[00:00:00] Speaker 00:
Case number 16-5234, NAP Medical Center at all, Appellants versus Thomas E. Price in his official capacity as Secretary of Department of Health and Human Services at all.

[00:00:15] Speaker 00:
Mr. Ayers for the Appellants.

[00:00:18] Speaker 00:
Mrs. Lopez for the Appellee, Thomas E. Price.

[00:00:21] Speaker 00:
Mrs. Scarborough, Appellee, Doctors of Renaissance.

[00:00:25] Speaker 02:
Mr. Ayers, good morning.

[00:00:33] Speaker 01:
May it please the court, my name is Mark Ayers, and along with my partner, Greg Marshall, we represent the Appellants, Knapp Medical Center, McGowan Hospitals, and Cornerstone Regional Hospital, with the plaintiffs in the action below.

[00:00:44] Speaker 01:
This action is a judicial challenge to the determination made by the Secretary, in particular CMS, to grant the request of Doctors' Hospital at Renaissance to expand its current 551-bed hospital by 100%.

[00:01:00] Speaker 01:
Under the Affordable Care Act, such expansions by physician-owned hospitals are generally prohibited.

[00:01:06] Speaker 01:
But in that same act, Congress directed the agency to establish an expansion exception process by which CMS could grant exceptions to that prohibition under very specific requirements that Congress set forth in addition to other requirements that the agency might set forth pursuant to its rulemaking authority.

[00:01:27] Speaker 01:
Congress directed, and we think this is important, that that process be established and be ready to implement by February the 1st, 2012.

[00:01:35] Speaker 01:
And before the agency, the appellants responded that DHR did not satisfy the specific necessary requirements, for an exception.

[00:01:45] Speaker 01:
Nonetheless, the agency granted DHR's request.

[00:01:48] Speaker 05:
Can I ask a very basic question?

[00:01:51] Speaker 05:
What's the jurisdictional grant here?

[00:01:54] Speaker 05:
Why should we be hearing this case?

[00:01:56] Speaker 05:
What's the jurisdiction you've pled?

[00:02:01] Speaker 01:
We have pled the general jurisdiction over judicial review of a final agency decision under the APA as being arbitrary and capricious and not otherwise important.

[00:02:15] Speaker 05:
Your subject matter of jurisdiction, what's your theory?

[00:02:19] Speaker 01:
Our theory is that there's no preclusion to, I mean, other than, I mean... Are you here under 1331?

[00:02:27] Speaker 05:
Is this a federal question?

[00:02:28] Speaker 01:
It is, Your Honor, yes.

[00:02:31] Speaker 05:
But now you've raised the potential statutory bar for the judiciary.

[00:02:36] Speaker 05:
Could you address that?

[00:02:37] Speaker 01:
Yes.

[00:02:38] Speaker 01:
I'm sorry I wasn't exactly stretching where you were interested, but yes, that is a federal question because we are claiming that you did not follow these very specific guidelines that are enshrined in federal law.

[00:02:53] Speaker 01:
The district court, when it dismissed the action, it did so based on, as Your Honor pointed out, the judicial review provision at issue here, which on its face bars only challenges to the process, which is what it says, and does not expressly mention any bar of a challenge to any particular determination made.

[00:03:16] Speaker 05:
That's parsing it pretty thin, isn't it, to say the determination is not part of the process?

[00:03:21] Speaker 01:
Well, actually, Your Honor, we do not, we don't think so.

[00:03:25] Speaker 01:
And this is one of the problems that's been in this case from the outset, is that the appellees have essentially started with the presumption that process includes individual determinations made under that process.

[00:03:40] Speaker 01:
But that's by no means a necessary implication at all.

[00:03:43] Speaker 05:
And in fact, we believe... But you wouldn't challenge the idea that the determination can't be challenged, right?

[00:03:51] Speaker 01:
Well, we are challenging the determination, and that's what this is.

[00:03:56] Speaker 05:
And the question ultimately is, does process in the judicial review provision include, necessarily include... I'm sorry, so your challenge is that, your theory, the way you try and understand this statute is that you're challenging

[00:04:12] Speaker 05:
The process went amiss somehow.

[00:04:15] Speaker 05:
Is that right?

[00:04:15] Speaker 05:
Or what's the determination?

[00:04:17] Speaker 01:
I'm sorry.

[00:04:17] Speaker 01:
We're challenging specifically the CMS's determination as to whether DHR is entitled to an exception.

[00:04:26] Speaker 01:
The challenge is truly a fact question.

[00:04:28] Speaker 01:
It's a fact fight about statistics and so forth, but only applies to these two parties.

[00:04:34] Speaker 01:
And so would have no impact.

[00:04:36] Speaker 01:
There's absolutely no challenge.

[00:04:37] Speaker 05:
I'm trying to understand how you get before us in the light of the statute that says you can't, there's no administrative or judicial review of the process, right?

[00:04:48] Speaker 01:
Yes, Your Honor.

[00:04:49] Speaker 01:
Well, we start with this analysis to get to answer that question with the strong presumption, as this Court and the U.S.

[00:04:55] Speaker 01:
Supreme Court have said many times, that Congress did intend judicial review of individual determinations.

[00:05:02] Speaker 01:
That's before we get to the statute.

[00:05:04] Speaker 01:
That's where we start.

[00:05:06] Speaker 01:
that that that's what you have the statute yeah that's right but the current statute and so help me understand that you get around the statute why the statute doesn't well be out of the court because it did it under that presumption what the burden for the apple leaves because they're the ones raising the judicial bar is to demonstrate clear convincing evidence not that it's reasonably possible to read it to encompass individual determinations

[00:05:31] Speaker 01:
but clear and convincing evidence that Congress... I want to know how you read it.

[00:05:34] Speaker 05:
I look at it and I see you can't challenge the process and that seems, it's surprising to me to learn that the results of the process are not part of the process.

[00:05:46] Speaker 05:
Help me understand.

[00:05:47] Speaker 05:
Absolutely.

[00:05:48] Speaker 01:
Although it's important to remember, I mean, we see our burden as, as long as it's a reasonable interpretation under the statute.

[00:05:56] Speaker 05:
Your burden right now is to answer my question about how determination is not part of the process.

[00:06:02] Speaker 01:
All right.

[00:06:02] Speaker 01:
Well, we would say, first of all, process in the natural reading of it refers to procedure.

[00:06:08] Speaker 01:
That would be, that's kind of the root of the word process.

[00:06:11] Speaker 06:
Isn't it the more normal way of

[00:06:15] Speaker 06:
to say that review procedure is precluded?

[00:06:22] Speaker 06:
Well, the process suggests to be something going beyond, in some way, maybe it's beautiful what way, going beyond pure procedure.

[00:06:32] Speaker 06:
It depends on the context, of course.

[00:06:34] Speaker 01:
Exactly.

[00:06:35] Speaker 01:
And we think that context, your honor, is very important.

[00:06:38] Speaker 06:
We think that in the context here points towards your narrow reading process.

[00:06:43] Speaker 01:
Well, your honor, and of course, this court and the Supreme Court says that we are to read these judicial review provisions narrowly.

[00:06:50] Speaker 01:
That's that's that's very clear.

[00:06:51] Speaker 01:
But I would point to that doesn't sweep all context and all language.

[00:06:55] Speaker 01:
Not at all.

[00:06:56] Speaker 01:
And we think that the direct context here, contrary to the appellee's assertions, that Congress did not define what they meant by process, we think they absolutely did right there in the statute.

[00:07:08] Speaker 01:
And when they did that, that's 1395 NNI 3A.

[00:07:13] Speaker 01:
And it even gives a separate heading entitled Process.

[00:07:18] Speaker 02:
Well, let me ask you this.

[00:07:19] Speaker 02:
Before we get to context, let's look at the language.

[00:07:21] Speaker 02:
It's just not process.

[00:07:23] Speaker 02:
It's process under this paragraph.

[00:07:26] Speaker 02:
And I read paragraph to refer to A, I mean to three, which has six paragraphs, A, B, C, D, through,

[00:07:41] Speaker 02:
clarification, or through, I'm sorry, through G. Because if you look at the limitation on review, it says or otherwise, of the process under this paragraph.

[00:07:57] Speaker 02:
Now, it can't be that A is the paragraph referred to, because I, which has the limitation on review, is a

[00:08:10] Speaker 02:
in perimateria, whatever, a subparagraph.

[00:08:13] Speaker 02:
And A is the paragraph they're talking about, which has not only, unfortunately, A, which is denominated process, but B, C, D, all the way through, which does set out what the eligible hospitals are, the two classes, the data, and so forth.

[00:08:32] Speaker 02:
The only problem with that reading, because I do think you have to give meaning to under this paragraph, is to figure out what paragraph they're talking about.

[00:08:42] Speaker 02:
And then, unfortunately, they use process to mean something more limited as well.

[00:08:51] Speaker 01:
Well, Your Honor, I don't know that there's any clear and convincing evidence that they use process.

[00:08:55] Speaker 02:
Well, what do you think under this process, under this paragraph refers to?

[00:08:58] Speaker 01:
I don't know that there's really been any dispute, Your Honor, that under this paragraph, it's referring to this.

[00:09:05] Speaker 01:
A rather than three?

[00:09:08] Speaker 01:
Well, that it encompasses, when it says the process, it's referring to exactly what it had just defined above the process.

[00:09:16] Speaker 01:
It would be, we think.

[00:09:18] Speaker 02:
But it says under this paragraph,

[00:09:22] Speaker 02:
And it can't be, paragraph can't refer to A because under this paragraph would mean under I. Your Honor, I don't know that under this paragraph again,

[00:09:39] Speaker 01:
is the determinant factor.

[00:09:40] Speaker 01:
I think ultimately the question here is the process.

[00:09:45] Speaker 06:
Another way of putting Judge Henderson's question is here is this thing at the end of the sort of accumulation of subsection three, sub sub subsection three.

[00:10:00] Speaker 06:
And it seems an odd way to confine

[00:10:04] Speaker 06:
review of process, which is entirely in capital A, put that at the whole end of subsection three.

[00:10:17] Speaker 06:
Doesn't it?

[00:10:19] Speaker 06:
It just seems a peculiar place.

[00:10:23] Speaker 06:
No, if all they want to do is preclude review of the procedure.

[00:10:30] Speaker 01:
Well, my time has expired.

[00:10:32] Speaker 06:
You're always allowed to answer a question if you have an answer.

[00:10:35] Speaker 01:
Right.

[00:10:36] Speaker 01:
Well, Your Honor, I don't know that that placement, again, what we're looking for is clear and convincing evidence as to what Congress intended, whether they intended to limit

[00:10:48] Speaker 01:
something broader does process actually include individual determinations.

[00:10:53] Speaker 01:
I don't know that the placement of the paragraph

[00:10:57] Speaker 01:
can subsume the whole question about what, when they specifically call something process, here's the process, we want this process to be established and put forth, and then down here it says, we don't want any review of the process.

[00:11:14] Speaker 01:
I think the only reasonable interpretation is to say, well, that's the process that they just defined clearly as a set of procedural steps in the provision above.

[00:11:24] Speaker 02:
Okay, we'll give you some time in reply.

[00:11:28] Speaker 02:
This is Lopez.

[00:11:42] Speaker 07:
Sorry, it takes me a while to get this down to my height.

[00:11:46] Speaker 07:
May please the court, Carolyn Lopez, on behalf of the government.

[00:11:49] Speaker 07:
We agree that Congress used the term process under this paragraph as a statutory term of art that sweeps in everything that's been described in paragraph three.

[00:12:03] Speaker 07:
And paragraph three includes absolutely everything in the exception application process.

[00:12:08] Speaker 07:
And so that begins in subparagraph A, which we've just been talking about, and that's

[00:12:15] Speaker 07:
It sounds like you're all very well versed and don't need to look back at the particular statutory language.

[00:12:20] Speaker 06:
It is a fair point, isn't it, that the process here could be a cross-reference to a process in capital A.

[00:12:31] Speaker 07:
It cannot be so limited to the process in subparagraph A because it says not process under subparagraph A. It says process under this paragraph.

[00:12:41] Speaker 07:
And process under this paragraph means process under paragraph three.

[00:12:46] Speaker 07:
And that, for example, is in contrast to other places in the statute where they do cross-reference process under subparagraph A. So in the Proclusion of Review provision, they use the broader process under this paragraph.

[00:12:58] Speaker 07:
And process under this paragraph means paragraph three.

[00:13:01] Speaker 07:
And if we walk through the scope of paragraph three, remembering that the preclusion of review paragraph comes at the very end and sweeps in everything that was discussed before, in subparagraph A, so we're at the bottom of plaintiff's addendum 4A to 5A,

[00:13:21] Speaker 07:
So at the very top of 5A, for example, the process includes both, quote, instructions that the secretary shall promulgate regulations to carry out the process.

[00:13:33] Speaker 07:
And so just to pause there, regulations and process can't be completely coterminous.

[00:13:38] Speaker 07:
It's got to mean something different.

[00:13:41] Speaker 07:
And then the secretary also has to be ready to implement those regulations.

[00:13:45] Speaker 07:
And then if we flip all the way to plaintiff's addendum 7a, subparagraph h, which is in the middle of that page, refers to as part of that overall process that's being described in paragraph 3,

[00:13:58] Speaker 07:
refers to the publication of final decisions.

[00:14:01] Speaker 07:
And so that makes crystal clear that the process of applying for exceptions and being either granted or denied those exceptions that's been described over paragraph three includes as well that final decision is the final step of that process.

[00:14:14] Speaker 05:
If you're right, what remedy is there for someone who has been mistreated?

[00:14:22] Speaker 05:
A hypothetical, I'm imagining a hypothetical where an applicant has been unlawfully denied, in extension.

[00:14:30] Speaker 05:
What are they supposed to do?

[00:14:32] Speaker 07:
Congress has weighed the costs and benefits of allowing any sort of more input into the process and the opportunity for both the applicant and those in the community to comment on that particular application, and Congress decided, and it makes sense here,

[00:14:47] Speaker 07:
Congress decided that once CMS has actually made that determination under the process with that opportunity for a comment and back and forth, that the cost and benefits balance out so that it makes sense for there to be no additional judicial or administrative review of that decision.

[00:15:02] Speaker 04:
No due process claim, no alter virus claim.

[00:15:08] Speaker 07:
To be clear, there's no true due process claim, no due process claim, no ultra-virus claim here.

[00:15:17] Speaker 05:
I'm talking about just trying to understand how the statute works.

[00:15:20] Speaker 07:
No, the government is not arguing that if there were a true constitutional claim that isn't sort of just a dressed up garden variety APA claim that this would preclude review in those cases.

[00:15:31] Speaker 06:
And ultra-virus, to follow up that aspect of Judge Griffith's question.

[00:15:35] Speaker 06:
What about a claim that the decision was off the virus?

[00:15:40] Speaker 07:
Again, I just want to make very clear here that there's no such claim that this fits into that narrow category of ultra-various decisions, ultra-various actions, and the government is not arguing that in the very limited circumstance in which there were truly ultra-various action, there may be some non-statutory review.

[00:16:01] Speaker 07:
But as the district court correctly found here, that's just not an issue in this case, and the court doesn't need to decide that here.

[00:16:08] Speaker 02:
Are you differentiating between some entity like DHR, which is the actual applicant being denied an application, and NAP, which is just challenging the grant of the application?

[00:16:25] Speaker 02:
Are you just differentiating?

[00:16:28] Speaker 07:
No.

[00:16:29] Speaker 07:
So the preclusion of review would apply both, whereas here, to disappointed competitors, which makes sense.

[00:16:35] Speaker 07:
It prevents litigation delays once CMS has made a decision.

[00:16:38] Speaker 07:
But it also would apply to a disappointed applicant.

[00:16:43] Speaker 07:
And that, too, makes sense of the statutory structure, because once CMS has made a decision about a particular application, there's a two-year moratorium on being able to apply again.

[00:16:53] Speaker 07:
And so that, too, indicates that Congress really meant to leave it in CMS's.

[00:16:58] Speaker 07:
hands and not to allow litigation delays, one way or the other, once a decision's been made.

[00:17:02] Speaker 07:
If there are no further questions, the government rests on its briefs.

[00:17:09] Speaker 07:
All right.

[00:17:09] Speaker 02:
Thank you.

[00:17:11] Speaker 02:
Mr. Scarborough?

[00:17:20] Speaker 02:
Do you agree if your client had not got the exception, you'd have no judicial review?

[00:17:26] Speaker 03:
Yes, Your Honor, we would be a river without a paddle at that point.

[00:17:31] Speaker 03:
Your honor, I'm here on behalf of Appellee Intervenor Doctors' Hospital at Renaissance.

[00:17:37] Speaker 03:
Judge Williams, I wanted to address the question that you raised to my colleague about what is the context for this no-proclusion review.

[00:17:45] Speaker 03:
And the context is this, that when a patient needs advanced trauma care, every minute matters.

[00:17:51] Speaker 03:
And unfortunately for people who live in underserved, medically underserved areas, they don't always have access to the care that they need.

[00:17:59] Speaker 03:
And trauma patients, particularly those in South Texas, have to travel great distances to get the care.

[00:18:06] Speaker 03:
And that can have life or death consequences.

[00:18:08] Speaker 06:
But you answered affirmatively to the question, Judge Henderson, that if your application had been denied, you wouldn't have a chance.

[00:18:18] Speaker 06:
So those trauma patients would be out of luck.

[00:18:22] Speaker 03:
That is correct, Your Honor.

[00:18:23] Speaker 03:
But because we met the statutory criteria that Congress laid out, and Congress made a very... Well, that's assuming a conclusion that we cannot assume.

[00:18:34] Speaker 03:
Well, Your Honor, under the statutory regime that Congress set out, it said there would be no expansion unless you met certain qualifications for an exception.

[00:18:48] Speaker 03:
Congress made it clear, though, that in order to speed care to these areas, that those decisions, good, bad, or otherwise, would not be subject to review.

[00:18:57] Speaker 03:
And it made clear when it used the word not just process, but it also talked about the establishment of the process.

[00:19:04] Speaker 03:
Congress made it clear that there was a two-pronged approach.

[00:19:07] Speaker 03:
So in phase one, Congress indicated that that process had to be established.

[00:19:13] Speaker 03:
Regs had to be promulgated by the beginning of 2012.

[00:19:18] Speaker 03:
But where we part ways from appellants

[00:19:20] Speaker 03:
is we don't believe that Congress's desire to avoid delay and to make sure that care was given to needed areas suddenly stopped at February of 2012.

[00:19:31] Speaker 03:
Because the instruction in the statute was to implement and carry on into the present, off into the future, this process.

[00:19:40] Speaker 03:
The process includes

[00:19:42] Speaker 03:
both the application as well as carrying all the way through to the final decision.

[00:19:47] Speaker 03:
And we know that, as my colleague just pointed out, because subsection H of this paragraph refers to the final determination that would be published.

[00:19:57] Speaker 03:
And that's why when Judge Collier below was addressing these questions, she looked to the guidance that came from Texas Alliance and from Florida Health Sciences and realized that you could not separate the decision that was reached from the process that was followed to reach that decision.

[00:20:15] Speaker 06:
In some respects, we do.

[00:20:17] Speaker 06:
There's some cases where a party's chance to challenge procedures, for example, by which the regulation was adopted and passed, but the party is nonetheless able to challenge the substance of decisions emerging from this by hypothesis possibly detective process.

[00:20:44] Speaker 03:
Your Honor, when Congress laid out the provision here, they said there would be no administrative or judicial review.

[00:20:51] Speaker 03:
And the reason why we know that this ultimately applies to every step along the way, including the final decision, is because there would have been no reason to even talk about precluding administrative review of the process and the establishment of the process.

[00:21:06] Speaker 03:
because an agency can never review the establishment of its process.

[00:21:11] Speaker 03:
It goes through a normal notice and comment rulemaking, and then that process is established.

[00:21:17] Speaker 03:
There's never an administrative review of that piece of it.

[00:21:22] Speaker 06:
I noticed that argument, but I honestly didn't get it because it seemed to me that the fault with the agency can't be itself.

[00:21:33] Speaker 06:
If we're talking about a decision made at the top level in the agency, substantive, procedural, whatever, there's no possibility of the agency reviewing it.

[00:21:46] Speaker 03:
could reconsider it, I guess.

[00:21:49] Speaker 03:
Obviously, there would be the possibility for reconsideration.

[00:21:52] Speaker 03:
And the appellants in this case went outside the process to actually submit additional comments and rebuttals to the response that Doctors' Hospital provided.

[00:22:05] Speaker 03:
Taking all of that into account, the secretary on behalf of CMS reached a decision.

[00:22:10] Speaker 03:
And that decision is not, Congress made it clear that it's not subject to second guessing and review.

[00:22:16] Speaker 03:
We raised a separate argument that I won't get into just because of my limitation on time with regard to standing.

[00:22:23] Speaker 03:
But we believe that even if there were a judicial review available here, that the appellants lacked the standing that would be permissible to bring this claim.

[00:22:33] Speaker 03:
And we'll rest on the papers for that unless there are other questions.

[00:22:37] Speaker 02:
I have one.

[00:22:37] Speaker 02:
You don't cite Monmouth Medical Center.

[00:22:40] Speaker 02:
Are you familiar with that holding from our court that Judge Williams wrote?

[00:22:45] Speaker 02:
Unfortunately, I'm not, Your Honor.

[00:22:47] Speaker 02:
All right, well, it has to do with whether mandamus would be, if you were a disappointed applicant, whether mandamus would be available to you.

[00:22:56] Speaker 02:
It's very specific on its facts.

[00:23:00] Speaker 03:
Unfortunately, I haven't reviewed that.

[00:23:02] Speaker 03:
But generally speaking, with regard to the availability of mandamus in this circumstance, the no review provision that Congress provided

[00:23:12] Speaker 03:
includes the language or otherwise, which arguably would encompass and sweep in the mandamus issue with regard to no revere.

[00:23:22] Speaker 03:
We do agree, though, that if the agency had acted ultra viris, that that is the safety valve here, that there would always be the ability of a court to come in and check an agency that is acting without any authority.

[00:23:38] Speaker 03:
Thank you.

[00:23:42] Speaker 02:
All right, why don't you take a minute.

[00:23:45] Speaker 01:
Thank you, Your Honor.

[00:23:47] Speaker 01:
Just a couple of quick points.

[00:23:48] Speaker 01:
First, just as a meta point, under the Kukana decision, the Supreme Court's Kukana decision, and this is consistent with this court's decisions as well and Texas Alliance and Florida Health, if what it comes down to is a battle between reasonable competing interpretations, then you must adopt that interpretation that allows for judicial review under the strong presumption.

[00:24:09] Speaker 01:
And we would assert that it is not the lesson of Texas Alliance and Florida Health that you can never separate the process from the ultimate decision.

[00:24:17] Speaker 01:
That depends on how it's written.

[00:24:19] Speaker 01:
What Texas Alliance and Florida Health say is that when you have, first you look at the nature of the challenge, and if that type of challenge is not expressly mentioned in the judicial review provision, like financial standards were not expressly mentioned in Texas Alliance or data was not expressly mentioned in Florida Health,

[00:24:39] Speaker 05:
What is the type of challenge that you imagine is not permissible under this provision?

[00:24:48] Speaker 01:
The type of challenge would be challenges to the face of the process.

[00:24:51] Speaker 01:
There's any number of those that could be brought.

[00:24:53] Speaker 01:
The various elements of the process, the timing standards, the filing requirements, so forth.

[00:24:59] Speaker 01:
the time for rebuttal, various other components are arbitrary and capricious, don't give enough time, they're based on the wrong data.

[00:25:08] Speaker 01:
There's any number that you could bring to the face of the process.

[00:25:11] Speaker 01:
There's also any number of challenges that you could bring to the establishment of the process.

[00:25:15] Speaker 01:
It wasn't done properly under the notice and comment rules of the APA.

[00:25:19] Speaker 01:
So those distinctions are well established and not a problem.

[00:25:22] Speaker 01:
With regard to the administrative question that, well, the statute also precludes administrative review and that seems superfluous.

[00:25:32] Speaker 01:
As we said in our briefs, well, even if there is not generally an agency reviewing its own rules, for example,

[00:25:42] Speaker 01:
That doesn't preclude anything, as this court said in Florida Health.

[00:25:47] Speaker 01:
Oftentimes, Congress uses language that is technically unnecessary in order to make assurance double-sure.

[00:25:53] Speaker 01:
And here, there's any number of reasons why Congress might have also said administrative in the judicial review provision.

[00:26:00] Speaker 01:
It might have wanted to make sure that everyone was on notice.

[00:26:03] Speaker 01:
Don't try to get creative.

[00:26:05] Speaker 01:
Don't bring something in front of the agency challenging the process because we are very concerned that that process be set in stone as of February 1st, 2012.

[00:26:12] Speaker 01:
We don't want any question marks regarding that.

[00:26:15] Speaker 01:
People can be very creative.

[00:26:16] Speaker 01:
They can file whatever they want, as we all know.

[00:26:18] Speaker 01:
Also, they might have wanted to capture any future possible statutory avenues that might come along that would allow an administrative review.

[00:26:27] Speaker 01:
of such a rule or procedure.

[00:26:31] Speaker 01:
And furthermore, in the judicial review provision itself, there's evidence that Congress is simply speaking broadly, even though using technically unnecessary terms, its reference to 1395FF and 00.

[00:26:44] Speaker 01:
That has to do with appeals from individual benefits determinations under Medicare and service provider reimbursements.

[00:26:53] Speaker 01:
there's no possible way that an expansion exception could fit under either of those.

[00:26:58] Speaker 01:
And so there was absolutely no need for Congress to use that language either.

[00:27:02] Speaker 01:
But as far as the paragraph is concerned, if you look at the different components of the statute, each one references the process.

[00:27:08] Speaker 01:
So when it talks about under this paragraph, we believe that's talking about the whole of paragraph three.

[00:27:14] Speaker 01:
But that doesn't mean that the process

[00:27:16] Speaker 01:
is not, in fact, the process.

[00:27:19] Speaker 01:
It's the process and the various components of it.

[00:27:23] Speaker 01:
But there is a clear distinction between an attack on the process and an attack on the determination, which is that we assert that our interpretation of this is more than reasonable.

[00:27:32] Speaker 01:
And ask this court reverse the trial force decision.

[00:27:36] Speaker 01:
Thank you.

[00:27:36] Speaker 01:
Thank you.