been overpaid for services provided the specific services are not relevant to today's cation and there is a mechanism in place a procedural mechanism in place to contest that determination of overpayment and to challenge the government on their recruitment process the problem with the system is that there is a five level step of appeal and after the nd level of appeal recruitment  physician is no longer paid for the services they render to medicare until medicare recoups all the money in this case several one million dollars were here before you today with a chip this case is a challenge of the due process a violation of due process based upon that system and mandamus action to require the agency to proceed in a manner consistent with the language  we would request true things based upon the writ if the amendment were to go forward and that is that the agency one proceed within the statutory time limit of providing and  the administrative level of appeal within ninety days and also they already busted that deadline right oh yes your honor could well get us a little but still it could be right now the such that i believe so you want to go to the head of a long no not specifically go to the head of the line rather every case be adjudicated within those ninety days as required by the statute i understand that and i believe and i'm certain you believe you are entitled to that but but you are obtaining that relief gets us into the realm of fantasy it's never going to happen they do not have the resources the thousands of these cases around the country i understand that honor and i don't so what is it did you want of from us that you think we might be able to do for you i think if i may the point you raise is very good however the statute says what the statute if if the agency can't meet that requirement goes back to congress and congress should rewrite the statute as the statute is written here today we're simply asking the court to interpret the statute the way it is and write understand that so what is it you want recruitment process until the agency is able to meet their requirement of adjudicating and giving us the administrative law hearing because what would this go back to clarify st you i said that it was not just for your client but you want all the cases so would you clarify are you asking for a mandamus on behalf of dr brawley and his medical group or for everybody who is in the recruitment process yes your honor both ok both the mandamus is the ministerial duty to adjudicate within ninety days that's the end so if the the nd point there have two different that you turi or regulatory provisions going here you have the hearing provision and then you have the recoupment provision and there's nothing  recoupment provision that says you can't recoup as things go along it says you know that they may begin recoupment as soon as you've resolved this request for a determination so it my concern with your argument is that you're trying to take a discretionary duty or one that's not mandatory with respect recoupment and glue it on to the hearing requirement and what's the authority that we would be able to do that well i think the issue there is the due process violation and that is that if i can't get the administrative hearing in time as the statute requires and as the legislature believes necessary by recouping you've essentially taken away my right to the administrative law hearing because by the time i get there in four to five years in a case like this where we're talking about millions of dollars that the doctor is going to be out of business you're done you're  taking away that opportunity for the administrative law proceeding is a georgia standing that under this administrative scheme you are entitled to any relief from the recoupment process a stay of it or extra extending the period or anything of that sort what's your understanding of how that works i believe your honor under it's right before a qualified independent contractor so the st and so once you get through that it's your position that level it's your position that recoupment becomes automatic correct your honor and so where are we now we are now see the qualified independent contractor that's around two after that you seek an alj a hearing you know where you now use your between two and three correct your honor and we'll be according to the backlog now four to five years before we get that hearing and what is not what you're asking here isn't that the subject of the d c litigation well i would say it is very similar to that your honor going to difference the only difference you know that what we're trying to do with the amendment would be entirely consistent with the d c action the only thing i'd say is i don't think the d c action really address this at the end they reached some sort of resolution that doesn't fully address what we're seeking here which is a state of recoupment well but that the difference is that your state of recruitment as i said before is glued on to this hearing component doesn't  there i agree with your honors i can't pull up a case that says this is been done in the past you can do this well can you make an argument that we have the authority to do a statute or a realization yes your honor then what i would argue is again a violation of the due process if i don't get that this as you're as you're suggesting would not allow us the general relief we're seeking from the mandamus because it is a major system systemic failure but in addition to that well wouldn't it allow you it wouldn't fix this problem within the medicare system so it's part of our relief is this mandamus requests and other words you want us to order the system to get fixed and that seems like a judge parker suggested a bit of a fantasy policy i mean it's like yes we'd like the social security system get fixed the medicare system a the roads i mean the list goes on ok yes i perhaps misspoke i'm sorry i don't mean to fix the system i was poor choice of words rather to require the statute be you know followed as it's written but that isn't that what the d c litigation in part or you remember that class member of a class where the court has ordered that the agency needs to expedite or comply with the statute correct yes but i think believe the resolution from that is going to be now it's going to be three to four years as opposed to forty five it's now in the d c litigation can the agency go here with recoupment i don't know about the specific claims there but i don't see why not if it's similar to that yes they could rec but the nothing would anything we preclude the agency they order your recoup and then lets it takes one hundred and eighty dollars days instead of ninety days there's nothing that would preclude the recoupment within that period correct i agree your honor but i know that that's i think the conundrum here is that their recruitment and as a standalone remedy they have great authority to do  that just object to that i mean it's a little bit like when the taxpayer has to decide on paying the taxes or how to how to contest the tax assessment you know the tax assessment is there and sometimes you just have to pay it and then go to court so you're not without a remedy correct what i would say to that your honor as the administrative long proceeding is essential to giving my client his rights to contest this action taken by the government when you recoup when you the government recoups before i get to that point i'm denied my due process of getting to that point and having that hearing your adversary says more than one time that you just simply have not exhausted your administrative remedies therefore we don't really have jurisdiction to hear you calling us what's your response to that my response would be your honor to look at the extent we as article three courts are part of it we're at the end of it you've got other administrative remedies you have not exhausted they say again i think you're referring to escalating this and i just don't think escalating this gives my client the relief in a reasonable manner that he's entitled to having to walk why because in all likelihood skipping the rd level the agency review of the administrative are i apologize your honor i don't know specifically who who within the agency what standards is someone entitled to a presumption of some sort or another by that time i mean the agency other are the findings that you owe this money entitle to some sort of presumption of correctness or something like that by it just seems to me that to come here and ask us to up in the system when you have a potential avenue which you could go for and then you could challenge maybe that avenue is insufficient or maybe they'll make a procedural or constitutional error that you really defeat the whole and ministry of system if you don't try to advantage yourself of an administrative avenue if i could add just at the end your honor to that let's say we did that and we went straight to court we went to the th level and then we went straight to court we're back we went to the th level what if you win yes your honor well i mean but you might win that's true your honor but if and then we'd be they wouldn't be all out of that's that's true that's a point i just don't understand from a client's point of us from as a composer from an abstract point of view why you wouldn't go and if you think you're right and these classifications are as you say in the government is wrong i don't know why you would want to roll your dice and say let's get this over with i would i would i believe that would be an inadequate opportunity because absent the hearing i haven't presented my evidence by experts this is a complicated issue of whether or not a it's more the th level is it is more of a written appeal this is almost like a legal question i mean you know but as to whether something falls but the written appeal doesn't mean that you're not going to be able to prove provide expert affidavits an expert information as to why your category is correct does  it i apologize and i'm not one hundred percent sure on that level of appeal i wasn't but when you call you can call witnesses at the here yes and you can have subpoena power you don't you call government witnesses know i don't think so let's hear from the government ok thank you thank you your honor and may please the court joshua salzman on behalf of h h s the district court correctly rejected plaintiff's mandamus claim as it was originally presented where he was seeking the relief of that koopman based on the alleged failure to follow the ninety day deadline as as the court correctly pointed out during the st part of this argument is the district court recognized there is a fundamental mismatch between gluing on a remedy that looks let's let's grant for a minute that mandamus might be a stretch but the problem that you have as far as i see is it's hard for me to think of a more powerful bull violation of due process than what you have here and the reason is there's a statutory scheme that requires that require r s are hearing within ninety days and the flipside of that coin is you can start prompt recoupment processes the way the system is fundamentally broken so as i hear it you are arguing that well we are still entitled to the recoupment remedy but we don't have to give them a the th amendment recognized in precedence like louder mail and like matthews versus the relevant question is only did they get notice and a meaningful opportunity to be heard now the way the scheme is set up an auditor comes in and identif potential overpayment here then not one but two independent reviewers come and check that prior to any recoupment at each of those two levels of review point if had the opportunity and indeed the obligation to put in any honor but i'm saying that a statute can provide more process than the constitution requires and he has access to to levels of proof that probation review coupled with access to post deprivation review because of that escalation mechanism the gold standard of post deprivation review would be judicial review and if he'd exercised his right to escalate he could have been in court he wants to hear it all when hearing doesn't always mean they're hearing can mean different things in different contexts it doesn't always unless the government chooses to appear that's forty two c f r four or five hundred and thirty centers here they can just simply not show up absolutely your honor and indeed in the majority of cases the government doesn't show up and there is no subpoena power over the government and he has no ability to cross examine witnesses that and that shouldn't be so surprising to the court because the way the system is set up all of the documents needed to establish whether or not he's entitled to payments should be in his possession he's under no obligation to develop and maintain records that show entitle me to payment and he can come forward with those records and by statute he was indeed required to come forward will he write our sport with records showing that this particular and makes arguments that this particular of vascular surgery procedure you know falls within the code to the government disputes that right yes or not and they presumably have what saying he has those experts or we have those experts well he's a guy he makes his presentation board arguing that his vascular surgery cool procedure fits in a category two what and your position is it fits in category one that that is what you carry with work so here's how this works at the st two levels of review he's entitled to come in with any evidence he wants including expert affidavits and any other material he wants to put into the and build that in ministry of record that's been reviewed independently by st an entity called the medicare appeals contractor that has independence and no financial stake in this and then the nd level reviews another contractor called the qualified independent contractor again they have the quote of the queue i see has access to physicians and the expertise and no financial state is going to issue a reasoned written decision so he's had a chance to build  this was in forcible three mandamus the th circuit in the cumberland county decision went the other way on that i don't think this court needs to decide it because either way the remedy he sought is really just not available because either he's seeking to enjoin something that the recruitment was i believe one of the ones that they ultimately sought the district the way the district court ultimately resolved that litigation was that congress eventually came forward with more funds and the agency was able to say that will be able if these this increased funding continues we'll be able to resolve the backlog by two thousand and twenty two and we are now under that mandamus order requiring us to fix the backlog by two thousand and twenty two it's the result of years of work by the  agency with innovative settlement mass settlement plans and various other initiatives and of course constantly going back to congress and asking for the more money once that finally came through we gave the district court a set of projections that said we can reduce the b set percentages over the next several years and ultimately resolve it by two thousand and twenty two we've been filing regular status reports with the d c circuit and are on pace to hit all of our target he doesn't want to wait that long then he would go to the department of people's board career white so he can go to he can escalate to the department appeals board and the other option he has which the district court noted was an independent reason to rule against him but he's never acknowledged if he can seek something called an extended repayment schedule if you look at footnote eight of the district court's opinion the court said that that was an independent grounds to reject the mandamus claim here now what the statute says that he paid to date so he has recouped because he's never even asked for an extended repayment schedule with the extended repayment schedule authorized on this question has he paid at this point any of that recruitment demand so i believe that some s all of the money has been recruited to date the way it works is generally the one hallmark i doze figures on in the record your honor i can tell you the way this normally works is that well as it doesn't really matter how it normally works we'll ask him because  st of all if he's asking for a mandamus to get recoupment and he's already paid that's a different sort of level an order of mandamus then if he hasn't paid wages stay against recruitment so so my understanding is that some but not all of the recruitment has occurred so far the way that works is that he's continuing he's still qualified medicare providers so when he puts in new claims some percentage of line and go to the department appealed or else he can exercise that right to escalate it and what happens when he gets there is the government doesn't have to show up and he can put in his written argument about why the government is wrong well  and if if he were to lose that he would then be able to appeal to the district court well st through the department of appeals board and then we already were and that is what we're talking about is how departmental appeal board  going on here you know you're here on behalf of the government saying well he didn't exhaust but he could go to the dam and then we ask you about the dad when you don't seem to know and we ask him questions about the procedures and he doesn't seem to know so let me ask you this if the government doesn't need to show up at the appeals board and he presents his written papers and then they decide however they decide can the government appeal from that is that a final administrative decision yes i believe that's the final decision of the agency and that the right to appeal is generally only exercised by by providers not by the government so he would then be able to appeal to district court or the district court yes is there any impediment if you chose could you go back to your office and call your people up and say recoup all the money  overpayment determination has been upheld by two steps we can recoup but he can also he has a statutory entitlement to seek an extended repayment schedule to spread that recruitment over a period of up to sixteen months and he's never even attempted to utilize that option so to the extent that he's saying that he can't ride out the wait until he gets a hearing he had a mechanism available to him he told the district court it was quote not unhelpful but he's never even tried t how that's how and how does this attachment kick in this percentage of withholding on his future payments is that statutory provision so though the regs the regulation that the statute at a high level authorizes the agency to to recoup overpayments then the regulations spell out in a little more detail but the precise mechanics of how that occurs but the statute also gives him as i said a right to spread that out over sixty months and if he would experience extreme hardship absent that kind of hour long if this percentage recruitment been going on i'm not entirely sure because at the time he fought more here on a motion to dismiss at the time he filed his complaint the complaint does not allege that any recoupment had yet occurred so a lot of the facts that your honour's are asking about really are in the record here because of the timing of how this litigation thirteen once you ask for it are you entitle toured or does the agency have discretion to do not hide or modify the requests i think the agency is under obligation to protect the medicare trust fund by recouping potentially overpaid clients subject to that extent it can you please but we don't have all day here just answer my question and answer the question i asked you and i apologize your honor if i wasn't responsive the agency understands itself to be under an obligation to collect potentially overpaid fines and accordingly it does so subject to that one alternative of the extended repayment schedule which would spread it over sixteen months what you have now as you understand it your agencies of thord the you can't say well are we won't recoup until you have you here but we don't believe that would be consistent with the statute that it says may that this to the statute does say may it's not just the medicare statute the agency construes the other background statutory principles including the federal claims collection act to apply here and accordingly that the agency is under an obligation once that overpayments been identified to listen to mr sloan i think i think i understand the the past y you are paid for far as you're concerned you you you want recoup recoupment he pays into you if he thinks you have demanding what more than you are entitled to then it's his but once that overpayments been upheld twice the agency wants to protect its interest in those funds by beginning to recoup them and he continued has that right to continue with it getting the merits of it both before the agency or  and ultimately in court or if he doesn't want to wait because of the backlog he can go straight to court but he's been given a right under the statute to have a hear he says i want to hearing at the hearing i think i can defeat all these claims that the government is make so again i would and the statute gives him a right but as a practical matter your agency does not give him here well the agency certainly can't give me hearing within ninety days now i would again emphasize the court the only  can't give him a hearing on any reasonable timetable correct i do agree with that i'd say within three years yes well i just give him an administrative hearing again he has access to a four day just let's not plots not play games we're talking clearly about a stage three hearing kind of hearing we we deal with all the time for example in the immigration cond we cannot give him that hearing within ninety days or anything close to ninety days at present that being said i want to emphasize again that the statute doesn't necessarily equate to what the due process clause requires the due process clause has a lower threshold at all it require look we just don't want to be bothered you can have or here just go to stage four you know here and we're talking in an individual case or we're talking the you're saying the agency has the relief would he be entitled to and that i think it's important to that hypothetical it depends whether or not we have the capacity to do it if you accept the american hospital association the d c circuit view of how this works and not the th circuit's of you under the  c circuits to opinions he has a right to demand that hearing and then if the agency has the capacity to give him that hearing the agency would be it would be appropriate i think to require the agency to do it but in the nd trip up to the d c circuit in the american hospital association that court recognized that an obligation necessarily needs to account for the agency's resources and what's possible and accordingly it gets an at present when the agency has a backlog of three hundred and twelve thousand or so appeals and just not the capacity to do it there is a limit to what can be demanded of the agency until it has a chance to work through this back off so i understand that the data choice came already almost contemplates says by saying if you can't get a hearing in ninety days we permit you to skip that and go to the next level absolutely your honor it contemplates it both for the escalation provision and for the extended repayment schedule thank you but i just have one other question what  i'm having trouble with and hopefully you can you can help me you know i'm i'm i'm a physician i have a good lawyer i think that if i get to hear are i can convince an adjudicator that my coding is correct i can call my experts i can put on testimony at the hearing to call into question the government's presentation to raise credibility issues to raise inconsistency issues to do all the kinds of things i can do a hearing can be enough is when it's going to turn on things like documentary questions of whether or not the particular records support support the claims being made there and while in some cases in these hearings maybe in some rare cases credibility would would potentially be an issue matthews versus alger it also says you don't look at the edge case to determine whether a life hearing is required you look at the general mind run of cases to say is this the kind of decision where it's so fundamental to d process that you need to be heard in person and that the mere opportunity to put in an expert a written expert report which which he had the opportunity to do at those st two levels or for you would it be sufficient why does the agency provide for hearings  stage but it's not necessarily a constitutionally required one the last thing i'd point out about these hearings is that this same review scheme isn't just used for these provider appeals the same for level structure followed by judicial review was used in some other what i'm going to give you some rebuttal time i know we took up a lot of your time with questions so we'll give him three minutes please i think your honor i just want to briefly come back and say i looked at the a case and it is confirmed with the counsel said it is novo review a hearing can be provided in the th stage to deborah view however according to the regulations it's only if there is an extraordinary question of policy or fact is it correct that you have not asked for any  relief from the recoupment process i believe that is correct the answering the questions you asked previously counsel just as a question i just asked to you have you asked for any relief from the recruitment process i do not know specifically what my client's office has requested in terms of what i do know is recruitment did take place and is ongoing and my client is after the record but my client continues has his business has suffered dramatically and he shut offices down and he's had to terminate people so the statute has a has a mechanism for it's not complete and whether it's adequate is is is another another issue but it does have a process for some relief from recruitment and i take it that you have not pursued there in my experience your honor and dealing with medicare is the five years that was represented is very rarely i've never seen that it's typically eighteen months interest continues to accrue as you call that sort of says well so we want to ask at all no i mean i'm just saying no that is the issue with stopping recruitment or delaying it or not stopping it but rather this payment plan it's discretionary with medicare and it does not always result in any real relief for the provider i mean two million one  dollars over three years verses all together can be just as devastating to the provider amir's paperwork is what is in control and your client has an obligation  to to do the paperwork doesn't he and can detail from his records whether he's been paid sufficiently uncanny submit whether he's been from paperwork without a hearing based on own  paper and frankly the st two appeals are in my experience relatively unhelpful to the provider the st level of appeal i would not call it independent it's done by the mac but the mac is the entity that made the overpayment in the st place so the st level of appeal in my experience rarely changes anything especially in a complicated case like this in a very simple case where there's a paper issue or a clerical issue that may be beneficial the nd level is a qualified independent contractor but it isn't independent the way we would like to think they look at the paperwork you give them and they make decisions they're not part of the mack that made the initial determination but it isn't like a hearing where you present you know your your evidence with the expert witness in this particular case you have a very complicated procedure that is relatively new that in our opinion from the provider fits very nicely within the c p t code but medicare after years of paying this is determine no a local coverage determination on this particular type of procedure at an earlier stage and then ultimately later on started determining made a conscious effort and i know this because we represented a number of clients who of dealing with this just all of a sudden decided that this c p t code doesn't cover this procedure and is when when these are reviewed is the deference to the agency as to which box the procedure fits in the the st two levels of appeal yes i don't know that there is any specific requirement that they need to give deference your honor but i think that the st level of appeal is to if i were to characterize the st level appeal as a checking of the box