mistake of saying the quiet out loud explicitly saying in the plan that reimbursement for dialysis will be drastically reduced in the words of the plan folks want the members eligible to become qualified for medicare coverage for the s r d unquote  it could be used could be used except when the government mistakenly made a payment secondly even if the said you did require medicare to pay that's exactly what happened here medicare paid because virginia mason or special one office plan twenty months into the  ordination period finally rd it is overwhelmingly clear that virginia mason violated that must be when a chart changes terms to reduce benefits for medicare eligible patients alone virginia mason doesn't dispute that nor could it although the district co did not address this issue this court should reach the issue on appeal and resolving to be the savior sort of again that must be x broad cause of action says literally nothing about anyone else needing to pay before a cause of action arises and nothing about medicare period instead it only speaks about what the plan must do to trigger the cause of action namely fail to provide for primary payment or appropriate reimbursement i'll get to the cross reference in just a nd it would be the statute through a no believe cross reference the statute speaks of the primary plan failing to pay for by bear primary payment rather in accordance with paragraph one dollar and two dollars way but the text and the regulatory history just won't support that reading  st the plank leaves no explanation why congress would impose such a basic limitation basically adding an entirely new element to the cause of action through a passing cross reference rather than explicitly requiring that medicare have made payment if saying goes congress doesn't hide elephants and mouse holes if congress wanted to make the cause of action conditional on medicare making payment it knew how to do that after all just two years earlier in a neighboring provision that gave the government a cause of action it limited it to to recover in payment made by the united states and the fact that congress used different language suggested at different meanings in those two places they never explain why congress was so explicit in one and so indirect and the other second the cross references undercut the plans meaning and make clear the plans preferred reading would make the statute essentially a dead letter first paragraph on the cross reference the parent one paragraph one sets forth the anti page twenty seven dollars of three paragraph two a prohibits medicare for making payments when the planet supposed to pay it's not until paragraph two b which is a part of the cross reference to the statute authorizes medicare to make conditional payments under limited circumstances that are present here thus according to the plan congress improbably created a private write about action the condition it on medicare making payment and then a prohibited medicare for making payment plans interpretation means that congress passed a law that literally does nothing except perhaps when medicare mistakenly makes payments and under those circumstances the government itself would have a cause a back to the statute would essentially be a dead history of the of this the statute or the regulatory history of the agency's implementation of the statute or closes the plan's argument and this again refers to the regulation or the page in the federal register i referenced in my earlier argument fifty four payments when a group health plan that is primary refuses to make payments and the agency refused saying that medicare should not pay when it is reasonable to expect an employer group health and to play and they said it is reasonable to expect the plan to comply with the law rather and this is the part that i read off the federal register during the last argument when the provider the agency explained that it is the providers responsibility to complection from a plan when it doesn't make payment that is exactly what we're doing here today nothing in that entire discussion fifty four federal register for one thousand seven hundred and eighteen says anything about medicare having to pay before we could ever go into court and pursue our rights there was no cause for concern the agency explained at the time that it issued the regulation because congress a created a private right of action with the double damages if a responsible bird party fails to paper primary benefits again but nothing at all about medicare stepping in  st that contemporaneous agency regulation is entitled to great weight i have one question about another issue in my case if i exhaustion what does the claim fail for better reason no your honor we're bringing the straight under the medicare secondary payer act there's no exhaustion requirement under that act there's no language in th again there's nothing in the statute there's nothing in the regulatory history to suggest there's any sort of exhaustion of remedies angle secondly as i said even if the worst some requirement that we did medicare have to make payments medicare didn't make payment here after twenty months and this is the danger both here and any means kitchen when you give lower benefits and you subject people to balance being a billing which is illegal in injury under springer vs wheedling clinic just being on the hook for that is a legal injury when you subject people to balance billing people don't want to be on the hook for payment and it puts pressure on them to go on to medicare so they can avoid that and that's exactly what happened here after twenty months they said but we on this are going on the medicare and that is a real arm because medicare not only your family can't follow you want to medicare medicare also doesn't cover a lot of other things that are co morbidities or end stage renal disease like vision problems it doesn't cover i cause it doesn't cover certain that's a vision here and that is a real hardship for these patients in addition medicare it may have lower rates that is they may have imposed lower rates on dialysis providers and others but there's a twenty percent co pay and twenty percent of essential three hundred dollars for treatment is a real hardship on patients many of whom are vulnerable many are minorities many are work and that require them to pay twenty percent time and time again is a real hardship on them and indeed they may they may skip treatment simply because it's too much one or the other side doesn't really come up with any argument the court below said that well after after it switched to medicare then medicare w primary and so that they there was no cause of action but by statute the private plan is supposed to be primary payor for the entire thirty month ordination period and essentially that lower courts reading would decline would either be too late and that medicare hadn't paid yet or are too early because medicare hadn't paid or too late because medicare it stepped in and i think that that's just you know not a plausible way of reading the statu and then finally we've heard reports to the whole that the plan violated both of the embassies and i discrimination prohibitions we set forth in the opening why they had violated both of them they did not seek you addressed it and stood to be devoted entity and has responsibility under its plan for taking care of a variety of patients some with very severe kinds of situations such as cancer patients and it has a responsibility in its mission and as a result plan to assure that it is able to try to provide all medically necessary services that it may it is determinations regarding yes are deemed patient come in you enormous efforts across the country to try to deal with very very high costs from dialysis providers french's dida and divvied up claims that it mission and we don't just do it is to provide good services to the phalluses patients but it also is a for profit entity and has created a very profitable business or at the plan that is in question here disagree with mr owens characterization and that we have waived any argument that those provisions violate be taking into account where the differentiation pr skews me the way the case is for us would we even reach that question in other words if we can if we were it included that there is a cause of action why wouldn't simply be said barrack for further proceedings i mean we have i suppose the discretion to go for her but we don't have to do reining no we don't your honor but i think that i wanted to tee up some cont respect to medicare eligibility but it seems to me that that's not relevant whether it's violation or not a violation not relevant to the question or wherever action is cause of action the statute in itself has two conditions that must be met in order to bring a product cause of action one concerns the group health plan requirements that appear in paragraph whine but talk about taking into account differentiation of benefits it also includes reference to paragraph two a that talks about medicare shall not make a payment programs interpretation of what happens with regard to non what's a nonconformance with the general with the group help plan requirements and in section eighty for example of the manual it talks about the differentiation in taking into account provisions being violated when they result in a medicare payment a mistaken medicare primary payment and let me tell you just for context how that might happen because to be to takes the position that you can't have a medicare primary and that's mistaken i signed up for medicare part a and went to a doctor and got a provider not that i got out so i knew that a mistaken claim had been sent to medicare medicare doesn't catch all those that you ation there can absolutely be a situation where medicare makes a mistake and primary or secondary payment and in section eighty government realizes that you need to run the filter of whether or not there has been the a lens discriminatory problem through whether or pursued these other statutory purpose of creating equal treatment between marriage care patients and other patients so what would be the  well actually my point just to bring that point to closure was the medicare does make mistakes often and that's fine right but it's i'm eating less than i but maybe they make them often but probably not most of the time so my question stands even if you have to assume that there are times when they don't write mr x that and their plan is discriminatory in violation of the law what is the effective remedy that's available in your view there are a number of remedies that are available to the patient and to be done in this case all of which were not put into place for example under the yes id language of the benefit the program said that the minimum amount that it would it would be one hundred and twenty five percent of the medicare rate but said that was the minimum you had the opportunity patient or contractor to come in and ask us for more because our goal as a plan is to insure do all medically necessary services are available and if we have to pay more we will definitely consider that because that is our end goal nothing of that sort was implemented in this case by de vito or the patient rather what happened is to be done billed and accepted the contract rate of one hundred and twenty five percent of medicare and did no further following up of any appeal which it claims it has under the assignment exercise of the patient's appeal rights no request for a higher payment nothing the private cause of action is the unit as an extraordinary remedy in the context of the medicare is down to because it wh you say that scuse me where you say congress either does or does not provide a private right of action when it does it does and when it doesn't it doesn't i don't understand why it would be called an extraordinary  extraordinary in the sense that it would require a medicare payment to be required medicare to come in and step in and thereby hunter all of the purposes of the medicare is that in theory pay your act particularly where patients under a result and this isn't a risk the plan would have a variety of avenues to complain patient to page one of the plan identifies to the beneficiary all of the different remedies it has i feels there's been discrimination against them in any form it references to the office of civil rights it reference to the internal plan provisions there are a lot of remedies that are not exercised so the private cause of action we believe relates to that particular situation where men kara has to step in as well and foot the bill we also know that the the beneficiary in this case is alleged to have been switched to medicare because of all the threatened problems hanging over the head of the patient and i found the situation really puzzling here we have a situation rigged to be done bad and accepted payments for twenty months under the one hundred and twenty five percent medicare rate and thereby increased the alleged horrible patient to head off this kind of alleged discriminatory behavior before it became a problem on and to give the benefits for the patient instead what happened the v a that accepted the money that was paid and didn't ask for two or three i think would have seen if that was a true threat to it but it's huge amounts were waiting and would've rationally asked for relief which it did not do when rationally come out about medicare sooner this is the ers are deep patient they're not well they're having a lot of time spent in dialysis there are that care and they are they thinking likely of retirement they're thinking about and not trying to use any of the other of billable method of getting really we also note that the district court decided based on the medicare payment necessity it did not reach the standing issue delta did not need to it did not reach a lot of the other arguments that the plan presented but we do have noted and note again that we think the article three standing requirements are not met the type of threatened problem  considered an eminent threat and we offer it to you that we think article three standing is missing in this case with regard to any other questions that you might have again we offer in that the medicare secondary p your provisions in the manual offer a much more up to date a view of c m s is the notion that i marry medicare payments mistaken ones are required that they are for the notion that providers and beneficiaries will be expected to exhaust all coal action kinds of activities that were available to them you have to go pursue collection proceedings you don't want you to take care of the problem without medicare or something to get involved without there being a danger of medicare having to be involved that we operate here did not do any of those kind of regular collection activities at all it didn't belong down it's and i'll appeal didn't do anything of the or but we asked that you appear in the district court opinion requiring a medicare payment in order to bring the private cause of that is differentiation i would say that that's differentiation in any manner if you say everyone else they get they just you know we pay the full amount but for medicare you've got to balance greater part i'm sorry if you're medicare eligible because of yesterday you have to come and bomb and scrape and  separate appeal procedure even though we recognized as mr me said that you're sick and doing dialysis three times a week that's you know there's no statutory requirement they have to do that and i think it's unrealistic to expect that the patient should have to do that  secondly with respect to the medicare manual i just ask you to look at page seventeen of a reply brief because it simply doesn't support the sections that she read simply doesn't support it there are other portions of the plan that say people are noncompliance or failing to comply with the prohibitions on differentiation and taking into account and they don't say those supporters don't say anything about medicare having to pay for it and again i would point you to sound like a broken record fletcher mentioned that this circuit law on point and i just wanted to point out is specifically to six for which i think is the most on point simply isn't isn't it isn't on point and it isn't persuasive that is the biomedical applications  instructs when a primary plan violates that prohibition and differentiation and accordingly feels the paper treatment medicare may make a conditional payment for the treatment that's again to eighty six so they read to a exactly backward well or a private insurer to be liable under the private cause of action the private insurers responsibility to pay must be demonstrated e g by a prior judgment or settlement prior to the litigation unquote that's it page two hundred and seventy nine dollars and so they were facing a very different question and every statement they say is in response to that they say no you don't have to actually have to produce the judgement and they say you're liable if you if the plan fails to pay medicare stepson was sure that's enough that's sufficient for liability but that doesn't say anywhere that it's necessary and that's what judge white's concurrence says he says that quote a primary plan fails to pay in accordance with the one dollar and two dollars way when it terminates the plan holder's coverage and thereby induces oh i'm sorry types of standing st we have standing on our own behalf because they didn't pay the what they should have paid if they weren't taking medicare eligibility into account so they paid us less than they should of that is you know that is the from the the probably was brought in federal federal court that is and we were injured they paid us too little the other side is i think fully answered by springer vs cleveland clinic that case you know if you're if you're on the hook for balance billing you know much very helpful arguments from both coun