who i understand was covered by the v a plan so stepping back your honor there is no longer a causal connection requirement the two thousand and eleven amendments by congress to the federal office or removal act to change the of the federal office removal statute so that anything relating to an act you take under a federal officer and titles you to come into federal court and this court recognize that that is a connection or an association requirement at most and it is meant to be a very low hurdle with respect to overpayment recovery of the way you state connection requirement there is a connection required that's correct as it's a causation i'll give you that with question about overpayment recovery with respect to an h p member whether an overpayment issue is involved in that particular member's claim is beyond the record at this point but i would point out that under the o p s plan and under the contract under section two dollars there are specific procedures for overpayment recoupment provided there so that to the extent that there is an overpayment claim that is governed by the contract but even if there isn't specifically an overpayment issue there is no interaction at all there's no reason for humana to be ministering the claim at issue but for its role plan and would occur but for that contract is enough to satisfy the connection requirement are you aware of the th circuit case of st charles surgical hospital honor how does that impact your argument your honor in that case i would also point out in the th circuit the scope of the connection requirement is subject to review but has is the agreement or understanding that is implicated when you manage to the actions that it allegedly took with regard to the claims by isn't it what what was it doing that was mandated directed suggested by some agreement with o p m or some other federal entity well to start with the federal reimbursement rates for non contract providers are determined by federal law as the tenant case recognised and the government has an interest financially in the costs that are incurred by the medicare advantage plans alternately the way that the bid process works for and they plan is that the the premiums that the government pays the plan are set on a per member  basis in advance but then the following year there's a bid process and the costs to the m a plan that were incurred in the prior year are part of that are reflected in that process in other words if costs go up to the end they planned those are passed on to the government  down the line so there's a financial interest here and in the efficiency of the program there's an interest by the government in having its medicare regulations followed it has an interest in consistency and you for uniformity across the country in the in the ways in which these standards are interpreted and it has and that connects to whether or not state standards are allowed to displace the medicare requirements the in the overpayment context for example over payments ultimately result in costs to the broader system and the government has an interest in keeping those costs down where does the maximum allowable fee reference in the complaint come from that is so it depends on the particular plan and your recipients for example it's described specifically but that is one approach to paying for  certain kinds of services by non contract providers when hugh when humana is if you're if you're if you're applying this case is complicated every time i think i understand it i think i understand it less but if if the argument on your side includes a contention that you are acting as a federal officer for purposes of the federal office or removal statute when you are applying a maximum allowable fee that is dictated by not a federal regulation or a federal contract to buy a receipt plan then it's just a mere government contract relationship that gives you the status you need it doesn't matter where the fee is coming from is that right that is right and general and the and i would emphasize again that the government retains oversight and approval over these the these plans in the way that benefits are paid and also that a sense allegations here though go beyond that  practices that involve regulations that are directly on point include not according to the complaint right but under the supreme for president you credit the defendants theory of the case when you are considering the connection requirement and that brings us back to the broader congressional purpose behind broad federal as long as long as it is substantiated right you have to explain what that is and tell us where everything can be found then submit whatever documents we need to review that are not in the federal code or the code of federal regulations right but to the extent that they're complaining about reimbursement practices for nonparticipating provider plans medic in the  example humana is restricted by federal law as to how it pays those claims so how the defense of well we have to do this because of preemption or are they they're saying well no you don't are whatever the specifics are that would be litigated that is a dispute for the federal court to decide and the importance of that is is illustrated i think both through the intent behind the removal amendments and behind the broad preemption provision for medicare advantage there any claim that the so called recoupment of alleged over payments was also done by humana in its capacity as a federal officer someone acting on behalf of the u s government with regard to these payments or not with regard to that specific part of the complaint the overpayment claim is part of their challenge to our reimbursement practices including for  members of medicare advantage plans where we would be acting as an m a o or members of a plant they don't distinguish between those plans and we know those plans are at issue in this case so over an overpayment recovery is an example of something that we you all of these practices remember deciding how much to pay deciding whether there's coverage in the st place these are all things we do pursuant to the federal standards that govern plans and so litigat exactly how that shakes out here under the federal office removal statute and then under congress's broad preemption provision which is intended to bring federal operations into federal court or sorry to have federal law apply to federal operations you marry those two together and i think it clearly shows congressional intent to have these days federal defenses over federal operations consistently decided by federal court and i think that the fact that there is a non contract provider here is really significant i think it's also significant that there are denials of coverage at issue in this case including for members of and they of medicare advantage plans denials of coverage are determined according to medicare standards and those are responsibilities of an m a o pursuant to federal law they're called coverage determinations and this court explained that that framework very clearly in tenet and in fact appeals from those decisions i would also point out that the f that there's the f b precedent which looks at whether the acts are being done in connection with adjudicating claims for benefits under a federal health benefits program there are reimbursement are a couple ways in which it's misguided st i think it was looking at the wrong lens at this at the wrong level it wasn't appreciating that without a medicare advantage plan that they've been a medicare beneficiaries who receive their benefits ultimately receive those benefits under parts and be directly from the federal government the government an active part in order to take advantage of an partner with private entities for innovations in the private market so the fact that objectives and promote federal policies in a way that it didn't think it could accomplish as a as effectively by itself i think overlooked that policy driver in that case and also overlooked the benefits to benefit beneficiaries of having these choices between different types of plans and that that was part of the congressional purpose and i also think the government are the six circuit overlooks the financial skin in the game that the government ha all the reasons detailed in the tenant case where federal law determines how those claims are adjudicated and ultimately the increase cost the system get passed on to the government i think those things were overlooked and the  case and this court has already you know analyzed this context differently although in the exhaustion context and the timing and the and i think the reasoning underlying the time of decision is already inconsistent with the sixers decision and claims it didn't explain why those contacts were distinct and i think that as we've discussed today there are actually very notable similarities between the way the efi program operates and the way the medicare advantage program operate a more broadly as well one other point on the connection requirement the district court in this case adopted a rate versus right of payment distinction it's not material here because there are denials but i would discourage the court from importing that distinction into the federal officer context from arista it doesn't make sense here it's inconsistent with the removal statute which requires only a connection so the logic there is when you have a coverage of terminations or right determination that's different for purposes of for office removal from determining the reimbursement rate the for non contract providers both of those things are determined by federal law and c m s requires us to follow federal and pursuant to our contract in a string these benefits it's also an overly technocratic way to approach these cases where typically the coverage determination and the rate determination are many of these claims bring up both of them and it's difficult at the pleading stage to divorce the two on the rd prong a federal officer movable for colorable defenses assent apparently effectively concedes that the express preemption provision would apply here at least be a colorable defense to these claims and as i mentioned earlier that it's not for this court to determine whether that defense has validity as to be colorable only and that's part of the purpose behind federal office removal is to have those defenses ultimately litigated on the merits in federal court denials and i would also point out we have a nonparticipating provider which is again a significant distinction here the rates the right to payment and the right to payment all turn back to the arrests a plan with respect to the claim under the florida statute for mergence the services as of the isn't that an independent state law basis no your honor it isn't that the emergency services claim governs the rate of payment st we have denials at issue here that go beyond that but with respect to the rate of payment that ultimately still has to start with the arista plan that doesn't create coverage the federal the florida statute you look back to the u s a plan and if you look to the us a plan you'll see that there is a methodology for determining how emergency services are reimbursed nonparticipating providers there is also i think important to point out that a senate itself alleges that it is a rd party beneficiary of the plans at issue that's and paragraph fifteen contention that these were all or reso plans or that there were some recent plans for summer as the plans your honor so that was and that was documented in your removal papers that's correct your honor were plan members and you can look at for example up on expired ninety eight and appendix seven hundred and ninety five and see how the fees for emergency services for non network providers would be determined for these arrests up  beneficiaries but with regards to the arista removal part not the federal officer part isn't there a distinction between nonpayment of claims and a dispute over the rate in runner is law there is in the in this court circuits identifying alleged over payments made to assent and then undertaking self help measures by deducting future payments due to assent from later submitted claims how do we know that eleven says to date six hundred and seventy thousand dollars in claims ultimately due to assent have been improperly paid withheld recouped and or deducted where does it say denied  paragraph twenty five dollars of the complaint and in that paragraph which we cite in our briefs it stalks about humanise failure to specify its basis for you know lateral denial of payment she was sent beyond the denial question your honor the cases in the circuit that deal with the rate vs right of payment all involve situations where there is a provider agreement there's something independent to provide the did you dream of winning judge jordan good morning may please the court craig triguboff on behalf of the yeah pelley ascent medical group let me go back if i can judge jordan to a couple of your very good questions  the st dealt with whether or not humana should be concerned at all about the th circuits decision in the ohio state chiropractic case and respectfully they should be concerned st of all it's not an outlier in that case the ciscos the th circuit excuse me found exactly what we are suggesting here and not just me judge jordan and members of this panel but the same findings that have already been made aga in the emergency services case the orthopaedic care specialties case which judge middlebrooks decided the baptist hospital versus well care case which a judge who decided the sheridan health corp versus health case which judge blum decided and also in part the baptist hospital versus humana case which judge and governor of decided and what were those these fair though there there were district court opinions in the state all over the place no doubt but i will and i'm i must sort of implore upon this court there there is these authorities that are coming out of the district courts here in the southern district or in lockstep and we're seeing this rate of payment nonparticipating provider state law claim case being resolved pretty uniformly and stuart's really judge prior to it was comes back to and i know you're familiar with anesthesiology associates you sat on that case i think almost fifteen years ago where that raid of reimbursement versus right to payment or rate of payment versus right to i'm sorry rate of payment versus right to payment distinction was drawn but with respect to that ohio state case judge jordan there was no federal officer statute removal found there again like here and nonparticipating provider like assent we don't have a contract with humana it was a claim involving recruitment of overpayments just like we have here in judge and judge jordan just like the questions you were asking counsel a moment ago specific to the concept of recoupment not denial of payments but  recoupment i'm going to rule out there is some language in the complaint that talks about denials and let me explain that and your honor that is true you know something i feel i almost feel like senator sanders here i i wrote the darn contracts while i at the door and complained so i'll answer the question here and what we have claimed they have violated is the following when they claim they have overpaid us there's a process where they have to alert us they have to alert the provide and say listen we've overpaid you for certain claims that triggers and gives the provider a right to contest and challenge and go through a process to say no you didn't you paid us correctly whatever that process is but what humana did here improperly and as we've alleged in the complaint is that th self help they took it upon themselves to claw back by didn't claw back monies they claim they overpaid us by then done knowing the payment of claims to facilitate denial of payment wasn't based on a contract exclusion other words they didn't say by the way we're we're not going to we're going to not pay you these new claims that are coming in because of some coverage issue it's experimental it's not medically necessary oh no what they did here was they as we've alleged they just basically said we've over pages so even though you're still rendering good medical services to our members we're just going to stop paying you on these other new claims for whatever the reason so that we can in essence rate to pay money and skirt the statutory requirements and the obligations that we have that's why judge adored yes is the word found in my complaint yes it is sir but it doesn't have to do with the denial of benefits it has to do with a denial of payment tied to expressly their self help clawback on that the florida statu i hope that addresses your honour's question let me speak very quickly because because again i believe that the ohio state case and the cases the florida district court cases that i've cited to should be well received by this court and should control your florida state court claims a violation of the emergency services statute they didn't pay us what they're supposed to pay us the rate of payment whether it's the lesser of our charges or what is usual and customary in the community or what the parties can otherwise agree to that's the statutory scheme and framework here in florida under that statute doesn't implicate at all a coverage determination it doesn't implicate at all the tr fact or laws having to look at and a risk of plan document or medicare or federal officer statute guidelines concerning pity as to the i think i agree with you on that claim but what about the cause of action for unjust enrichment relating to non emergency services and again judge pryor that to me is a simple state law based claim which again there is no it's what's the state law statute or regulation there isn't it is merely a florida common law right it's an action that sounds in equity in other words we've conferred a benefit they've accepted it they have knowledge of it it would be an equitable for them to retain the benefit without paying us the proper amount  isn't it also claim that could have been brought under section five of today no one i'll tell you what i'll tell you why that claim is not pursuable under a risk and that's a good question judge prior because this is a rate of payment and i know this came up in humanise briefs and we see this argument being raised by them repeatedly in other matters just because we have an assignment in other words the the right to bring this claim to get paid has been assigned to us by the patients that are the hospital you sign various assignment documents the only way this claim would fit your honor into your judge prior to your question of concern and that is why couldn't you bring this under rissa is because exe of the exact rate of payment versus right to payment distinction if i was bringing this claim under un just in richmond claiming that there was some denial of a benefit i paid to premium dollars this is the perfect example i'm a member i'm a humana insured i pay premium dollars to you good money and you denied coverage to me for something right that's an unjust enrichment claim that that member could bring and absolutely should be bringing as a plan participant  arrest because it's challenging the right to payment or the right to coverage here i don't have that standing because that assignment doesn't give me the right to challenge coverage it only gives me the right to go after humanity get paid the amount of money that i'm entitled to so judge jordan to simplify it i don't have standing to bring an unjust enrichment claim under rissa because again this is strictly a rate of payment governed i've got a i got an answer for that judge jordan and that is interesting lee enough humanise contracts and we've cited this in our brief humanise contract contemplates a conflict because the contract says  humana has with the government says that if there is a conflict between orissa law or federal law and state law concerning these very matters state law controls that's their contract with the federal government so the federal government quite frankly they knew they know that there are going to be circumstances where in cases like this and again i know counsel raise this point but this is not just a point to sort of gloss over you're going to have cases like this i think judge hoover recognized this you've got two private parties in a dispute over an amount of money to be paid that's what this is and i think the good folks at c m s and at o p m recognize that said wait a nd if there's a state statute that governs the rate of payment to be paid just like our emergency services statute and just like our overpayment stat we're going to defer to that because that doesn't implicate us i point was a little bit different i guess or a little bit difference i probably didn't ask i probably didn't hear i apologize but you said when we started when you started your your presentation that on your st claim florida law required payment to you of either your build rate or the customary usual rate i'm paraphrasing as acar act yes or the statute the statute gives a thought of a three prong framework it's either going to be my bill check my proposed client's charges ridge the lesser of my client's charges or what is usual and customary for similar in the community and that's usually expert witness driven or then lastly if the parties could otherwise agree on an amount so if even a risk the plan tells you to choose the customary rate in the community as opposed to the build rate as that trigger or is a preemption it it would but a risk but a risk that doesn't do that or is it doesn't tell us and in fact i will tell you there are cases out there judge jordan i will think of it in a moment i think one of them actually came out of pennsylvania think it was a involving temple hospital where we're not even allowed as part of florida law i think baker county is a case that came out of the st or nd dca some years ago as well we're not even allowed as part of the usual and customary analysis to put into play for example what hugh manna pays because of it's government responsibilities that's never going to be and that's not a factor the florida law lets us play by so we're never even permitted to say oh by the way where they can't even use the fact  a nd we pay you we pay other providers a medicare percentage so that has to be factored into what usual and customary not you've got to go based on again what is usual and customary for similarly situated so get in my case i'm a nonparticipating provider i'm rendering emergency services in miami dade broward palm beach county florida i've got commercial cases yeah i've got some government kate some a commercial claims i've got some government claims obviously the government claims are part of the mix but again under the law you can't throw in there for a whole bunch of reasons how much money the government or how much money is would be entitled to under some government payment because that's just not fair so again in this particular case what is usual and customary is going to be based on principle what humana pays similarly situated providers get what they're paying us what they're paying so situated providers and what we accept from those types of pay orders so the ariston or government payment analysis is not at play under florida law concerning usual and customary it's been carved out that language that you cited in the contract to c m s about state law controlling i didn't see a similar provision in you man is contract with o p m as am i correct i think you are correct about that just p but let me speak to why the federal officer statute is it is nevertheless not a winning point for humana st of all the three elements that would trigger jurisdiction and judged and judge latest judge he was correct when he found that there was no federal officer statute jurisdiction or arista jurisdiction but with respect to federal officer statute elements st of all has humana acted under a federal officer and the answer is simply no and the distinction that we see here and what the cases have told us is for us to look at whether these were this is a regulated relationship or whether in fact the government has delegated to an entity like humana its duties and here it's absolutely clear and again i'm i am glad that humana spent a fair amount of time in its brief giving a fulsome overview of the various federal rules and regulations that regulate that but nowhere is there any language that speaks to how the government is delegating to humana how humana has to pay my client under florida law when there is a rate of payment contest station and again this is not the case and i know you've seen these cases they've been dissed they've been briefed where you have the jet engine inspector clearly operating under when he's sued operating under the thumb because the f a a even designated him as a designated aircraft inspector and that's why the federal court in that case had jurisdiction right that's an easy sort of to kind of hang on to as you go through this analysis but merely being a regulated entity even highly regulated as the courts tell us isn't in and of itself enough to trigger federal officer statute jurisdiction and satisfy the claim in respect to humana doesn't have an answer for that because the truth is they are highly regulated i'll give them that i think we can agree on that but they were not delegated to pay my client how they're supposed to pay them under florida law and under the emergency statute or otherwise abide by the overpayment statute number two is there a causal connection or even a nexus between humanise payment again the answer is no for similar reasons there is nothing about this dispute between private parties that shows some connection between what humana has to pay us and its role as a medicare advantage plan i mentioned this before at no time in this case whether the state court deals with it we hope that it will or if the district court deals with it will the court trier of fact of trier of law have to look at that causal connection that nexus have to look at the contract that humana has with with with o p m or the feeble plan documents at all it will have no bearing because again all they're going to have to look at is did you pay a cent what you are obligated to pay them strictly under florida law statutory or common so they don't carry prong they're just simply is no nexus and lastly they haven't raised and i disagree with with my colleague we don't we don't concede that they have federal defenses here the federal defenses that they've alleged are not credible one is that we have to somehow exhaust administrative remedies no we don't the administrative remedies that are available in this case aren't available to a cent again a nonparticipating provider and we've cited in our brief to these number one the administrative remedies that are available are only available to plan participants went out a plan participant went out and rowley and the and when you when you go back respectfully and look at the briefs you'll see how we laid that out only in rowley's can challenge a plan determination not my client were cut out of that process to make it worse the b humana contract with the government specifically addresses its contracted relationships with providers and what those rights and remedies are i don't have that right i didn't contract with humana my client didn't for purposes of negotiating rates or contest station issues or grievance procedures were not covered there so that defense respectfully is not credible under under the law with respect to preemption i think we've covered the preemption issue already let me speak if i can to the arista issue but before i do that before i move on if i may i do want to speak to the tenet case and just to make sure that this court can draw the distinction because that is an th circuit decision that case is easily distinguishable and i think when the court goes back and just reviews it you will agree that is expressly expressly a right to payment case and therefore the nonparticipating provider had to exhaust administrative remedies had to do it because the court there found i think judge pryor this comes back to what you and i were discussing a few moments ago the non participating provider is standing in the shoes of the patient because again there was a coverage denial in that case so again i can't emphasize enough to this good court the importance the distinction between rate of payment and right to payment and the duties and the burdens that clients such as mine parties that are like my client have to deal with when we file lawsuits and pursue our claims so as to make sure that we are pursuing the right the right claims but again we're not standing in the shoes of anyone here we're standing in our own shoes asking humana to pay us what they are supposed to be paying us the correct amount of money strictly under florida law so i think that that should dispose of the the tenet case at least respectfully for purposes of your analysis  one the claimant could have brought his claim under arrest and i think we spoke about this before i can't bring a claim under a recess because i'm not a beneficiary suing to recover benefits or a challenge to benefits i don't have that ability that is not within a risk his framework so i can't cover item number one or at least factor number one on to develop and then separately in judge jordan this this i think factors into i think the question you had of counsel which is that there is there any other independent legal duty that's implicated by the defendant's actions and the answer is yes their duty to pay a cent is strictly govern again where a nonparticipating provider we rendered almost exclusively emergency services that independent legal duty to pay us is governed strictly under florida state statute it gives us george judge jordan as you and i were discussing before that framework to play under unjust enrichment again a good florida common law claim gives us the right to pursue payment independent of a recess for the services that we provided then to get fair reimbursement for and of course the of the statu that we cited to a concern in the clawbacks and obviously there improper holding back of payment to recoup monies those are all independent claims that have no implication whatsoever in connection with in a ris preemption analysis judge kugler you were going to it looks like you want to say something to me well i guess the question i have you keep going back and saying that state law sits on this and state law basis yes or cetera  i think i understand what you're saying but goat with regard to the common law well claim of unjust enrichment that appears to me to be how you're getting it they they  instead of fighting us own and the original payment that was made on a climb two years ago they're now deciding we overpaid it so thus we're going to keep it from a totally different customer now a different patient down the road and is that the basis of that you know sir let me let me let me clarify that for if i can we again we have the three claims the emergency statute claim where as a non part of a lot of emergency services were claiming you didn't pay us which i was under florida law the lesser of our no under the un just enraged i'm going there right next to the extent that we have also rendered services in a non emergent setting that wouldn't trigger that st statutory analysis that is the only claim i believe respectfully the only viable claim that we could have brought on to florida state law to recover for the services the benefits that we conferred and that the amount you should have been paid for those non emergent services sent by either an rissa plan and the terms of the resupply and or by some type of federal regulation no it isn't because at the end of the day it's going to be regulated by what is ultimately determined to be equitable under florida law because again unjust enrichment judge kugler under florida law while it's not technically an equitable claim it's equitable in nature so wait a trier of fact i understand that's the method how you it i'm asking about where is the amount sent i think the amount the amount is going to come probably through the same analysis that is undertaken with respect to the emergency statute because again what is their argument well they're all you have to have their court if their defense is look it doesn't make any difference the amount they're claiming you can claim it through anything you won't implied contract you know unjust enrichment there's a lot of  but the amount that they're claiming should be or is set by a c f r ultimately isn't that what their client they are let me see if i've got this answer for you it still comes back judge kugler to the fact that this is still a rate of payment case and it still comes back to if that is the case again when you look at the authorities that have drawn that distinction because this is still a challenge to the amount of money to be paid not an underlying coverage issue or a benefit issue it is not proper for federal court jurisdiction so i think in and maybe that's overly simplistic but i believe that is the overarching analysis here if this was a right to payment in terms of you denied coverage of humana were a beneficiary you were supposed to do this and we paid you all of this money and you didn't cover us for a heart transplant a bone marrow transplant whatever the case may be that would trigger the government's payment obligation under if the federal government says this is the amount you pay for a heart transplant yes in a case where a plan beneficiary says which is not us sues you man and says i paid you guys ten thousand dollars a year in premiums and now you're saying after i did all of that that i'm not going to either get that money back or if it's the doctor standing in the shoes saying wait a nd i rendered these services i this is ten thousand dollars worth of services and now humana you're saying i ain't paying it and you're only remedy in terms of the rate of payment is federal law in that case in that case they're right and not in this case because this case again doesn't trigger right to payment benefit plan analysis or review in any way shape or form and again it goes back to the same thing judge cooler where we're dealing with a simple dispute and i again i i apologize if i used the word simple and i know it isn't but it is still what it is it is a dispute between these two private parties involving accounting issues how much money d o s and in this case it's under a florida statutory scheme or under a common law claim of unjust enrichment but again it comes back to rate of payment that's the trigger judge kugler i hope i answered your question the last point nicely also i'm i'm running low on time i just want to address just so that we're clear on this because i know that humana has raised this in its briefing that came up before i think it was you judge jordan who may have raised the issue our claims and our claims are not hybrid claims and maybe judge kugler this this may have been causing you a lot of concern too which is a wait a nd here you may have an unjust enrichment claim that triggers federal jurisdiction i don't know but what we do know here is none of humanity's arguments here concerning a hybrid claim have merit we haven't we haven't done anything we haven't mixed all of this up for a reason and judge jordan you were correct at the very beginning my claim under that overcharge or overpayment and recoupment doesn't speak to a denial of a benefit and that's exactly what counsel was trying i think to present to the court that's where you get the hybrid claims where in one breath i'm saying on behalf of my client it's just a rate of payment case and then judge kugler maybe i come back and say well it may be a right of payment case too that's not what we have here this case is pure this case is a pure rate of payment the emergency statute only speaks to rate of reimbursement unjust enrichment speaks of right to reimburse mint and that benefits with those with what we have here which is again very simply they have withheld payment to us on claims coming in now in order to put money into their pocket to recover what they claim they overpaid us but they didn't give us our statutory rights to challenge it that is not a right to payment case and that is not a hybrid that this court should say you know it's a close call we should take jurisdiction i see that i'm now out of time if the court doesn't have any further questions thank you all very very much merry christmas and happy holidays thank you please the court i'd like to start with that critical distinction here and i'm going to focus on the end mail contacts we've got a lot of different statutory contexts running around there is a clear federal statute and regulation that requires non participating providers to accept and for us to pay as payment in full the medicare rates for medicare advantage services that are administered by non contract providers that c f r for twenty two to one for it's not limited to just emergency it's for broad preemption provision that sweeps in anything relating to medicare advantage plans the state statutes that set reimbursement rates are preempted by part c preemption provision what we do when i hear cases to that effect the on the much of what i'm discussing in the exhaustion context isn't tenet it's set up by this court and tenet on the preemption side whether broad preemption reaches i think it's clear from the text of the of the provision there i don't think it's even debatable that means or no cases i'm not aware of a case that addresses and mayo preemption specifically  i rely on our briefs there but it the standards established under part c with respect to medicare advantage plans offered by medicare advantage organizations supersede any state law and there are very specific standards there for how we pay nonparticipating provider has standing to pursue is not limited to the rate versus right includes the right to payment but we're not relying on exhaustion again we're relying on preemption the part c program is meant to be a federal program operated under federal rules these are imposing standards that are already governed by federal law and they are displaced by the preemption provision to article nine the contract provision regarding state law it says the state law applies only if a regulations on federal statutes so it would make no sense to interpret that contractual provision to wipe out the preemptive force of medicare advantage program i would also point out this is actually an easy case on the spectrum between your compliance with the law and exercising the responsibilities of the federal government in the watson case we had a situation where a private cigarette manufacturer was certifying that it was complying with federal requirements governing testing standards for cigarettes it was doing its own job under federal regulations here we are doing the work of the federal government that the federal government would be required by law to do we're not merely regulated we're doing a federal job for the federal government by providing medicare benefits and we're doing that pursuant to specific and detailed control through the contract and through these regulations that i have mentioned in the watson case that you know there was nothing of that nature this is much more like caver where the government has set up a program to to be administered in partnership with a private entity and has a specific contract in place to do so with the respect to is clear and this this court's precedent connecticut state dental is clear as well that you can't plead around and or risk the claim and no matter what the form that you choose to state your claim is at the end of the day you're quibbling with the really limited remedial rights that you have under the arista scheme that that claim is considered preempted and ultimately in this case with non contact providers you go back to the plan as the source of the right to relief i see my time is expiring