[00:00:00] Speaker 01: case number 21-5186. [00:00:03] Speaker 01: Recue LLC appellant versus United States Department of Health and Human Services et al. [00:00:09] Speaker 01: Mr. Panuccio for the appellant, Ms. [00:00:11] Speaker 01: Utrecht for the appellees. [00:00:15] Speaker 03: Good morning, counsel. [00:00:16] Speaker 03: Mr. Panuccio, please proceed when you're ready. [00:00:19] Speaker 00: Good morning. [00:00:22] Speaker 00: May it please the court, Jesse Panuccio for appellant. [00:00:25] Speaker 00: I'd like to reserve one minute for rebuttal if possible. [00:00:29] Speaker 00: This case [00:00:30] Speaker 00: concerns the urgent need for life-saving ICU doctors as the COVID-19 pandemic continues to overwhelm hospitals across the country. [00:00:41] Speaker 00: Medicare's refusal to pay for Riku's ICU telehealth services is causing great harm and rests on a legal error. [00:00:50] Speaker 00: The key question in this appeal is whether Riku can challenge that legal error in federal court. [00:00:56] Speaker 00: I'd like to start with three undisputed facts about jurisdiction. [00:01:00] Speaker 00: First, the Supreme Court has explained that there is a strong presumption in favor of judicial review of causes of action arising under the Medicare Act. [00:01:11] Speaker 00: Second, the government concedes that RICU has a cause of action arising under the Medicare Act. [00:01:18] Speaker 00: Third, the government concedes that RICU cannot itself access the channels of administrative review established by agency regulations. [00:01:28] Speaker 00: Accordingly, the question is, how does RICU get its claim arising under the Medicare Act into federal court? [00:01:36] Speaker 00: HHS's eight-month, multi-layered, and intricate, but ad hoc process of determining whether RICU services qualify for Medicare reimbursement was sufficient to satisfy the Medicare Act's channeling path to federal jurisdiction. [00:01:52] Speaker 00: And if it wasn't, then federal question jurisdiction must be available. [00:01:58] Speaker 00: I'll turn first to the question of jurisdiction through channeling. [00:02:03] Speaker 05: Section- Before you go there, can I just ask you about, just as a factual matter, I understood that the rule, the HHS rule, expanded coverage for certain kinds of telehealth services as a sunset provision. [00:02:18] Speaker 05: Am I right about that and that the rule is, or this aspect of it is supposed to expire by the end of the year? [00:02:26] Speaker 00: Yes, the waiver for ICU telehealth the end of the year, or the end of the public health emergency, I believe, whichever is later. [00:02:33] Speaker 00: So, the way this traditionally works, there are certain telehealth services that are reimbursable by statute. [00:02:39] Speaker 00: And then the agency is authorized by rule to add services to that list of the telehealth list. [00:02:48] Speaker 00: They call it. [00:02:48] Speaker 00: And when the pandemic began, there had been many proposals over the years to add ICU telehealth services. [00:02:55] Speaker 00: The agency had rejected those over the years. [00:02:58] Speaker 00: But when the pandemic began and there was this urgent need for increased coverage in ICUs and also safety concerns about telehealth being safer for transmission from patients to doctors and so forth, they greatly expanded the list of what was [00:03:14] Speaker 00: payable by Medicare in telehealth, ICU is included. [00:03:18] Speaker 00: Now, they have put ICU telehealth on a sort of a special category saying we think there may actually be evidence to continue this in the future, but we'll see what experience. [00:03:29] Speaker 05: But they haven't done so. [00:03:30] Speaker 05: So do we have a potential mootness problem if this provision sunsets by the end of the year? [00:03:38] Speaker 00: Well, again, I think the unfortunately with the Omicron variant and [00:03:42] Speaker 00: potentially other variants, I think the public health emergency is ongoing. [00:03:45] Speaker 00: So there's no mootness right now. [00:03:47] Speaker 00: And also all of the services that have been rendered this year, if the if the agency's determination were not in place, those would be payable claims that are accruing right now. [00:03:56] Speaker 05: I see. [00:03:57] Speaker 05: Thank you. [00:03:58] Speaker 00: Thank you, Your Honor. [00:03:59] Speaker 00: So if I may turn specifically to this question of jurisdiction through channeling, this happens through Section 1395-II of the Medicare Act, which incorporates Section 405-G of the Social Security Act, a complicated statutory scheme, but sort of a simple path to jurisdiction. [00:04:17] Speaker 00: And that is, 405-G says, any individual is entitled to judicial review of any final decision of the secretary made after a hearing to which he was a party. [00:04:28] Speaker 00: Here, HHS provided that hearing and final decision to Riku through its eight-month process, according to the agency's own descriptions of that process while it was going on. [00:04:40] Speaker 00: They told Riku they were, quote, actively investigating Riku's claim. [00:04:45] Speaker 00: They said they were working to resolve the extremely complex set of legal issues. [00:04:49] Speaker 00: They asked Riku to provide the agency with a legal brief, which they then, quote, reviewed carefully to provide a final response. [00:04:58] Speaker 00: They put what they called their answers and their response through, and this is quote, a detailed clearance process. [00:05:05] Speaker 00: And then on June 10th, 2020, they said they had conducted quote, an exhaustive review to determine the agency's position on this, what they called an important matter. [00:05:17] Speaker 00: And that was again, the June 10th letter. [00:05:18] Speaker 03: Riku then appealed that- Can I just understand the architecture of your argument? [00:05:22] Speaker 03: So for purposes of this part of your argument, I take it that even if Riku were an entity, [00:05:27] Speaker 03: that itself could then bring a claim later. [00:05:31] Speaker 03: Um, I know part of your argument is that Rico can't and it's not enough to go through proxies, but let's just suppose that you could. [00:05:36] Speaker 03: And your argument would be that even if we could and we could seek reimbursement for a specific payment, then we don't have to do that as long as we engage in this kind of anticipatory back and forth about the way a higher level policy decision operates. [00:05:54] Speaker 00: The it's really up to the agency as the Supreme Court said in selfie and as the 7th circuit said in bully and then as the Supreme Court said again 2 years ago in Smith. [00:06:04] Speaker 00: The hearing process is the problem is whatever process the agency decides upon now it may have processes that it establishes through regulation and it can sit insist on those processes if somebody is eligible for them, but it can also say [00:06:18] Speaker 00: we're going to engage in an ad hoc process, and that is enough. [00:06:21] Speaker 00: The language in Boley, for example, in the Seventh Circuit was a 405G, quote, hearing means a decision after whatever process the agency itself elects to use. [00:06:33] Speaker 04: But do you read any of those cases overruling the interpretation that the Supreme Court offered in Illinois Council? [00:06:42] Speaker 04: I know you try to distinguish that case, but as I read the opinion, [00:06:47] Speaker 04: It's a broad interpretation of how the statutory scheme works. [00:06:55] Speaker 04: And you have acknowledged that your client doesn't fit within that description. [00:07:04] Speaker 04: And so the question is, why should an exception be made when you haven't argued, as I understand it, [00:07:15] Speaker 04: one of your client's clients, as it were, could pursue this. [00:07:22] Speaker 00: Thank you, Your Honor. [00:07:23] Speaker 00: Two points in response to that, if I may. [00:07:25] Speaker 00: First, we actually believe Illinois Council supports us, not cuts against us. [00:07:29] Speaker 00: What happened in Illinois Council, and there's some confusion on this, I think, in lower courts, but you have to look at each part of Illinois Council. [00:07:36] Speaker 00: And in part four, [00:07:37] Speaker 00: Illinois Council went through and said, if channeling is legally unavailable, then federal question jurisdiction must be available. [00:07:47] Speaker 04: And it also said... But the question is to whom? [00:07:52] Speaker 00: Yes, Your Honor. [00:07:53] Speaker 00: So our view is it would be inconsistent with any notion of due process or American law to say that a party [00:08:01] Speaker 00: has to rely on some third party for exhaustion or channeling. [00:08:04] Speaker 00: And that's what this court said in the Jicarilla case. [00:08:07] Speaker 04: I guess what I'm trying to get at is it's not a third party, is it? [00:08:11] Speaker 04: Your client represents and provides this service to others. [00:08:18] Speaker 04: Isn't that correct? [00:08:20] Speaker 00: Our client is has independent contractor doctors, which it then provides the hospitals. [00:08:27] Speaker 00: But I think the best way to think about this is to juxtapose this court's decision in American chiropractic. [00:08:32] Speaker 00: In that case, the association was bringing a claim, but it only had standing to bring the claims of its member chiropractors. [00:08:40] Speaker 00: And then the court said, well, those chiropractors themselves [00:08:44] Speaker 00: could bring the claim. [00:08:45] Speaker 00: So the association has a way to channel its claims. [00:08:48] Speaker 00: It's very members. [00:08:49] Speaker 00: The very claims they're trying to bring can be channeled. [00:08:52] Speaker 00: In this case, we don't have that same legal relationship about the issue. [00:08:58] Speaker 05: Isn't it about the claim? [00:09:00] Speaker 05: I mean, isn't that what this court said in American health [00:09:06] Speaker 00: American hospital, yes. [00:09:07] Speaker 05: Excuse me, American hospital. [00:09:09] Speaker 00: There was some, I would say, dicta to that effect in that case. [00:09:13] Speaker 00: But what it relied on, it pointed to the Ringer case. [00:09:16] Speaker 00: And Your Honor, respectfully, I think close attention is warranted to the progression of Supreme Court cases. [00:09:22] Speaker 00: You had Ringer, then you had Michigan Academy, then you had Illinois Council. [00:09:27] Speaker 00: In Ringer, there was some language to the effect that you had to have claims come through a monetary benefit claims process. [00:09:35] Speaker 00: So the court then said a few years later in Michigan Academy, well, if that's so, then any claim not dealing with monetary benefits, such as a challenge to methodology, is outside the channeling jurisdiction process, and it can go through 1331 jurisdictions. [00:09:49] Speaker 00: Supreme Court came back again in the Illinois Council and said, no, no, that's wrong. [00:09:54] Speaker 00: Everything must go through the channeling process. [00:09:56] Speaker 00: And so it's not just claims for monetary benefits. [00:09:59] Speaker 00: It can be claims for program eligibility. [00:10:01] Speaker 05: Does that help you or hurt you? [00:10:02] Speaker 00: I think that helps us because it says every kind of claim arising under the Medicare Act is eligible for channeling. [00:10:09] Speaker 00: Channeling is is not a foreclosure provision. [00:10:12] Speaker 00: It is only a routing provision. [00:10:15] Speaker 00: And therefore, we can be routed through channeling. [00:10:17] Speaker 00: Now, the agency hasn't set up a particular process for this kind of claim. [00:10:22] Speaker 00: So one of two things must be true. [00:10:24] Speaker 00: Either the agency can engage in the ad hoc process it did here, and that is sufficient for channeling. [00:10:30] Speaker 00: And that's what the Seventh Circuit said in Boley. [00:10:33] Speaker 00: Any kind of hearing that the agency deems sufficient, or if that's legally unavailable, [00:10:38] Speaker 00: then 1331 jurisdiction must be available. [00:10:42] Speaker 05: Wouldn't you have to at least establish, though, that the agency intended the kind of back and forth that it engaged in with you to be the channeling process? [00:10:53] Speaker 05: I mean, you're just saying, in retrospect, that we asked them various questions and they answered. [00:10:58] Speaker 05: And so we should construe that as the agency's intention of giving you a hearing concerning this issue. [00:11:04] Speaker 05: But do you have evidence somewhere in the record that shows that the agency [00:11:08] Speaker 05: perceived itself to be doing that. [00:11:10] Speaker 00: May I continue? [00:11:13] Speaker 00: Two responses to that, Your Honor. [00:11:14] Speaker 00: First, if you take a look at a case like Salfie, for example, which was one of the early Supreme Court cases on this channeling and jurisdiction issue, there the question that was presented ultimately was not heard in a hearing by the agency and the government disputed that [00:11:30] Speaker 00: And the court said, no, you can come here anyway, because we think it was sufficient once the agency concluded it did not have the power statutorily or constitutionally to grant the relief you seek. [00:11:40] Speaker 00: You can still be in federal court. [00:11:42] Speaker 00: So I think it is important to look at the things the agency was saying about what it was doing at the time. [00:11:48] Speaker 00: And if you go back and look at that record. [00:11:50] Speaker 00: We had every indication from the agency that they were taking this seriously, that they had reviewed it on multiple levels, and then ultimately that they had everything they needed to decide this matter conclusively. [00:12:02] Speaker 00: Ending on October 28, 2020, in a letter sent, according to the agency's own words, at the request of and on behalf of the secretary, reaffirming the determination that the agency had no statutory power [00:12:15] Speaker 00: to grant the claim of program eligibility. [00:12:18] Speaker 05: So if that was the agency's final conclusion, did you file a timely claim in this case? [00:12:23] Speaker 05: I understood that there was some sort of a time lag and you needed to come to court within a certain amount of time under the Medicare statute, correct? [00:12:32] Speaker 00: Uh, the statute does say 60 days, your honor, but the government has not raised that below. [00:12:37] Speaker 00: Uh, and if you look at Southie at page 764 or Eldridge at note nine or Bowen versus city of New York at page 478 and note 10, all of those cases say if the government does not raise the 60 day issue below, it is waived. [00:12:53] Speaker 00: It is not a jurisdictional issue and the government. [00:12:55] Speaker 05: They don't, they don't, they don't raise it because they don't believe that was the final word of the agency. [00:13:01] Speaker 05: They say you didn't. [00:13:02] Speaker 05: present your claims in the way the statute says. [00:13:05] Speaker 05: So do you have a case that suggests that when the government makes that kind of argument that they disagree with you that that was the final agency action that their failure to go on to say, and even if it was your untimely waves, the claim, do you have that selfie? [00:13:21] Speaker 00: I mean, selfie itself, the government said we don't believe this particular claim is properly in court. [00:13:29] Speaker 00: For other reasons, other than the 60 days, they failed to raise the 60 day issue. [00:13:34] Speaker 00: They still have to anticipate that we might win on that question and raise all of their defenses. [00:13:38] Speaker 00: So in all three of these cases, that's a pretty clear holding of the Supreme Court, that if the government does not raise 60 days below, the 60 day issue below, it is waived. [00:13:46] Speaker 00: It is a non-jurisdictional issue in the statute. [00:13:50] Speaker 03: Thank you, Mr. Perniccio. [00:13:51] Speaker 03: Let me make sure my colleagues don't have additional questions for you now. [00:13:53] Speaker 03: We'll give you a little bit of time for rebuttal. [00:13:56] Speaker 03: Thank you, Your Honor. [00:13:57] Speaker 03: Thank you. [00:13:57] Speaker 03: We'll hear from the government now. [00:14:00] Speaker 03: You checked. [00:14:08] Speaker 02: Good morning, Your Honors. [00:14:09] Speaker 02: Jennifer Utrecht on behalf of the government, and I please the court. [00:14:13] Speaker 02: Your Honor, the case today presents a simple question, which is whether RICU can obtain judicial review, which is only available if RICU has presented a claim to the secretary. [00:14:25] Speaker 02: RICU has not done so. [00:14:26] Speaker 02: As this court and the Supreme Court have recognized, or especially in American Hospitals Association, presentment requires presenting a claim in the context of a specific claim for benefits. [00:14:37] Speaker 02: So in this case, it would look something like, here are the patients that we've treated that are Medicare eligible. [00:14:43] Speaker 02: We would like payment for treating them. [00:14:45] Speaker 03: And that's something that you would acknowledge that RICU can never do. [00:14:50] Speaker 02: I don't know about never, at least at this moment, Rico is not a Medicare enrolled provider. [00:14:55] Speaker 02: There hasn't been any discussion about whether they want to be or whether they could be. [00:14:58] Speaker 02: So on this record, at this moment, they cannot do so. [00:15:02] Speaker 02: But of course, any Medicare enrolled beneficiary who receive the services could potentially file a claim for benefits saying, I receive this service and I would like to have Medicare pay for it. [00:15:13] Speaker 02: If they've assigned the claim to the hospital, the hospital can bring that same exact [00:15:17] Speaker 02: claim for payment to Medicare saying, we've provided the service, we would like payment for it. [00:15:22] Speaker 03: When you say that when they've assigned the claim to the hospital? [00:15:24] Speaker 02: When the patient has assigned the claim, yes. [00:15:26] Speaker 02: And in either case, this exact argument that Riku has brought here, which is that Medicare is not interpreting the statute or the regulations properly and that it should cover these services, that exact argument can be properly presented and channeled through the administrative procedures. [00:15:43] Speaker 02: That hasn't happened. [00:15:45] Speaker 02: To date, not a single one of the patients that Riku has treated or the hospitals that Riku contracts with has ever presented a specific claim for payment to the secretary. [00:15:55] Speaker 02: We don't know who they've treated, what they've treated. [00:15:58] Speaker 05: Opposing counsel says this really isn't about particular treatment. [00:16:03] Speaker 05: This is about an interpretation by the agency of the various laws pertaining to this and a determination [00:16:12] Speaker 05: that the kinds of services that RICU offers are not covered. [00:16:18] Speaker 05: And he says that's been given a full hearing, that they've asked repeatedly, that high-level agency officials have responded. [00:16:26] Speaker 05: So why is he wrong about whether or not this claim has actually been presented? [00:16:31] Speaker 05: It's not a claim for payment in the traditional sense. [00:16:34] Speaker 02: Your Honor, I think the short answer is an argument has been presented, but a claim hasn't been. [00:16:39] Speaker 02: And I would direct this court to look [00:16:41] Speaker 02: You know, even Heckler versus Ringer, where the very issue in that case was that patients wanted a particular type of service to be paid for by Medicare. [00:16:51] Speaker 02: And the Supreme Court in that case said, you know, it doesn't matter that at least one of these patients has not yet received the service. [00:16:59] Speaker 02: It doesn't matter that he wants it to be paid for Medicare. [00:17:01] Speaker 02: He doesn't, you know, [00:17:02] Speaker 02: The question is, have you actually presented a claim? [00:17:06] Speaker 02: Have you told the agency, this is how much I want to be paid for? [00:17:09] Speaker 02: And then through that process, that is presentment. [00:17:12] Speaker 02: And through that process, you can exhaust your remedies and take judicial review. [00:17:16] Speaker 05: All right, so assuming that they don't present, there is an exception. [00:17:21] Speaker 05: Do you concede to presentment in a circumstance in which the channeling would cut off? [00:17:28] Speaker 05: a judicial review entirely and they say that's the case here because they are not able to bring their claim. [00:17:37] Speaker 02: Yes, under Illinois counsel, there is an exception to the channeling, including the presentment requirement, when all avenues for judicial review are cut off. [00:17:46] Speaker 02: As this court and other courts of appeals have recognized, it's not about whether this particular claimant can bring their claim. [00:17:54] Speaker 02: It's about whether the actual argument can be brought for judicial review in the broad swath of circumstances. [00:18:01] Speaker 02: And in this case, as I've mentioned, [00:18:04] Speaker 02: both third parties, the beneficiaries from Medicare, as well as the hospitals that RICU contracts with, both of whom can present a specific claim for payment to Medicare and raise this exact argument, in which case judicial review would be available. [00:18:20] Speaker 05: What's your response to the argument that they really aren't necessarily going to do that? [00:18:27] Speaker 05: By that, I mean the hospitals, that they're not sufficiently incentivized [00:18:31] Speaker 05: to bring their claim to the agent. [00:18:32] Speaker 02: So I can only speculate, Your Honor, as to why a hospital may or may not have presented a claim here. [00:18:38] Speaker 02: In response to your question, this court in Urological Counsel, which is the case of which the opposing counsel primarily relies, made pretty clear that [00:18:50] Speaker 02: there were extenuating circumstances. [00:18:52] Speaker 02: There was very clear proof that the hospitals in that case had conflicting interests, that their interest in bringing this kind of, they did not have an interest in bringing that kind of claim because their financial interests were opposed to the position that the plaintiff in that case wanted to make. [00:19:09] Speaker 02: There's no evidence of that here. [00:19:12] Speaker 02: Every Medicare beneficiary who receives this treatment obviously has a financial incentive to have it paid for by Medicare. [00:19:18] Speaker 02: And the hospitals who are paying for Riku's treatment obviously have a financial incentive to have part of that money. [00:19:23] Speaker 02: Do you have a sense of why it hasn't happened? [00:19:25] Speaker 02: Again, it would only be speculating. [00:19:27] Speaker 02: One possible reason would be because the hospitals think that on the merits, Riku does not have a good argument, and they don't want to make an argument. [00:19:36] Speaker 02: Another possible reason is because up until March of 2020, when this sunset provision was enacted, or not obligated, [00:19:48] Speaker 02: There was no arguable way to pay for critical care telehealth services at all, let alone outside of the United States. [00:19:57] Speaker 02: And so it's only been in the last year and a half and then even more recently in the last couple of months that there has been possibly an argument that you could pay for any critical care telehealth services. [00:20:10] Speaker 02: So beyond that, Your Honor, I really can only speculate as to why a hospital hasn't specifically requested a claim for reimbursement. [00:20:18] Speaker 05: Can I ask you, with respect to the speculation, this brings to mind to me a question about the burdens in this area with respect to this issue. [00:20:27] Speaker 05: So who bears the burden of establishing whether an authorized claimant is sufficiently incentivized to bring the claim? [00:20:36] Speaker 05: Is it you or them? [00:20:40] Speaker 02: I'm not sure any of the cases have specifically discussed this in terms of burden, but if you look at the broad swath of cases, it's clear that the Illinois Council exception is a very narrow one, and that Congress clearly said that all claims have to be channeled. [00:20:54] Speaker 02: And the ways in which this court and other courts have talked about channeling and this exception under Illinois Council, they have said it doesn't matter if there are [00:21:05] Speaker 02: If it's going to be inconvenient or if there are signs that you know it might take a long time for a claim to be presented the question is whether basically there is a complete preclusion of review and so. [00:21:18] Speaker 02: Here, you know, our RICO has pointed to speculation about why claims haven't been brought, said, no, maybe hospitals think it will take a long time. [00:21:26] Speaker 02: Maybe, you know, it will be costly to do this. [00:21:29] Speaker 02: But all of those are ordinary burdens that are brought that are presented in any channeling case, in any Medicare case. [00:21:35] Speaker 05: I noticed in looking at the record that there wasn't evidence to this effect. [00:21:39] Speaker 05: Are we looking only at the allegations or fact or statements that Rico is saying about Rico is saying about this or don't do they have to present some evidence concerning what actually happens or would happen or is likely to happen concerning the hospitals bringing these claims. [00:21:56] Speaker 02: I would answer that question by referring back to urological counsel, where there were elaborate pleadings about specifically what had happened. [00:22:06] Speaker 02: There was a very lengthy delay. [00:22:08] Speaker 02: There was clear allegations that were not contradicted by declarations about how the hospitals did not have a financial incentive to bring this kind of claim, because they were benefited from Medicare's regulation. [00:22:21] Speaker 02: there has not been anything close to that in this case. [00:22:25] Speaker 02: In particular, Your Honor, the declaration submitted by Riku in the district court note, among other things, that they have long worked with hospitals, continue to work with many hospitals, and, you know, they are still providing these services. [00:22:40] Speaker 02: So to the extent there are any [00:22:42] Speaker 02: beneficiaries, Medicare beneficiaries who are receiving those services, the hospitals clearly have a financial incentive to try to pursue this claim by asking for reinforcement from Medicare. [00:22:55] Speaker 03: That's just a practical question. [00:22:56] Speaker 03: So suppose that a particular entity that you think can bring the claim does do it to trigger the 405 process. [00:23:05] Speaker 03: And is there an avenue in the agency for RICU to participate in that? [00:23:10] Speaker 03: This question gets aired. [00:23:11] Speaker 02: I'm sorry, Your Honor. [00:23:12] Speaker 02: I'm not certain I know the answer to that question. [00:23:15] Speaker 02: I know that, so I could point you to the regulations, for example, for beneficiaries to bring claims, which is 42 CFR 405.906. [00:23:27] Speaker 02: It does have, it does state who the parties to that sort of proceeding are. [00:23:32] Speaker 02: And so that might eliminate, provide some, but I don't have the regulation in front of me. [00:23:36] Speaker 02: So I'm sorry, I can't directly answer it. [00:23:38] Speaker 02: But I think what's important to note is that because the hospitals and RICU have similar financial incentives, these sorts of arguments obviously can be brought in in that case. [00:23:53] Speaker 02: If there are no further questions, we would ask that you affirm the judgment of the district court. [00:23:56] Speaker 02: There's no subject matter jurisdiction. [00:23:58] Speaker 02: Thank you. [00:23:59] Speaker 03: Thank you. [00:24:02] Speaker 03: Mr. Panuccia, we'll give you your one minute back that you asked for. [00:24:07] Speaker 00: Thank you, Your Honor. [00:24:08] Speaker 00: I'd like to address two points if I can. [00:24:10] Speaker 00: The first one is the third party proxy, this supposed proposition that we can get into court through a third party unrelated proxy. [00:24:19] Speaker 00: I want to read what this court said in Jicarilla Apache Nation in 2010. [00:24:24] Speaker 00: Party challenging agency action does not fail to exhaust when the only opportunity for presenting to the agency is an ex parte contact. [00:24:33] Speaker 00: There is no support in law or logic for the proposition that a can be can be held to have failed to exhaust remedies available only to be that is what this court said and of course that's a traditional notion of due process you don't have to rely on parties that aren't here and you will search in vain. [00:24:50] Speaker 00: in Illinois council to find any announcement of this third party proxy rule. [00:24:54] Speaker 00: It's not there and it stems from confusion about what happened in part four and part five and we parse that carefully in our brief. [00:25:03] Speaker 03: So wouldn't the I'm sorry I'll let you finish your second thought but the whole discussion in neurological interests presupposes that that's possible. [00:25:12] Speaker 03: Well it's hard to why do we get into all that if there was no way for a proxy to bring a claim to begin with? [00:25:19] Speaker 00: Your honor, it's a very good question, and I've pondered that, and here's the best answer I can come up with. [00:25:24] Speaker 00: Your logical interest, look back to American chiropractic. [00:25:27] Speaker 00: In American chiropractic, the issue there was the proxy was a member of the organization, and the organization was bringing their claims. [00:25:36] Speaker 00: And then the court said in your logical interest, well, your logical interest doesn't quibble with the idea that you could have theoretically a proxy. [00:25:44] Speaker 00: But then what did the court do in your logical interest? [00:25:46] Speaker 00: It said, well, an unrelated party proxies that have been identified by the government are not sufficient. [00:25:53] Speaker 00: So the only holdings of this court [00:25:56] Speaker 00: put aside the discussion. [00:25:57] Speaker 00: The only holdings of this court are a proxy that is a member of the organization is sufficient, proxies that are not members of the organization are insufficient. [00:26:05] Speaker 05: But you can't divorce that from the reasoning. [00:26:06] Speaker 05: It was insufficient in part, if not in whole, because they had not the same interests. [00:26:13] Speaker 05: The interests weren't aligned, so that doesn't necessarily tell us what to do in a situation in which you have a third party with aligned interests. [00:26:22] Speaker 00: Judge Jackson, I think you identified in your questions to the government exactly what the problem with this regime would be. [00:26:27] Speaker 00: And again, it has no more in any Supreme Court case. [00:26:30] Speaker 00: The problem is, how will we ever produce the evidence at trial sufficient to absolutely prove the interests of other parties who are not in court, who may not want to come to court? [00:26:41] Speaker 00: We may have a whole variety of reasons that change over time, whether they bring a claim or don't. [00:26:47] Speaker 00: The one thing we know is as we stand here today, still after months and months of this rule being in place, being an agency guidance, no one has brought a claim. [00:26:55] Speaker 00: Riku is the only party that has taken the initiative, the expense to try to bring this forward. [00:27:01] Speaker 00: And the government is saying, [00:27:02] Speaker 00: Too bad, there is no path to federal jurisdiction for you. [00:27:06] Speaker 00: And that is completely contrary to what the Supreme Court has repeatedly said, which is the Medicare Act presupposes. [00:27:12] Speaker 00: There's a strong presumption that you ultimately, one way or another, can get to court, whether that's through channeling, or if not, it's not a foreclosure provision, then you get 1331 jurisdiction. [00:27:23] Speaker 00: And that's what the Ninth Circuit said in the Harrow case that we cite. [00:27:26] Speaker 00: That's 747 F3 at 1115. [00:27:29] Speaker 00: There was a lawyer who had this sort of ancillary claim from the parties he represented, and they said, Well, you don't have an avenue to get in. [00:27:37] Speaker 00: They've given you no avenue. [00:27:38] Speaker 00: 13 31 federal question jurisdiction is then available. [00:27:43] Speaker 00: Thank you, Your Honor. [00:27:44] Speaker 03: Thank you, counsel. [00:27:45] Speaker 03: Thank you to both counsel will take this case under submission.