it to the wage index and it concerns the exclusion of nursing personnel from the calculation and i don't mean just put in a classification i mean excluded from the computation you're talking about these technicians right correct and they were put in the all other occupations category and all other occupations category and that means they were excluded to be in that category it's not simply and the district court may have missed this point but it's not simply being put in a classification it's being excluded well it's a classification that i guess doesn't count correct that's a that's another way to put it what the act i think we're looking reasonable here the law was struggling with how many people we have involved and this is the group that there was a shrink the number of categories from what twenty category thing which you could play i think people and in that didn't the government decide that this small group that constituted less than four percent of the employees then f this other occupations category that you're understanding because it's not my understanding you think the four percent category i'm that that is that is a little confusing to me i do know and this would this would be significant to my client that the the effect of this exclusion is about five hundred seventy five thousand dollars because it was the sort of the of my question and it's a it's a it's a fair amount of money it is a fair amount of money and there's no question that i mean these were surgical technicians that they they were supervised by the manager peer operative services with immediate direction of the operating physician required by the operating physician to do things incident to do for seizures metal mental health technicians do a variety of things that there be to delegate about the registered nurse they assist patients when needed personal hygiene etcetera of technicians prepare patients for testing and assist professional staff with monitoring connecting heart blood pressure etc so all of these are nurse extenders providing acute care hospital services related to the and patient perspective payment system i p s oppy place i mean your argument is that these technicians should have been classified as under the orderly is under the orderly is but certainly under the nursing yes in two thousand and eight in two thousand and eight it was it was going on i understand that that would be a frustrating concern for your hospital because it seems like you raised this issue and the answer was here's how we're going to do it  we're going to we're going to put them in another occupation this four percent percent small category and then after everything was done it's like they listened to what he said they didn't place him in the order of its category but they placed them in the lpn category so i get that that's a frustrating position to be in and a costly one the question is whether the steps that the government took along the way were reasonable and appropriate way to try to meet the bellevue imposed time schedule and hone work through this tradeoff between asking hospitals to spend a lot of time categorizing people in up to twenty or more categories honing that day onto a smaller group of categories and then ultimately hearing what you think and moving some of these nations into the lpn category the question is within reasonable did they act appropriately and working their way through the system having heard what you  and bought it and move them into a corrected category later but somewhere in that transition your hospital got hurt so the question we have to ask is with it reasonable for them to take those steps along the way that ended in the problem for you it was very unreasonable it was arbitrary and it violated the statute in fact in fact to turn to the statute that contains the wage index which is it's fourteen us thing it's a mouthful thirteen ninety five w w d three a lot and the first two cents of that sentence of sentences of that concern the wage index that this court spent a lot of time with an atrium decision atrium does not get to the occupational mix adjustment which is a is in the last sentence and if you look at that sentence read in context of the whole  the earnings and paid hours of employment occupational category and shall exclude this is the only exclusion all exclude data was respect to wages and related costs in furnishing skilled nursing facility services now that starting house that's and that's because that's covered by another statue absolutely and everything else shall be included we would read it that way because the hold the whole foot well they are when i was designed to make hospitals more efficient well i mean everyone in their ox that may be a punitive design but as a matter of reading the statute i don't at all see the inference there that because there excluding one type of service for the reason that it's covered by a different statute altogether that the agency now is just totally bound to include every other kind of service in its calculation including it would be consistent with the congressional intent usually i mean we start by the words you know and they don't they don't seem to support the inference that you're suggesting here bellevue decision when they're talking about the and this i think we're likes to your question i hope it dies but in bellevue i mean the o m i was was very new at that point and as far as i know and intent in terms of what the parties have sided and what i've seen bellevue is one of few or or maybe the only one of the circuit court reported decisions that specifically tackles the back and that case they were just ignoring the deadlines and the court the court called  continue as a failure that's just you know that's history and it's not really it's history but it kind of it explains what happens because that was sort of the genesis of what happened here in bellevue they set the dandelion the book of i say out rather than the book of genesis not quite back that far back but that what we understand that it did have an impact but the question becomes whether the impact might suggest that  you need to you need to do your job c m s go out they are your it out and do it at one hundred percent with a very very limited time line they were given in which to implemented one hundred percent level took the necessary steps in order to implement within the required time fine well the internal communications at the time when this was going on there they  recognized that it was arbitrary you know itself i mean and i mean there were e mails and communications with my client when they were considering issuing a clarification to expand the number of personnel they realized there were other types of personnel that were similar to nurses that were being excluded why did they not raise the ball and he joins the action to decide want to use the occupational mit for their purposes of setting the wage and that isn't explained to me help that's unreasonable you know they figured out we're going to call they on the twenty categories we're going to make it a smaller group and here is this outstanding question we're going to see more instructions and we're going to say to all of these employed groups that go out  collect and and assist in performing this here's where you're going to put those people and that's what the instructions said so help me understand why that was an unreasonable action by the agency to implement the statutory requirements in the timeframe denson nighter well they say they had six years or five or six years to do it and it does it really and we are at this spot no nail where you're saying you should have included them in this category and they're saying no our instructions are telling everybody involved in our system here is where those people go if the orderly with what you wanted and they said no you're such a small group we're going to place them in the four percent category which i give it means that they were technically not calculated but would be struggling with the you know the oversight here is depending upon whether you whether you agency is interpret in the statute chevron deference or whether they are interpreting their own regular tory activities in both of those situations you have deference a maybe a different level but you have deference to what the agency did so i don't think anybody's disputing the impact this head but i'm asking you to tell me what it was in those steps that took them outside the deference standard that is granted to the right to vote i think it does go to fully implementing the statute i know that judge catholics doesn't doesn't agree with iraq but i think  if you're looking at something to make hospitals more efficient and you're not taking the whole occupational mix in account for all those wages that relate to the people providing the nursing services then it's defeating the purpose it's defeating the congressional intent and in this case it was better than we do i mean we're really deep into that and interstitial you would you would want to go back to the twenty categories in effect that would take everybody into to account well in any categories that would fairly take into account the employees that provided the services that are well you know i understand the frustration the frustration is that these people are have a lot more  obviously any opposite of spending time in hospitals would recognise that but the orderly is there in fact the ones that have hands on nursing care in a sense that the technicians don't and you you describe it correctly it's a nursing extension i get that but but at some point you have to say i wouldn't think that putting them with the order would be a reasonable thing to do in fact i think they  meanwhile the record would suggest maybe forty nine hundred other hospitals did do that and i'm not really sure you know that a you're saying that you're entitled to a mistake well you didn't you classified these as orderly as and then the intermediary change that right and i mean what i mean i know i totally get your frustration that you know there are ten spittles in your area forty five around the country that were able to get the classification it would appear mistakenly that you want but i mean why why are you entitled to the benefit of a mistake basically we don't think it was a mistake we wouldn't help well except unless they had to recalculate everything but wouldn't you think the rim of the would be for you to say if i don't get it those ten hospital shouldn't get my can give it back well because that was the error the error was letting them get it because that fiscal intermediary just didn't didn't do what that fiscal intermediary would tell that's correct now in the in the sarasota thank your honour's and may please the court case and ross on behalf of the government i'd like to rephrase the issue because playing to seem to characterize owensboro health as receiving some sort of exclusion but in fact all of owns pro health technicians w measured according to the statutory language so if we can turn to the statute the language addressing the occupational mix adjustment is both the sentence that plaintiff's counsel is quoted that the secretary shall measure their earnings and paid hours by occupational category and so that is the secretary discretion to determine how exactly to measure certain occupations yeah occupational categories not defined direct correct off to the races on that correct but then if we look to the beginning of the statute or the of this particular subset subsection it explains the secretary shall adjust the proportion of labor costs by a factor as a stablished by the secretary i don't think congress could have been any clearer that the amount of discretion in title to the agency is an extraordinarily broad as this court explained in the atrium medical center case and so as this court was discussing with the plaintiffs there's an enormous amount of discretion as this is certainly a quintessential owensboro says we did what you suggested we took work that all of that aryans didn't need to be doing at their higher wage level and we got a technician who could do that we honored your purpose and now the way we the steps have worked through we're losing five hundred seventy five thousand dollars because we're not able to consider those in the appropriate category where  and now they're losing five hundred seventy five thousand dollars which to small hospitals in rural america matters it's understandably a runner one must imagine however the breath of the medicare program at issue five hundred  seventy thousand dollars puts off gives me five hundred seventy five thousand dollars is merely a drop in the bucket as the agency is concerned that the burn rate is enormous however with respect the intent of the program was not necessarily strictly to quote unquote push certain employees into lower cost categories rather it is to measure variations in hospital staffing levels and to basically what we understand is it to be sure that when you have a wage differential between two different areas you really measuring the wage differential you're not measuring hiring decisions exactly right so that's what they were well it's but it's also that  the agency determined the technicians are employed at perhaps relatively similar small rates across all hospitals you know the plaintiffs point to janitors for example as not being measured in the occupation makes adjustment now that's probably because janitors are employed at relatively the same rate across all hospitals so there's no need to adjust hospitals medicare payment rates based on essentially a control variable and indeed that is why the medicare payment advisory coun that certain categories should be put in the all other occupations category for explicitly that reason the reporting burdens on hospitals alone for complying with the congressional directive is enormous and noticing comment that weren't there a lot of complaints about having figure out all of these twenty categories so trying to lift the burden on the hospital of having to report across the huge number of categories exactly in the agency made that cost benefit decision to most effectively stations that would result in a roughly five hundred thousand dollars change in that particular fiscal years medicare payment if we were to calculate the ten hospitals so that they would no longer have the error it's we have no idea what that change would be sacramento that would be enormously burdensome on the agency and indeed that is why the rates are implemented prospectively so that hospitals can look forward and plan accordingly so if there are no further questions i respectfully request i just would like to make one point if i may do so there's there's no confusion about it to be in that all of their occupations category is to be excluded and i would cite the court of the federal register volume seventy one issue ninety five five seventeen zero six that that was applied i think that the district court missed and is a very important point in terms of saying that the occupational mix adjustment is correctly applied the agency does its job thank you thank you thank you both