it's times that we're in requirements to do this by video so we appreciate your cooperation and your willingness to participate and inspection as opposed to preference we need to ask you in person in one of our courtrooms very familiar with the arguments and well as the say that you cited as your briefing so with that we might as well go ahead write in and start mr mcbride i understand your claim sixteen minutes for your initial and two lost u s b drives importantly in the case the department found there was no harm to individuals yet despite there being no harm to individuals the department assessed the penalty but the penalty against him be anderson is not supported allows the government to assess the penalty against a person but the term person is defined specifically in the statute in section thirty one and that definition says the person means an individual trust or a state partnership or corporation it does not include the state the government acknowledges that this is the definition that the clickable to have they did that when they proposed enforcement regulation back in two thousand and five stating this is the statutory definition that applies to this result of straightforward facts tori interpretation is also supported by the case law in two thousand the supreme court issued the decision in stevens and in the stevens case the supreme court was dealing with an issue of whether or not the states were persons under the false claims act now importantly in that case there was no statutory definition and so the court identified a couple of key presumptions that apply here st the supreme court said there is a presumption that the term person does not include the sovereign and nd of all the supreme court said there is a presumption against the imposition of penalties on the state supreme court went on to say that if you're going to impose penalties on the state and change the balance between is the following the standards right not the penalties but the standards the standards that are hit the apply to the following persons the word persons generically if you read that statute we don't believe that that changes the definition of person at all if you read th statute if you were to eliminate the word persons it's doing no work there you could read the statute and it says the standards apply to health plans clearing houses and health care providers if you compare that to the statute in the five which talks about the penalties the term person is doing all the work in section d five in section d one it's doing nothing it adds nothing to that what what the government's position is is that this section one somehow changes the definition of the term person but i would suggest the court if you look at the supplemental briefing that the government filed last week that's not true the government's arguments now are contradict each other and they have a problem in their supplemental briefing probably just two points the st problem is this if you look at page four of their supplemental briefing they go through and the government says into some sections the court six congress on a big if lee spells out which person it's intended to apply to and they reference and twenty one dollars so their statement is it's an ambiguous we don't agree with that but that's their statement in that section their next sentence is that in some others in other sections though you would have to look at what congress intended from the language the context and the principle or principle principles of statutory construction in other words the government argues in their supplemental briefing that even if it's changed in section v one it's not changing it in well there's their definition so if you look instead the definition section at three thousand and twenty right the government has the opportunity to put in all sorts of definition which they have done there what you'll find missing from there is the definition of person because persons already established in the statute which bank knowledge does that is the definition but what their argument is one is that the standard applied to a health plan a clearing house and health care provider state hospitals or health care providers health care providers actually define person and include a lot of it well we were not suggesting that health care providers aren't going to follow the standards of hipaa what we're suggesting is that this provision does that that language in the term person is using is used generically and when you do a comparison of that section compared to the penalty provision in the five you'll see a difference in v five congress did not assert say that you could assess penalties against health care providers health plans or against clearing houses they said against a person and then be consistent with the way in the presumptions of statutory construction that exist in case law we think that  world to comply with patient privacy and the andersons mission is to cure cancer they do that by research by patient care and collaboration with other institutions in the federal government if they nor patient privacy they're going to defeat themselves in their own mission but the government's not powerless and how they can promote compliance when they issued the regular the regulations related to enforcement they specifically said they'd work with providers technical assistance to allow them to try to come into compliance so they can still provide that technical assistance the government can also if they think there's a state agency that's not working with them they could also go to their state counterparts and work with the state and force an agency to try to pursue enforcement the government could also sue individuals going after individuals for individual liability if it warrants it also the reason these scans these state hospitals often they have many different types of agreements and it's an extreme measure but if the government thought the state hospital was not taking its it's responsibility seriously it could it could decline to provide any more of those contracts to could sue them for breach of contract and finally your honor i know this the government h h s in particular has many different types of regulatory schemes including issues to deal with quality of care and oftentimes those quality of care what they do is they come in they cite deficiencies and they work with the hospitals to do corrective action all these things are some of the things that are available to the government to still pursue in perth and promote compliance what's clear though is that the government cannot assess a penalty against the state agency under the statute and that's the issue that we have here today before before this court it's a very specific issue and it's the issue of how do you define the term person and how does that turn her term person work when you're talking about imposing penalties on a state the government supplemental briefing again i go back to the page for it it's interesting they basically said under section v one they think it's an ambiguous that the government changed the definition a person we would just use that say it needs to be unmistakably clear but even so the government's next section is that in section d five they walk away from that position and they say in section five you have to look at the language in the language here it's a statutory interpretation and the language of the section says person doesn't say anything else you have to look at the context the context is worth testing penalties against states and you have to look at the appropriate principles of statutory construction and those are a presumption that the term person does not include the state a presumption that you don't impose penalties against the state and requirement that there be a clear statement and unmistakably clear statement is that for language the government's next sentence after they say that in their supplemental briefing is to refer the court to a regulatory definition that was proposed in two thousand and a regulatory definition won't meet any of those standards it's not a statutory language it's doesn't meet the presumption the government's position in this is tortured now by comparison  andersen argues the court and their arguments harmonize they harmonize the clear definition statutory definite some person harmonize with the presumption that a person is not include the person does not include the state's harmonizes with the you could read the section to say the standards apply to the following and then do the list you could say it applies to the following and he's that is different when you look at the statutory section five where you're talking about setting a penalty and the government supplemental briefing also makes the distinction between the one and the five the other issue i tell you the other is i'd say with the government supplemental briefing that raises a disconnect in their arguments is the government focuses in on the idea that you can take certain terms and they can have different meanings right within how you interpret those and the government site several different cases but the cases the government site deal with the terms of air pollutant terms of imprisonment or employee and that misses the mark here this issue has to do with the term of person and in particular the imposition of penalties on a state there's two cases in their supplemental briefing that that touch on that the st one is return mail and return mail is instructive that it's a supreme court case f m last year and in that case there was no statutory definition of person and the government was trying to assert that they were a person for purposes that it's of that's going into a patent dispute the supreme court reiterated the presumption a longstanding presumption that the term kirsten does not include the sovereign the supreme court looked at the dictionary act of one thousand nine hundred and seven also found that that did not include person the government in an attempt to distinguish themselves argued that this presumption was going to be the strongest when you were trying to impose liability on the government and the reason because in your turn mill they were not trying to impose liability so here the government's own arguments is the presumption is the strongest when liability is being assessed here what happened those print court said no you can't make that distinction the mere fact the government said the mere existence of some government inclusive references does not meet the affirmative showing required to overcome this the presumption that the person does not include does not include the state the only other case they reference in their in their supplemental briefing is the university of alabama the read the border agents of the universe alabama and they use that for the proposition that they have the ability to sue states but they leave out one critical fact from that case that case still with the a b a and if you go look at the ministry the americans with disabilities act there's a specific definition of person opposite they saying this definition would apply but if you look at the head that can't possibly be the definition because the person is subject to the health and clear and the team not th is likely to be an th amendment issue at all we weren't sure enough to be able to put the briefs that there's not really before the court but the relevant laws think the us to be good but the attorney problem was very low but not nonexistent we didn't want to commit to a justice department we thought it was also overwhelmingly likely that you would be able to to interpret those provisions the same morning and turn united states came together the states consented to suits against each other or among themselves and here it would be we think if a state attorney general wanted to serve another state that it would be a state  sides have you know what looks like a problem here which is that once you've defined person for all purposes in their heads then you can't use it for whatever you know thing you want to do know for example natural the training or you know if you develop for another person then that's a problem so i actually think that they did by giving a functional definition of saying here are the people who have to comply and you know if you know the agency check that comply of course have the regs don't tell the provider how to comply that's up to them they have flexibility to implement the head but they don't have flexibility that they're not going to just just not going to implement seriously and what you're talking about here are three devices right that were lost or misplaced out of approximately thirty thousand dollars plus devices you're talking about three employees who didn't follow and the andersons policies and procedures out of our workforce more than twenty thousand dollars employees and i think that the record is absolutely sufficient which the v a be in a low did not review there is plenty of records there's plenty of information a record that shows the activity that m d anderson to protect patient information what you have here is a problem from the government enforcing to regulatory standards by expanding the regulatory definition and in both cases under encryption a disclosure that's exactly what they did they expanded encryption regulation to require that the that and the andersen provide device level encryption that's not in the regulation on the disclosure they expanded the definition of disclosure to include loss of control that's not in the definition in both cases the regulatory definitions are very clear and m d anderson met those regulatory definitions and what the government's suggesting that this is a serious violation is just not supported by the record and so it's frustrating to hear that and i think that's been part of the frustration for m d anderson through this case is that nobody will look at the record nobody will talk about everything they've done the fact that m d anderson started to discuss device level and christian we have we have testimony in the record from an expert saying m d anderson was ahead of everybody in the industry you know what the government does is they use and the andersons own goals to improve its privacy to then come back and say you violated these regulations and we're going to impose a civil monetary penalty there's no support for them to expand the regulatory definition it's not supported under kaiser from the supreme court last year and it's not supported by the record so i don't think that there is any  i just want to be clear there's to suggest that somehow this puts so many people at risk it was a terrible violation i don't think it's supported at all and it's frustrating to hear that i would just summarize that when you go back to your questions you asked them about the person and miss murphy said occasionally yes it's very clear you look at statutory language and she referenced everything but language from the statute the reference to high tech from the legislative history but if you go look at the actual statute i don't think you're going to find that unmistakably clear language in the statute that changes this definition if congress was aware that this definition apply and w congress is aware of a specific definition they know how to change the language they've done it many times in other statutes where they've changed the language a person to include the states they've done it in the antarctic consume consume conservation act they've done it in the a area all over but they didn't do it here they implemented and added a whole bunch of definitions but never did they try to change the definition of person and i think that what that leads to is the inescapable conclusion that you have to look at the term person in section d five apply the presumptions that come from statutory interpretation which is the st presumption but a supreme court is that the person person does not include the states and the nd presumption that you don't impose penalties on th when you do that you reach the conclusion that m d anderson is not a person and that they cannot be held liable for a c m t and i also would add that they met all the regulatory violations and you know the