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Case number 20-5350 et al.

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Pomona Valley Hospital Medical Center versus Xavier Becerra, Secretary, U.S.

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Department of Health and Human Services, Appellant.

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Ms.

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Marcus for the Appellant Cross Appellate, Alex Azar.

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Mr. Collins for the Appellant Cross Appellant, Pomona Valley Hospital Medical Center.

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Thank you.

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Good morning.

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I'm Stephanie Marcus from the Department of Justice, and I represent Appellant Cross Appellate, the Secretary of HHS.

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In this case, the district court erred by holding that the final decision of the agency here, the decision of the provider reimbursement review board was not supported by substantial evidence.

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The board was addressing a challenge by planet Mona Valley hospital to Medicare payments known as disproportionate share hospital or dish for three cost years, specifically

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Pomona is challenging the Secretary's determination of the number of its patient days attributable to Medicare beneficiaries who were also entitled to SSI.

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That determination is governed by a 2010 notice and comment rulemaking that Pomona is not disputing applies here and that fully set forth the Secretary's methodology and data

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and a revised matching process for how the secretary determines which Medicare beneficiaries are also entitled to decide.

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And here, the board properly discussed the regulation and relied on it for CMS's process of calculating the numerator of the Medicare fraction.

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The district court, in contrast, erred by holding that the regulation was irrelevant, essentially, just that it was going to look at whether the board

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decision was supported by substantial evidence.

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But the error is in looking in making that inquiry, the regulation governs that the board's determination and is part of the substantial evidence.

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A methodology can be misapplied.

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Yes.

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Right.

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Right.

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And so Mona could come to the board and say, we have no beef with the 2010 methodology.

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But we think due to human error, it was misapplied.

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That's not a challenge to the 2010 methodology, correct?

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Correct.

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And in that instance, Chevron would have nothing to say about the outcome of that case, correct?

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Correct.

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However... Why is this not that case?

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Because here, the question would be whether they then submitted substantial evidence showing

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that there was some error in the process or that there was something wrong.

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And here the board issued an extremely thorough decision, record-based decision.

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We have cited numerous places in the record where the board found discrepancies in the data that Mona

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asserted was congruent.

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That's where the rubber hits the road.

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But it has nothing to do with whether the 2010 methodology is sound.

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And so therefore, there's no legal challenge of the 2000 methodology.

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And Chevron doesn't tell us anything about whether substantial evidence supported the board's, sorry, seem as an application of the 2010 method.

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Maybe your honor.

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I mean, again, it's not a challenge to the regulation.

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I agree with that.

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And therefore, we're not using Chevron to see whether you should defer to the secretary's interpretation because Pomona is accepting that for this case.

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And where the problem here with the district court Pomona's analysis is that when you have a regulation like that, that isn't being challenged.

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The district court in Pomona essentially puts CMS in a worse position

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And it says, oh, we're going to shift the burden of proof that ordinarily applies in board proceedings pursuant to agency regulations.

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And for example, here the secretary, I mean, the main DC Circuit opinion that the district court relied on in shifting the burden to the secretary is Atlanta College of Medicine.

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And that one, the DC Circuit first found that

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on Chevron one basis, so the secretary's interpretation was contrary to the statute.

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And then it actually expressed sympathy with the secretary's administrative concerns and said, and under the circumstances, it would seem quite reasonable for the secretary to adopt regulations or even adjudicatory presumption

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as to what a school must show.

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Sorry, I'm on the same line.

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The district court probably overstated in saying that it overstated to the extent it said that the regulation has nothing to do with anything here.

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Right.

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But we're reviewing de novo.

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Yes.

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And it seems like we all agree that the regulation structures the inquiry

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And that PNOMA is arguing that not that the regulation is wrong, but that for whatever reason it was misapplied here, right?

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And the problem then is you get to the evidence, Mona presented to the board.

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Let me walk through the evidence and you tell me where I'm not thinking about this.

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Mona puts forth this evidence.

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preponderance of the evidence standard.

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So they don't have to prove beyond a reasonable doubt that their amount is the perfect amount.

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They don't have to prove beyond a reasonable doubt, they have to prove beyond a preponderance of the evidence.

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They put forth expert testimony, they use the Medi-Cal data, et cetera, et cetera.

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And the government comes back and says, there's three problems.

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Number one, some of at

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And a Cal data is including people only get state and not.

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To which Mona comes back and says, OK, we'll adjust according to how you tell us to adjust.

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So by the time the like re-briefing is done, the post hearing briefing, that error is no longer an error.

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And then the government has identified two other errors, one to do with nursing homes and one to do with what time in the month

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the person is signed up.

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And Mona has expert testimony that says those errors are statistically insignificant, which the government produces, responds with no expert.

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And the government has this kind of fourth category of, well, because of these first three errors, there might be some more errors.

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They don't identify any of them.

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Now, is that, I know I've described the case in a way that you probably don't like,

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the slant of it.

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But what's factually wrong about what I just said?

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What's wrong, Your Honor, respectfully, is that Pomona, remember, is not challenging a rulemaking, which Pomona had a chance to make comments on, other providers did.

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And that rulemaking established the best available data for the inquiry.

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This makes a lot of sense.

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You're trying to determine who is entitled.

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the Supplemental Security Income, a federal benefits program, and CMS uses SSA data, and that's where they get the data.

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There's a very high, you can't have providers come forward with data from 50 different states.

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And here, Pomona was trying to show congruence, right, with its data and social security administrative data, and it simply didn't show that.

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It would have to show that to meet its burden.

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And in fact, the state supplemental payment only issue, Pomona didn't correct until after the hearing, after it was pointed out.

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If there's no problem with the data, let's assume that, but let's imagine a case much like this, but we'll assume in that case, human error, data entry was the cause of a vast discrepancy between what was paid and what should have been paid.

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Well, on the one hand, Kimono also agrees that the best available data is the correct legal standard.

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And under that, that does allow for errors.

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It doesn't require perfect accuracy.

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And so what a hospital would need to show is that if they're not challenging CMS's determination of the best possible data, that for some reason, because of application of the process, CMS didn't actually use the data that it was saying it was using.

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It simply is enough legally.

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You all didn't use it.

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I mean, this happened I think in California where a computer just didn't read the bottom half of a spreadsheet, right?

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You could have, when we talk about human error, I think we need to include computer error.

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And so what they're trying to show is something went wrong here.

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And so, yeah, we get writ large, that's fine.

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Your methodology is fine.

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We're not challenging it.

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But even in the rule, you acknowledge that looks, you could still have what I will call an as applied challenge and something went back to the rule, but it has applied challenge of what happened here, whether it's input or the computer just didn't read.

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It was two sided information that only went.

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Well, an example.

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That challenge could be brought.

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Yes.

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And how would they prove that challenge?

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Since they don't have those files, they go, well, look, MedCal says we have we got it.

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We're off by 25 percent here in our numbers.

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So something went wrong.

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Would that be an appropriate if you just came in and said, I'm hypothesizing that what happens if you didn't read the flip side of the document for some reason.

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And so it only got

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part of the data, didn't get all of the data in, even though everyone tried their best and applied the methodology.

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And so, and the way they were able to prove this gap is they went to MedCal or whatever, whatever documentation they use and it shows, we got a 25% gap between who's eligible on these records and who's eligible there.

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Now it may be the secretary will have an explanation, but they've shown a 25% gap

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And so something went haywire in the process.

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Why isn't that the type of challenge that the rule reserved?

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That type of challenge, Your Honor, can be brought.

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And we've said that.

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We are not alleging that the process is infallible or unreviewable.

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Here, the problem is in the data itself, which the board thoroughly showed that it's not

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the eight codes in California don't match up one to one, and they gave Pomona a chance to put forward evidence about what those eight codes meant in 20 and 60, and to show that they weren't... I thought they showed that it meant aged, blind, and disabled.

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They did, but that could be far more broader.

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Those are their people that are getting SSI.

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If you back out the supplemental people, that's their people who are getting the SSI.

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They actually did not show that, Your Honor, with all due respect.

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What they say in the reply rate is that over 90% of the SSI entitled people that were shown in the MedCar section 951 data CMS did give them,

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That was 96% of those go into the 10, 20, 60.

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But what they didn't show is who else is in the 10, 20, 60.

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There are a number of those people.

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We already know state supplemental payment only eliminated over 50% of their claim days in one of the years.

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The state, the SSP.

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The adjustment for SSP.

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Yes.

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And that was a very significant adjustment.

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But I wanted to get back to your question about a challenge with the computer error, some really major error.

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The MedPAR data does give that the secretary did provide here and did in accordance with another rulemaking that's not being challenged and explains what data the secretary can and will give the hospital.

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That data shows them the patient days to which the

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there is the same entitlement data for their patients, like which of their patients were entitled to SSI.

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If they claim like 2,000 patient days and the MedCard comes back and shows that 1,500 of them were entitled to SSI, and then in their Medicare fraction, for some reason, the agency just left out

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you know, half of the patient days that its own data showed were included.

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That would be, you know, a way of showing an error because they're using the data that CMS itself use in the process.

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But they don't have the SSI.

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They do.

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Well, what they have, Your Honor, is they have MedPAR, which is some sort of aggregate

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SSI measure.

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I've forgotten month by month or something.

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It does.

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And it does show that hospitals would be able to show which would be able to determine based on that, which of their patients were deemed entitled to SSI.

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And that's what CMS gets from the social security administration.

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They also get the SSI, right?

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Which is, as I understand it,

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way more granular, patient by patient, right?

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The kind of data that might show the counting errors, the coding errors, the human errors.

[00:14:39] Speaker 01:
Your Honor, the SSI eligibility file is, and you're right, that isn't turned over to the hospitals because it contains a lot of privacy information because it's for a month, it's for thousands of hospitals, not just Moda,

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it can't just, the agency can't just turn over the file because they're giving like in 15 months period.

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You may well have very good privacy and administrability reasons for not giving out that massive dump of data, but it puts the hospitals in a tough position when they're facing numbers that just don't look right.

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And they have a burden of proof to try to explain why.

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So what else could they do other than try to reverse engineer through something like Medi-Cal?

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And again, they can use that information to reverse engineer.

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And to some extent, to a large extent, this is because of how Congress has set up the dish formula itself by making the number

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dependent on SSI.

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You say they can reverse engineer.

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And here they did reverse engineer.

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You pointed to three problems with how they reverse engineer.

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They fixed the first problem with regard to the supplemental state stuff.

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And the other two problems the expert witnesses testified were statistically insignificant.

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So it seems like they reversed engineered

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pretty well, maybe not perfectly, but beyond a preponderance of evidence pretty well.

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But I had one fact that they found, they found still a 20 to 25% gap between your counting and MedCal, right?

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Wait, wait, right.

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So I'm just adding that in.

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So it wasn't that they found you were off by five people, which would go to your administrative ability point or your non-perfection point.

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So even after supplemental payments are backed out, there's a 20 to 25% gap, even though there's a 96% gap, as you pointed out, between who we're counting.

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Right, the patients.

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Oh, no, there's not.

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No, that was just I was just trying to repeat their point that the people in that who are entitled, everyone agrees are entitled.

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And they found 96, I think 96 or 97% overlap between who Med Cal's counting.

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This is their expert testimony, maybe an answer to it.

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But their expert testimony was we got 96%

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Between who you're counting, maybe this is what the board could have explained, but they didn't say this.

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Whatever you're about to say, I don't think they would have said it unless you can tell me where they said it.

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We've got this many people.

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So MedCal, there may be a few people they shouldn't even know that we've taken out the supplemental SSI.

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But there's a huge amount of overlap and yet we're having a 20 to 25% gap.

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in patient days that are being counted.

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So that's I don't need to hijack your question.

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I think it's not an overlap.

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I think it's what they're saying is of the days that CMS agrees and they got credit for those went within one of those three codes.

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What the board was asking them to do was to do a ratchet back the other way and show us, OK, so

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We know your free codes, yes, they include the SSI entitled, but they include, we don't know how many other patients included in those codes.

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Like you showing us a 25% disparity between Medi-Cal and our calculation doesn't show anything unless you can show a congruence in the data, which they didn't show.

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And they gave them the opportunity to do the crosswalk.

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I mean, that I think the board said, look, we know you probably can't do this.

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It doesn't seem incredibly hard to do, but you should at least try.

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But they said that the only reasons they gave for thinking that there's a big gap is nursing home.

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and the shifting eligibility date, which I'm not sure is going to matter because someone's going to be coming in each time.

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And they had expert test, I'm just repeating what my colleagues have said, expert testimony said that's not going to explain the 20 to 25% difference.

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And the board saying, well, maybe you could have tried to crosswalk.

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I'm still not sure how that is responsive.

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What evidence the secretary put in or what evidence was in the record that wouldn't allow the court to say,

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The absence of the crossword provided substantial evidence that their 20 to 25% gap was off.

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I didn't even hear the board saying we don't understand what those codes are.

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Those codes are age blind and disabled.

[00:19:31] Speaker 01:
But what the board did say is we don't know if they have aged blind and disabled people in their state category who are not entitled to SSI as defined in the rulemaking.

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That's what the board was saying.

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And there were, there was testimony about the minimal discrepancy, but the board pointed out that the information about those other two discrepancies was available to Pomona through the medical data it has.

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That was its data.

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It could determine how instead of speculating about how many patients statewide are in nursing homes, it could actually look at its patient data, come back to the board and

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quantify it, but more importantly, the crosswalk expert did testify about sort of percentages and small percentages and how this isn't going to, it's a very small number who are going to fall into the problem.

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And as to the eligibility, they said, look, it's, this is going to be quite the rare bird when someone is getting MedCal, but not getting SSI all within the same four week

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period.

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And none of that was rebutted.

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Had the secretary rebutted it, we'd have the board, there'd be something to work with.

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But how, when that's not rebutted by the secretary?

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It's because, and this is where the non-consideration of the rule plays in.

[00:21:00] Speaker 01:
That is a reason other than the sufficiency of the evidence.

[00:21:04] Speaker 01:
The secretary discussed administrative finality.

[00:21:07] Speaker 01:
It discussed not having providers use 50 different sets of data.

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We have to have one set of data that we use.

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if the provider comes forward and doesn't show congruence with that data, that's a problem.

[00:21:21] Speaker 05:
Why is to show congruence?

[00:21:24] Speaker 05:
Why wasn't it good enough to have?

[00:21:28] Speaker 05:
They have two experts who seem pretty credible on their face.

[00:21:34] Speaker 05:
One person ran Medi-Cal and one person ran the office in CMS that does this DHS stuff.

[00:21:44] Speaker 05:
And they said, we've looked at everything and we can't imagine any explanation for 25% gap.

[00:21:58] Speaker 01:
Again, that is not quantifiable evidence in the record.

[00:22:06] Speaker 01:
And if they had an expert like that, presumably they could at least give

[00:22:13] Speaker 01:
the board a definition about what those codes meant, what people were included.

[00:22:18] Speaker 01:
And the board did ask some questions at the hearing and pointed out the rulemaking went through a list of codes that SSA uses that do not denote entitlement.

[00:22:31] Speaker 01:
And the CMS explains why it doesn't use those.

[00:22:34] Speaker 01:
And that was another example that could be a discrepancy with a state program.

[00:22:40] Speaker 05:
And you're right.

[00:22:42] Speaker 05:
perhaps they could have put on better case had they run to ground.

[00:22:50] Speaker 05:
And I'll ask your friend on the other side, but it seems like they still put on a pretty good case through these pretty credible experts and the government's

[00:23:07] Speaker 05:
response was nothing and not to be flipped, but doesn't something usually be nothing?

[00:23:15] Speaker 01:
Um, it, it, again, respected, isn't a thing because there is a rulemaking that governs this process that very carefully went through the data and the contract doesn't address the miscounting or miscounting, but there is, they haven't shown any discounting because they, I mean, they, they're,

[00:23:35] Speaker 01:
the expert declaration they rely on is someone who's talking about Medi-Cal, nonetheless, he made a big mistake before the hearing about what the Medi-Cal codes meant.

[00:23:47] Speaker 01:
I mean, this is, they were going to senators and congressmen when half of, almost half their days were SSP only days.

[00:23:56] Speaker 03:
I mean, I think- Is there any reason on the record to believe that there's another material

[00:24:02] Speaker 03:
gap between what MedCal includes and what SSI covers.

[00:24:07] Speaker 03:
I had sort of thought that 96% was helpful.

[00:24:13] Speaker 03:
What is on the record that shows, I get why their own state payments, right?

[00:24:20] Speaker 03:
You don't want to count those and those are backed out.

[00:24:22] Speaker 03:
And I didn't see the board saying that wasn't backed out in an accurate way.

[00:24:27] Speaker 03:
It just talked about it like it hadn't been backed out.

[00:24:31] Speaker 03:
What else, what basis is there in the board decision for thinking that there is a material gap between, with that backed out, between the codes that California is using for the purpose of administering SSI payments and what's used, the codes that are used by SSI.

[00:24:58] Speaker 03:
That's where I'm not getting, I mean, you say there could be some other gap, but how do we know there's a material gap?

[00:25:07] Speaker 01:
We don't know, but it's the hospital's burden.

[00:25:10] Speaker 01:
And that's the hospital's burden of production.

[00:25:12] Speaker 01:
And the board found it did not meet it here.

[00:25:16] Speaker 01:
And these, the discrepancies the board did find.

[00:25:19] Speaker 03:
No, you have to work with California, right?

[00:25:21] Speaker 03:
Why is there, on what,

[00:25:23] Speaker 03:
basis in their statute, their rules, or anything that's publicly available, is there for thinking that they're including anybody else that isn't an SSI person here?

[00:25:32] Speaker 03:
What basis is there for that?

[00:25:35] Speaker 03:
Given their definition, given the whole point of having these codes, given the point of what they're measuring, SSI eligibility, that's their goal.

[00:25:43] Speaker 03:
These codes, they say, measure SSI eligibility, back out the supplemental payments.

[00:25:48] Speaker 01:
What basis?

[00:25:50] Speaker 01:
The chairman of the board in, you know, this is on JA page 208, it's talking about trying, asking promoted through the crosswalk.

[00:25:58] Speaker 01:
And he says things there, there are codes in the federal register that are, some of them are actually suspension of payments.

[00:26:07] Speaker 01:
They're written, you can look at the federal register.

[00:26:08] Speaker 01:
We have it in our... I'm sorry, this is JA where?

[00:26:10] Speaker 01:
208.

[00:26:11] Speaker 01:
So it's not in the decision of the board.

[00:26:13] Speaker 03:
Where in the decision of the board?

[00:26:17] Speaker 03:
I think that's what we're reviewing, right?

[00:26:19] Speaker 03:
We don't review the hearing transcript.

[00:26:22] Speaker 03:
Is there evidence of a material difference?

[00:26:24] Speaker 01:
Your Honor, apologies, but the board on JA44, the board referred to the hearing and said during the hearing, the board pointed to other reasons of why variances may exist between the eight codes used by Pomona and SSI codes.

[00:26:41] Speaker 01:
And then they talk about the ones they did specifically identify, but I was trying to show in the hearing record.

[00:26:49] Speaker 03:
And those were taken at least at this point on the record evidence are not material ones.

[00:26:54] Speaker 03:
So I'm sorry, I just kind of figure in their decision, they're going to pick their two best.

[00:27:00] Speaker 03:
Am I wrong about that?

[00:27:01] Speaker 03:
Would they pick their two worst?

[00:27:04] Speaker 03:
I don't think they would reference the two best.

[00:27:06] Speaker 01:
Well, I think they picked ones where

[00:27:10] Speaker 01:
through their questioning without, I mean, promoted made an affirmative showing and the board.

[00:27:18] Speaker 01:
through their questioning at the hearing, recognize just from the affirmative shell these three discrepancies.

[00:27:24] Speaker 01:
I mean, that's pretty significant.

[00:27:26] Speaker 06:
One of which was based and two of which were not materials.

[00:27:29] Speaker 01:
So, and then they, so they said, they then said in their decision, and this is JA 46, at the hearing, the board specifically requested a diagram of how information from SSA is translated into the aid codes.

[00:27:42] Speaker 01:
And in order to gain insight,

[00:27:44] Speaker 01:
on how these relate to CO1, MO1, MO2.

[00:27:51] Speaker 01:
Further it says, this question remains unanswered as Pomona did not submit any additional information.

[00:27:56] Speaker 01:
The board acknowledges that building a process might be difficult, but it's necessary to know whether 10, 20, and 60 accurately identified only those individuals with an SSI.

[00:28:08] Speaker 03:
So- Is there anywhere a public definition of these codes?

[00:28:12] Speaker 01:
There's not a definition.

[00:28:14] Speaker 01:
They did a flowchart of sort of the process of how the agency gets the data, which as we pointed out, and again, this isn't in the board's decision, but it can just, the board did a couple times reference potential, these finding these three discrepancies made it concerned that there could be other discrepancies, and Pomona has the burden to show that is not the case.

[00:28:35] Speaker 01:
And there could be timing discrepancies.

[00:28:37] Speaker 01:
If you look at the flowcharts, they get this data weekly.

[00:28:40] Speaker 01:
The CMS holds the data as it shows in the rulemaking at very specific times.

[00:28:46] Speaker 01:
So, they're not... Can I ask a related thing?

[00:28:50] Speaker 03:
I noticed that... I could have just missed it, so please tell me.

[00:28:54] Speaker 03:
In the rule, it defined what the federal code, CO1, meant.

[00:28:59] Speaker 03:
But I didn't see where MO1 and MO2 are defined.

[00:29:02] Speaker 03:
Are they defined in the rule or somewhere else?

[00:29:06] Speaker 01:
They are both, they're all three aren't me and they're entitled to SSI.

[00:29:09] Speaker 01:
I don't, I don't recall seeing it defined in the rule.

[00:29:12] Speaker 03:
So what's the point of figuring out what 10, 20 and 60 mean if there's nothing that I could see in the rule that says what MO, you can't, there's no point in doing a crosswalk if you don't know what the end of the crosswalk is, what MO1 and MO2 are, unless it means age blind disabled and the California codes are age blind disabled.

[00:29:31] Speaker 01:
Again, the, the,

[00:29:34] Speaker 01:
The MedCard data shows it provides to the hospital which patient days were identified as MO1, MO2, CO1, the three entitlements.

[00:29:46] Speaker 03:
The whole point of the crosswalk is you have your codes, California, 10, 20, 60.

[00:29:55] Speaker 03:
And you need to match them up to CO1, MO1, MO2.

[00:30:00] Speaker 03:
Right.

[00:30:00] Speaker 03:
Okay.

[00:30:01] Speaker 03:
Let's say they had all the information in the world about 10, 20, 60, is that right?

[00:30:07] Speaker 03:
Yeah, 10, 20, 60.

[00:30:09] Speaker 03:
But they don't know what MO1 and MO2 cover.

[00:30:13] Speaker 01:
You can't do a crosswalk.

[00:30:14] Speaker 01:
Actually, I think the main issue with the crosswalk here is not determining since all of the entitled data did translate into 10, 20, and 60.

[00:30:24] Speaker 01:
96% did, and as we noted in our brief, Pomona, that didn't stop Pomona from taking the other ones that CMS credited them with that weren't in 10, 20, and 60 and keeping those in the total.

[00:30:37] Speaker 01:
But what they want to know is what 10, 20, and 60 encompass so we can see if they map

[00:30:47] Speaker 01:
There is anything in there that would map into something that's not and I think that they find that they could they could ask.

[00:30:55] Speaker 01:
I think it is available publicly.

[00:30:57] Speaker 01:
It's not in the rulemaking, but it's probably I don't know exactly where, but there was as the board have to know that this is something they could find.

[00:31:05] Speaker 01:
I think it does.

[00:31:06] Speaker 01:
It said it could consult someone from SSA.

[00:31:10] Speaker 01:
And that's not privacy information, what the codes mean.

[00:31:13] Speaker 01:
The rulemaking does go through a lot of what the codes unentitled.

[00:31:19] Speaker 03:
Sorry, where does it say they can get this definition?

[00:31:23] Speaker 01:
It says by obtaining the definitions of the various codes.

[00:31:27] Speaker 01:
Where?

[00:31:27] Speaker 01:
Oh, I'm sorry, this is on page.

[00:31:29] Speaker 03:
No, no, I'm sorry.

[00:31:30] Speaker 03:
I'm sorry.

[00:31:31] Speaker 03:
Yeah, I'm on page 46 with you.

[00:31:32] Speaker 03:
I'm like, where do they obtain it?

[00:31:34] Speaker 03:
Because if this is public record information, then the board would have had to.

[00:31:40] Speaker 01:
But again, first of all, they didn't even show what their codes meant.

[00:31:45] Speaker 01:
Presumably, they have access to what the Medi-Cal codes mean.

[00:31:50] Speaker 01:
That would give you a really good idea when the agency has very carefully defined what entitled SSI means.

[00:31:58] Speaker 01:
It means receiving payments and their

[00:32:02] Speaker 01:
the agency also went through a number of codes which various providers during the rulemaking say, you know, you really should include this other code.

[00:32:10] Speaker 01:
So that information is out there and available to providers or provider wouldn't have given as a presumably CMS.

[00:32:17] Speaker 03:
Again, I didn't see in the rule what MO1 and MO2 means.

[00:32:20] Speaker 03:
I still find that on its own end, but anyhow, they're supposed to go find what 10, 20, 60 mean in California.

[00:32:26] Speaker 03:
That's the problem.

[00:32:28] Speaker 03:
So if they come back with that definition and they say it means age-blind and disabled within the meaning of the Social Security Act, so that you are eligible for SSI.

[00:32:38] Speaker 01:
Well, entitled in the meaning and that they are receiving payments, receiving payments, right?

[00:32:43] Speaker 01:
I mean, if they and, and, but I mean, I don't think they come back in the definition of receiving federal SSI payments.

[00:32:50] Speaker 01:
I mean, there still might be other problems with timing.

[00:32:52] Speaker 01:
They just, I think here they didn't come close.

[00:32:55] Speaker 03:
But the timing thing was already is one of the things that was flagged here.

[00:32:57] Speaker 03:
And that was the expert said, it's not going to make.

[00:33:01] Speaker 01:
Oh, I'm sorry.

[00:33:02] Speaker 01:
I mean, the timing of when the data itself is pulled, because if Medi-Cal data is being pulled every week, that's different from what the agency said in the rulemaking.

[00:33:13] Speaker 03:
That timing issue was in reference by the board, though.

[00:33:17] Speaker 03:
The board doesn't talk about that type of timing one.

[00:33:20] Speaker 03:
That's information you have, which is helpful, but the secretary didn't put that in.

[00:33:25] Speaker 01:
But what the board did say is there could be other discrepancies and unless, and Pomona.

[00:33:31] Speaker 03:
If they come back, if they were to come back, I'm sorry to ask you to speculate, but just to try to understand the theory here.

[00:33:37] Speaker 03:
If they were to come back and say, 10, 20, 60,

[00:33:41] Speaker 03:
We're going to back out the nursing home.

[00:33:43] Speaker 03:
Guess what?

[00:33:43] Speaker 03:
It doesn't matter.

[00:33:44] Speaker 03:
And we're going to back out the eligibility dates, the difference between California and SSI, the sort of one month gap.

[00:33:50] Speaker 03:
And they actually did it.

[00:33:51] Speaker 00:
And they actually did it.

[00:33:52] Speaker 00:
They're actually doing it.

[00:33:53] Speaker 00:
So they come back and they do that.

[00:33:54] Speaker 03:
And they do the same thing for nursing home.

[00:33:56] Speaker 03:
Instead of having the experts say it's not going to be statistically relevant.

[00:33:59] Speaker 03:
They do the math.

[00:34:00] Speaker 03:
It turns out it's not statistically relevant, but they back those out and they do the same for the timing.

[00:34:05] Speaker 03:
And they say, well, here's your definition of 10, 20, 60.

[00:34:08] Speaker 03:
And it means,

[00:34:10] Speaker 03:
receiving SSI.

[00:34:13] Speaker 03:
It means receiving SSI within the meaning of the Social Security Administration.

[00:34:18] Speaker 03:
All right, and then would it be sufficient for the board to go, well, there could be other things?

[00:34:23] Speaker 03:
Are there problems?

[00:34:25] Speaker 03:
It seems like you're putting a lot of weight on that language.

[00:34:28] Speaker 03:
And so I'm trying to figure out is a problem here that because they didn't do A, B and C, put aside the supplemental payments, A, B and C, they didn't do nursing home, they didn't do the difference in eligibility dates, and they didn't give us a definition of 1026 days.

[00:34:46] Speaker 01:
And show that would correspond to what entitled to SSI means.

[00:34:51] Speaker 03:
Right, and if they come back with that,

[00:34:53] Speaker 03:
then it would not be sufficient for the board to go, well, there could be other problems.

[00:34:57] Speaker 01:
I mean, I think it would depend.

[00:34:58] Speaker 01:
The board couldn't, I don't, I think at that point, maybe the board couldn't just say there could be other problems, but I mean, I think there would, what the board is saying here is what you did didn't meet the burden of production to make the agency produce evidence when it has this rulemaking that you are just, you know, you're providing your own data, which isn't what the,

[00:35:20] Speaker 01:
And it doesn't show that the agency didn't use the best available data.

[00:35:25] Speaker 01:
And inaccuracy isn't enough.

[00:35:29] Speaker 01:
And it didn't even show inaccuracy.

[00:35:32] Speaker 01:
Really, the board showed how it was unreliable.

[00:35:35] Speaker 01:
So yes, you'd have a different case.

[00:35:38] Speaker 01:
I don't want to speculate what would happen then, because you'd have an entirely different case.

[00:35:41] Speaker 01:
And I don't know what the board would do, whether the board would ask for it.

[00:35:45] Speaker 03:
Just to follow up on it, why should we care about the nursing home

[00:35:49] Speaker 03:
and the difference in eligibility dates referenced by the board here.

[00:35:53] Speaker 03:
Since they had unrebutted expert testimony that said those are statistically insignificant, why should those matter at all?

[00:36:03] Speaker 03:
And then the board just says, well, there could be other things.

[00:36:08] Speaker 01:
Actually, the board didn't just say there could be other things the board said.

[00:36:12] Speaker 01:
Okay, maybe you think it would be statistically insignificant, but maybe, you know, if Pomona didn't, if this wasn't a huge number of patient days, and one of their patients who was in the hospital for 30 days in one month, there is evidence in, this is on JA 109, about when Pomona was sending an email asking about, you know, would the Medi-Cal codes

[00:36:39] Speaker 01:
also show not entitled if someone's in a nursing home.

[00:36:42] Speaker 01:
And the person says that a recipient going into long-term care would stay in the aid post 10, 20 or 60 for three months.

[00:36:51] Speaker 01:
So what the board is saying, it may be statistically insignificant on a huge statewide basis, but you go back to your data, you tell us about your patients.

[00:37:03] Speaker 01:
Were any of them in a nursing home?

[00:37:05] Speaker 01:
And Pomona didn't do that.

[00:37:07] Speaker 01:
And Pomona also didn't.

[00:37:09] Speaker 01:
go back and look at when, you know, their own patients, because the SSI- Are you arguing that it might be statistically significant?

[00:37:19] Speaker 01:
Is that the point you're making?

[00:37:20] Speaker 01:
I'm just saying that the board gave Pomona the opportunity to quantify with respect- There's three possibilities.

[00:37:29] Speaker 06:
It is statistically significant, it's not statistically significant, and it might be statistically significant.

[00:37:34] Speaker 06:
Which of those three are you arguing?

[00:37:37] Speaker 01:
I think I'm arguing with respect to

[00:37:39] Speaker 01:
it might be, we don't know that.

[00:37:41] Speaker 01:
And that they had the chance to go back and look at their own data.

[00:37:45] Speaker 03:
But what we know, all we know is what the record shows.

[00:37:48] Speaker 03:
And what the record shows is that it's statistically insignificant and that's not rebutted.

[00:37:52] Speaker 03:
So how can we say we don't know there could be?

[00:37:55] Speaker 01:
I think what, again, going back to what the board asked that Mona to do, here it says without

[00:38:06] Speaker 01:
And actually didn't provide an estimate of the impact of this difference on the additional SSI days being requested.

[00:38:13] Speaker 01:
The board does not and cannot know the significance.

[00:38:15] Speaker 01:
So it says they didn't actually they didn't even quantify from it's their own record.

[00:38:23] Speaker 01:
The number of additional days being requested that were patients that came to Mono from a nurse.

[00:38:28] Speaker 01:
Sorry, what line are you referring to at this point?

[00:38:31] Speaker 01:
It's on JA44, the penultimate line, the last sentence starting with however.

[00:38:40] Speaker 01:
So what they did is they submitted statewide statistics, but the board is saying they could have gone back and done it for their own data.

[00:38:48] Speaker 03:
For Pomona specific patients.

[00:38:51] Speaker 03:
Yes.

[00:38:52] Speaker 03:
Is there any reason to think that there's something unusual about Pomona?

[00:38:56] Speaker 01:
I don't know, but that again, it's there.

[00:38:58] Speaker 03:
That would have been a great argument for the secretary to have put into the record is your experts say this, but hospitals can be very different based on their patient population.

[00:39:13] Speaker 03:
And so what's generally statistically significant might not apply to an individual, but I don't have any reason for thinking that the general statistics don't apply with equal force to Pomona statistics.

[00:39:25] Speaker 03:
I don't know how this operates.

[00:39:28] Speaker 01:
Maybe there's some reason.

[00:39:29] Speaker 01:
I think it's because of rulemaking.

[00:39:30] Speaker 01:
I mean, it's a presumption that you don't, you use, you know, the med part and the SSA data, not state data to make this determination.

[00:39:38] Speaker 03:
So there's no one's asking you to use this data to make the determination.

[00:39:41] Speaker 03:
Are you trying to just, you're not saying you need to use MedCal data.

[00:39:44] Speaker 03:
They're saying MedCal data makes us go, uh-oh, something went wrong.

[00:39:50] Speaker 03:
Right.

[00:39:50] Speaker 03:
I don't, I don't think maybe they'll say otherwise.

[00:39:52] Speaker 03:
I don't think they're saying,

[00:39:54] Speaker 03:
you guys have to run this with MedCal.

[00:39:57] Speaker 03:
They're saying something went wrong here.

[00:39:59] Speaker 03:
And they've made a showing.

[00:40:02] Speaker 03:
And so far it sounds like you want them to go back and show that what unrevoted testimony that was statistically insignificant, you just want to run the numbers.

[00:40:13] Speaker 01:
I think what there is a high burden in the face of the rulemaking and administrative finality that to show there actually was a problem in the application of the process.

[00:40:26] Speaker 06:
It's preponderance of the evidence.

[00:40:27] Speaker 06:
That's the burden.

[00:40:29] Speaker 06:
I'm sorry, Your Honor.

[00:40:31] Speaker 06:
Is the burden preponderance of the evidence?

[00:40:34] Speaker 06:
Yes.

[00:40:35] Speaker 06:
It's not that high.

[00:40:37] Speaker 03:
But it's a preponderance or is it a substantial level?

[00:40:40] Speaker 01:
Well, your interview is a substantial evidence.

[00:40:43] Speaker 01:
And I think that here you're- There's a little difference.

[00:40:47] Speaker 03:
Is there substantial evidence that the board thought there was a proponent?

[00:40:50] Speaker 03:
That there was not a ponderance, right?

[00:40:52] Speaker 03:
Is that still listening?

[00:40:54] Speaker 03:
Yes.

[00:40:54] Speaker 06:
Can I ask something unrelated, not unrelated to the case, but why didn't you just accept the invitation to run a test on the small sample on match?

[00:41:06] Speaker 01:
Your honor, because that, I think with the agency not seeing

[00:41:13] Speaker 01:
But the data sufficient data to show there was any error that would it does not have the resources to perform ad hoc.

[00:41:24] Speaker 06:
Again, it can't just do it every time a hospital comes along.

[00:41:27] Speaker 06:
But here there's a lot of evidence that there's a lot that might be wrong.

[00:41:33] Speaker 01:
We respectfully think there, there isn't a lot of evidence here and that they didn't make big, but, but that said the other, I mean, it is even doing a sampling involves another agency, the SSA.

[00:41:45] Speaker 01:
Um, and they have privacy protected HIPAA protected in some instances underlying data about why someone, you know, the specific reason, like the hospital can deduce from MedPAR which of its days were determined to be entitled to SSI, which weren't what it doesn't know is why weren't,

[00:42:03] Speaker 01:
Right?

[00:42:04] Speaker 01:
And so that's the sampling would go back and look at that, but CMS has, you know, agreement with SSA to specifically use this information just for, and CMS doesn't even get those underlying codes.

[00:42:17] Speaker 01:
So we'd need to go to SSA and do a whole, you know, separate agreement and do, and if- I thought SSA was willing to do the, willing to run, to run their data.

[00:42:27] Speaker 03:
I thought the record showed they were, SSA was willing, and then CMS said sure, and then changed their mind

[00:42:34] Speaker 01:
There's a letter from the SSA in the record that shows that the SSA was not willing to do the sampling and actually said, you know, we don't understand the confusion.

[00:42:49] Speaker 01:
We never said we were willing to do it.

[00:42:52] Speaker 01:
And that's, so it's in that there is a letter in the JAA, and I apologize, I don't have the exact.

[00:43:01] Speaker 01:
site for it, but they're, um, the SSA did say that they were willing to do it.

[00:43:07] Speaker 01:
And that's not information CMS has itself.

[00:43:10] Speaker 03:
It's one of the things just to, this is, I know this as many steps down the road, um, just to try to understand what's happening here.

[00:43:18] Speaker 03:
If imagine they go back and do, do what you should, you want them to do.

[00:43:23] Speaker 03:
And the board goes, wow, there's a problem here.

[00:43:26] Speaker 03:
Um, and at this point,

[00:43:31] Speaker 03:
Can these numbers even be rerun by CMS?

[00:43:37] Speaker 03:
Or could this, you know, if they said, oh, it turns out some, we can't figure out what human error was an inputting error.

[00:43:43] Speaker 03:
Did the computer have a glitch?

[00:43:45] Speaker 03:
We just can't figure it out.

[00:43:46] Speaker 03:
You know, the power went out.

[00:43:47] Speaker 03:
That turns out the power went out the day this ran.

[00:43:49] Speaker 03:
So maybe that's the problem.

[00:43:51] Speaker 03:
Could it even be rerun?

[00:43:52] Speaker 03:
I'm just trying to figure out how this could even be fixed at this point.

[00:43:55] Speaker 01:
Your honor, I think, I mean, there are two answers to your question.

[00:43:58] Speaker 01:
If the board had found they came forward with this kind of evidence, then that if the board actually found that the hospital met the burden of production, then CMS would have an opportunity to come forward with some kind of evidence.

[00:44:13] Speaker 01:
And so we'd have to go through that step too.

[00:44:16] Speaker 01:
And I'm assuming the board finally says something.

[00:44:20] Speaker 03:
I know there's a lot of assumptions.

[00:44:22] Speaker 03:
Right.

[00:44:22] Speaker 03:
I'm just trying to figure out what remedial because by that point we are probably close to close to 20 years after the fact.

[00:44:30] Speaker 03:
Is the data still safe somewhere that it could be run again?

[00:44:33] Speaker 03:
Or how would this?

[00:44:33] Speaker 01:
I mean, you know, I'm sorry, I can't answer in the abstract because I don't know exactly what cost here, you know, it would be there are certain things that I think in some of

[00:44:45] Speaker 01:
the hypotheticals where you're just looking at MedPAR data and, you know, CMS sent Pomona the MedPAR data for a much smaller hospital in Iowa or something, and that could be fixed.

[00:44:57] Speaker 01:
That could seem to look at its own information and say, wait, our information doesn't match up with that.

[00:45:03] Speaker 01:
If it's something more complicated and using the SSI, the SSA data, I mean, I think that is another reason that

[00:45:14] Speaker 01:
In the rulemaking, some providers said, we want you to go beyond 15 months.

[00:45:19] Speaker 01:
And the agency said, we're doing longer period than we used to before base date.

[00:45:25] Speaker 01:
But there's got to be some finality here.

[00:45:27] Speaker 01:
And the standard for best available evidence in the Methodist hospital case says this, when it says we're not going to have the agency retroactively apply this new wage index, is using the best available data to you at the time.

[00:45:43] Speaker 01:
Thank you, Rachel.

[00:45:46] Speaker 03:
We'll give you two minutes.

[00:46:16] Speaker 04:
May it please the court, I'm Sven Collins, counsel for Pomona Valley Hospital.

[00:46:21] Speaker 04:
And I'd like to just give a couple of words about Pomona, just so you understand who the hospital treats.

[00:46:27] Speaker 04:
It's a hospital in California.

[00:46:29] Speaker 04:
It serves several communities with a high percentage of low-income residents.

[00:46:34] Speaker 04:
And of course, those low-income residents cost more to treat and providing their care.

[00:46:40] Speaker 04:
Because of that care, it's very important that the hospital receives the appropriate dish monies that Congress directed.

[00:46:47] Speaker 04:
With us today is Candice Lee Truong, who handled Pomona's Medicare reimbursement, and she was a witness at the board hearing.

[00:46:55] Speaker 04:
And I think I probably don't need to say this, but Pomona did everything it could and then some to demonstrate the secretary's fractions were incorrect.

[00:47:09] Speaker 03:
No, you didn't.

[00:47:10] Speaker 03:
You didn't back out nursing home data.

[00:47:13] Speaker 03:
You came in with, as I said, general statistics, but you could have actually, instead of showing that it was statistically, or arguing that it was statistically insignificant, you could have done it.

[00:47:22] Speaker 03:
And you could have dealt with the eligibility and actually cranked the numbers.

[00:47:25] Speaker 03:
I know you have witnesses that say it wouldn't have been worth the candle.

[00:47:30] Speaker 03:
It wasn't statistically significant, but you could have actually given them more precise data.

[00:47:36] Speaker 03:
And the standard is, did you present allegations supported by all the information available to you?

[00:47:44] Speaker 03:
That's what it takes to shift the burden, right?

[00:47:46] Speaker 03:
You didn't do that.

[00:47:48] Speaker 03:
You could have done more.

[00:47:51] Speaker 03:
And then they say you could have given us the definitions of the codes 10, 20 and 60.

[00:47:55] Speaker 03:
So as to those three specific things, can you tell me why you couldn't actually have backed out the nursing home folks?

[00:48:03] Speaker 03:
You couldn't actually have backed out adjusted based on eligibility dates and you couldn't give the definitions of 10, 20 and 60.

[00:48:10] Speaker 04:
Yes, your honor.

[00:48:11] Speaker 04:
And the board's statements in the order are not supported by the record that we could have done those things.

[00:48:18] Speaker 04:
There's no testimony that we could have.

[00:48:20] Speaker 04:
And in fact- Is there testimony that you couldn't?

[00:48:22] Speaker 04:
What?

[00:48:22] Speaker 03:
Is there testimony that you could not have done it?

[00:48:24] Speaker 04:
Yes, there is testimony that presented that, well, I don't think there is, they were asked the question, can you provide that?

[00:48:35] Speaker 04:
Okay, so they weren't asked the question.

[00:48:37] Speaker 04:
So so there's not you're right.

[00:48:38] Speaker 03:
But you have the obligation with the information you have available to you and you're not you're not able to say that you couldn't with the information you have that you couldn't have done it.

[00:48:48] Speaker 03:
It's just that you didn't do it.

[00:48:50] Speaker 03:
And I understand your rationale being like this isn't worth the trouble, but you could have done it as far as this records show.

[00:48:57] Speaker 04:
So as far as the record shows, the board did not question this, if we could have provided more precision.

[00:49:03] Speaker 04:
And so therefore the record does not have anything in there.

[00:49:05] Speaker 04:
But the reality is Pomona- You're not here to say that you couldn't have done it.

[00:49:10] Speaker 03:
You're not able to say that you couldn't have done it.

[00:49:12] Speaker 04:
I can't say that.

[00:49:14] Speaker 03:
You cannot or cannot?

[00:49:15] Speaker 04:
I can say we couldn't.

[00:49:17] Speaker 03:
I can say, I can tell you- I thought you just said the record doesn't show that you couldn't have.

[00:49:22] Speaker 03:
So on this record, can you say that you could not have done it?

[00:49:27] Speaker 04:
On this record, I can't testify, so no.

[00:49:32] Speaker 03:
But anyhow... I'm not asking you to testify, I'm asking you to point something in the record to be clear.

[00:49:37] Speaker 04:
Yes, I understand, Your Honor.

[00:49:39] Speaker 04:
The data that was provided, the unrebutted, unrefuted evidence was that it was statistically insignificant.

[00:49:47] Speaker 04:
And

[00:49:48] Speaker 04:
The additional items the board called for, the secretary didn't put any evidence suggesting that it was available to us, that we could.

[00:49:58] Speaker 04:
That date is not tracked by Medicare nursing home days.

[00:50:06] Speaker 04:
Furthermore, the days, what is in the record, and counsel point, my friend on the other side pointed this out,

[00:50:14] Speaker 04:
the e-mail from the state Medicaid agency, the sentence you read, she didn't read the entire sentence.

[00:50:20] Speaker 04:
It says, and this is about the nursing home patients, they go into long-term care and they'd stay in the aid codes 10, 20, and 60 for three months and then revert the codes 1E, 2E, or 60.

[00:50:35] Speaker 04:
What's the importance of that?

[00:50:36] Speaker 04:
After three months,

[00:50:38] Speaker 04:
is when the SSI payments stop.

[00:50:42] Speaker 04:
So at that same moment, when the federal payments are stopping, the SS, the medical system is coding the patients differently.

[00:50:50] Speaker 04:
They're no longer at 20 or 60.

[00:50:53] Speaker 04:
So therefore, Pomona's record shouldn't have even picked up any of those nursing home residents who are beyond their SSI entitlement.

[00:51:02] Speaker 04:
Now, I'd like to just talk about the crosswalk.

[00:51:07] Speaker 05:
Yeah, let's do that.

[00:51:09] Speaker 05:
I'm sort of with you on the de minimis points, but the failure to provide a crosswalk, what they call a crosswalk, seems like a much bigger problem.

[00:51:21] Speaker 05:
Crosswalk is kind of a jargony sounding term, but what we're talking about is you're trying to use state codes as a proxy for

[00:51:32] Speaker 05:
federal data that you don't have access to under these federal codes.

[00:51:40] Speaker 05:
And you need to show convergence.

[00:51:44] Speaker 05:
And I mean, that seems like the first step in doing that is figuring out what the federal code covers and what the state code covers.

[00:51:57] Speaker 05:
And then

[00:51:59] Speaker 05:
you look at the Venn diagram and figure out is there a lot of overlap or just a little?

[00:52:06] Speaker 04:
Yes, and I'm glad that closing council brought up the crosswalk because Pomona provided a flow diagram that the board explicitly asked Pomona to provide.

[00:52:16] Speaker 04:
And that's at the joint appendix 85 to 88.

[00:52:19] Speaker 04:
And it's real head scratcher why the board said Pomona should have produced more.

[00:52:23] Speaker 04:
You know, Pomona would have loved to produce a true crosswalk.

[00:52:29] Speaker 04:
But because Pomona LAC asked us to the SSI data, there was nothing Pomona could do to create a crosswalk or otherwise that would get to the level of precision the board demanded.

[00:52:41] Speaker 04:
If you look at the pages I referred you to, what the state agency provided were indicator codes that the three state Medi-Cal codes

[00:52:55] Speaker 04:
are created from.

[00:52:57] Speaker 04:
These are the federal codes that turn into the three codes that tell you someone's an SSI category individual.

[00:53:07] Speaker 04:
And if you had an actual diagram that explained what those indicator codes were, and the state representative told Pomona, we can't tell you, you need to talk to SSA.

[00:53:23] Speaker 04:
Well, Pomona spoke to SSA.

[00:53:25] Speaker 04:
And that's in this post-hearing declaration that they couldn't provide the crosswalk.

[00:53:36] Speaker 04:
So they provided what they were able to.

[00:53:38] Speaker 04:
And if you think about it, even if you knew what each of those indicator codes actually said, other than generally translating it to one of the 3.8 codes,

[00:53:48] Speaker 04:
That wouldn't tell you how many of Pomona's matches were actually something other than active SSI entitlement.

[00:53:55] Speaker 04:
That would not tell you any, that would not get you to the level of precision the board was demanding.

[00:54:00] Speaker 05:
I'm sorry, the level of detail in the codes is not publicly available.

[00:54:09] Speaker 04:
It's not in the record that it's publicly available.

[00:54:12] Speaker 04:
The underbited record is that Pomona was unable to provide more than the flowchart and provided the flowchart.

[00:54:20] Speaker 04:
But do you know who could have provided this information to the extent it's relevant?

[00:54:25] Speaker 04:
The other side.

[00:54:26] Speaker 04:
Why didn't they introduce a code, a paint-by-numbers crosswalk if it was so important to the case?

[00:54:37] Speaker 04:
Now, they produced nothing.

[00:54:40] Speaker 04:
We provided, Pomona diligently provided specifically what the board asked for, and it couldn't take it any farther.

[00:54:46] Speaker 04:
And the problem really wasn't the form of the information, but it was Pomona's lack of access to the underlying SSI data.

[00:54:56] Speaker 03:
Let me ask on GE85, when you talk about values, it says the first

[00:55:02] Speaker 03:
Indented bullet point values 2, 3, 6, 7, blah, blah, blah, are set as blind aid code 20.

[00:55:08] Speaker 03:
What are these values?

[00:55:09] Speaker 03:
Are these federal or is this a California thing?

[00:55:14] Speaker 03:
Are you looking at the line that says- I'm on page 85.

[00:55:18] Speaker 03:
Yes.

[00:55:19] Speaker 03:
Under state processes data, you've got bullet points and then you've got indented bullet points.

[00:55:23] Speaker 03:
First use STX file multicategory.

[00:55:26] Speaker 03:
Under that it says what shows up is code 20 and what shows up is code 60 and code 10 and it's all preceded by a bunch of numbers or letters that

[00:55:42] Speaker 03:
Maybe they're defined somewhere else, but aren't defined here.

[00:55:44] Speaker 03:
Who knows what value 2, 3, 6, 7, F, G, O, P, S, T, Y, and Z are?

[00:55:50] Speaker 04:
Those are numbers and codes generated by the SSA.

[00:55:53] Speaker 03:
OK.

[00:55:54] Speaker 03:
Those are not California things.

[00:55:56] Speaker 04:
Not California, Your Honor.

[00:55:57] Speaker 04:
Correct.

[00:55:58] Speaker 04:
And those are the indicator values are what the California representative employee told Pomona would be available from the federal government.

[00:56:09] Speaker 04:
And the Pomona didn't have access.

[00:56:12] Speaker 04:
But also, I just go back to the point that even if you knew exactly what those indicator values said and there was some potential other category of non-SSI payment, that still wouldn't tell you how many of Pomona's days in the match, Pomona believes from the state data, from the state aid codes, were incorrect.

[00:56:36] Speaker 04:
It wouldn't get you to the precision the board demanded.

[00:56:38] Speaker 03:
Can I just clarify one other thing too?

[00:56:40] Speaker 03:
When you say these values are set as blind aid code 20, or set as disabled aid code 60, set as aged aid code 10, is this exclusive or is this just inclusive?

[00:56:51] Speaker 03:
When they say these values, are these the only values that get set as blind aid code 20, aid code 60, aid code 10, or are they saying these things and there could be others?

[00:57:03] Speaker 03:
Is it exclusive or?

[00:57:05] Speaker 04:
Your Honor, the record is that it's exclusive.

[00:57:08] Speaker 03:
These are the only things that California... Look at these numbers and letters from SSI, and those are the only things, the only things that California counts as aid code 20.

[00:57:22] Speaker 04:
That's correct, Your Honor.

[00:57:25] Speaker 03:
So then it's really just a question of timing, but we know that these same codes are used to cover supplemental payments too, right?

[00:57:33] Speaker 04:
Right.

[00:57:33] Speaker 04:
Because the supplemental payment is an automatic payment that someone receives if they're slightly, if they're SSI entitled, they receive the state supplemental payment also.

[00:57:46] Speaker 04:
And as we've all gone over, as the court's gone over, some of those days are actually over counts because there are individuals who have a higher income, they wouldn't be eligible, they wouldn't receive an SSI payment, just a state payment.

[00:58:01] Speaker 04:
But all of that,

[00:58:02] Speaker 04:
I mean, the underbutted record there is that that was backed out completely.

[00:58:06] Speaker 05:
So let me ask.

[00:58:07] Speaker 05:
So if we don't have a perfect comparison of the codes side by side, as if you were comparing legal elements of statute A to statute B, that would inclusively show what's overlapping and what's not.

[00:58:25] Speaker 05:
We don't have that.

[00:58:27] Speaker 05:
What we have instead is

[00:58:30] Speaker 05:
lot of expert testimony showing that there were at least three non overlap issues.

[00:58:40] Speaker 05:
And let's just take Judge Walker's formulation that two of them were de minimis and one was corrected for where in your case, in your expert testimony, do you get a proposition that there were no other, um,

[00:58:59] Speaker 05:
problems or non overlap.

[00:59:03] Speaker 05:
And those three.

[00:59:05] Speaker 05:
Where do you get that?

[00:59:08] Speaker 04:
I think that that is where, um, you know, that's that's the the adversary process.

[00:59:14] Speaker 04:
We presented

[00:59:15] Speaker 04:
and the board asked about three specific- It's just the expert, the expert testimony.

[00:59:20] Speaker 04:
Yes, the expert testimony.

[00:59:22] Speaker 04:
And in the expert testimony, the experts testified, and this is primarily, Mr. Rosenstein testified that there were these two potential situations and they were accounted for the minimus, you know, immaterial for the purposes of the analysis.

[00:59:38] Speaker 04:
They couldn't account for the entire difference.

[00:59:41] Speaker 04:
And there were no others identified by the secretary- Do you have a site

[00:59:45] Speaker 05:
there's nothing else.

[00:59:46] Speaker 05:
You have a site for me where he says and there's nothing else.

[00:59:51] Speaker 03:
I could explain this difference.

[01:00:00] Speaker 04:
There is testimony and I'd have to find it where he says I can't think of any

[01:00:09] Speaker 04:
there should have been this enormous difference between what the state data is showing us and the government's matching.

[01:00:18] Speaker 04:
So that I think is the closest.

[01:00:20] Speaker 05:
It's the expert judgment of someone who was in a position to understand all these figures that sort of look like mumbo jumbo to me.

[01:00:33] Speaker 05:
But he says there's no other explanation.

[01:00:35] Speaker 05:
And they say, the two experts say that.

[01:00:39] Speaker 05:
That's what cinches up the case for you.

[01:00:44] Speaker 04:
And your honors, I think what the secretary is arguing here is that its argument boils down to, we explain what we're going to do in a 2010 rule, but there's nothing more to be done.

[01:01:00] Speaker 04:
And as clearly mistakes can be made, clearly we demonstrated mistakes were made in the record, un-rebutted.

[01:01:09] Speaker 04:
And at that point, under, I wanted to get to the import of precedent, we believe under the Atlantic College decision that

[01:01:19] Speaker 04:
The burden, we did it enough to shift the burden to the government, put up something to rebut our evidence.

[01:01:26] Speaker 04:
And under Atlanta College, it's not necessarily that the government exclusively has access to the information.

[01:01:34] Speaker 04:
has better access.

[01:01:36] Speaker 04:
And here we believe the most meaningful information, the only thing that could get to the bottom of the cause and the scope of the match problem would be the SSI data that only the government has access to.

[01:01:49] Speaker 06:
So short of having that data, I think you have a slippery slope problem and the government has flip side of the slippery slope.

[01:01:57] Speaker 06:
There's always going to be some data set that churns out a different result

[01:02:04] Speaker 06:
when the same model was applied to one data set versus another data set.

[01:02:08] Speaker 06:
The government has picked its data set, and there's no challenge to saying the government's data set is a perfectly fine data set to choose.

[01:02:17] Speaker 06:
Your theory, I think, is that human error or a computer glitch, something about the application of the 2010 methodology to a perfectly fine data, perfectly fine choice of data set, led to an error.

[01:02:31] Speaker 06:
And the government has a problem.

[01:02:33] Speaker 06:
They can't propose to us a theory that would never let the hospital prove that human error or a computer glitch led to, let's say, a $20 million difference in what the hospital was in touch.

[01:02:45] Speaker 06:
And we asked the government about that, and then she addressed that question.

[01:02:51] Speaker 06:
My question to you is, there's always going to be a better data set for you, not necessarily a more accurate data set.

[01:02:57] Speaker 06:
But if you were to go out, you picked Medi-Cal.

[01:03:01] Speaker 06:
But, you know, if you were to shop 10 data sets, nine of them lead to a lower number than the government pays you.

[01:03:10] Speaker 06:
One of them leads to a higher number than the government pays you.

[01:03:14] Speaker 06:
You could just pick that one data set, go to the board and say, oh, you miscalculate.

[01:03:20] Speaker 06:
And let's say you win that case.

[01:03:21] Speaker 06:
And then the next time the government produces a number, you or another hospital could pick not that data set that worked for you last time, but the data set, the one out of 10 that works for you the next time.

[01:03:32] Speaker 06:
What's to stop that from happening if we rule for you in this case?

[01:03:36] Speaker 04:
What's to stop it from happening is Pomona wasn't out shopping data sets.

[01:03:40] Speaker 04:
It was using their two basic sources of data that could tell you something about who has SSI entitlement.

[01:03:48] Speaker 04:
One is the federal data.

[01:03:50] Speaker 04:
Two is the state medical data.

[01:03:52] Speaker 06:
Those are the only two data sets that exist that tells you who is, I mean, you just like somewhat, well, people who are low income, people who have visual impairment, people who have disabilities.

[01:04:02] Speaker 06:
Those are the three things.

[01:04:03] Speaker 04:
I'm not aware of another data set that would provide that information.

[01:04:08] Speaker 04:
Obviously, the federal government's data set has a level of detail that can tell you, yes, someone's receiving payment that month or not.

[01:04:18] Speaker 04:
The state data indicates that, and in most instances, it should be accurate, and we've accounted for the issues.

[01:04:25] Speaker 04:
This isn't like civil litigation where you can go and hire any number of experts to punch data and come up with different models and analyze things.

[01:04:36] Speaker 06:
You didn't do the form shopping equivalent of data set shop.

[01:04:41] Speaker 06:
And you couldn't have done.

[01:04:43] Speaker 06:
And no other hospitals couldn't do it either.

[01:04:48] Speaker 04:
I don't believe so, Your Honor.

[01:04:49] Speaker 04:
And Pomona didn't set out to get more money.

[01:04:56] Speaker 04:
Pomona started this process because its fractions shrunk.

[01:05:01] Speaker 04:
And it wanted to know what is going on.

[01:05:04] Speaker 04:
And it had a source of data and an analysis that showed that there appears to be something wrong.

[01:05:12] Speaker 04:
As both experts said.

[01:05:14] Speaker 06:
It probably would not have gone to the board

[01:05:17] Speaker 06:
you found out that you were owed less money.

[01:05:22] Speaker 04:
That's absolutely correct.

[01:05:23] Speaker 04:
I mean, Pomona was, Pomona went, when I say and then some, it's been an entire laborious process trying to work with the agency through US senators to get to a resolution.

[01:05:38] Speaker 04:
And Pomona was a hundred, it's undisputed testimony, a hundred percent willing to walk away if,

[01:05:45] Speaker 04:
the SSA had taken the 50 sample, you know, the 50 sample set and said, sorry, none of those are matches.

[01:05:53] Speaker 04:
Kimono would have walked away.

[01:05:55] Speaker 04:
That's the undisputed testimony.

[01:05:58] Speaker 04:
Kimono here is trying to find out what happened.

[01:06:01] Speaker 04:
It appears that there's a massive problem in the secretary's actual execution of the 2010 rules match.

[01:06:09] Speaker 04:
I mean, the secretary's argument assumes the output is correct because the secretary's inputs and its process are unrebuttably infallible.

[01:06:21] Speaker 06:
You do not contend that the agency used the wrong methodology.

[01:06:28] Speaker 06:
I'm sorry, Your Honor.

[01:06:29] Speaker 06:
The agency used the right methodology, correct?

[01:06:34] Speaker 06:
The 2010 methodology?

[01:06:37] Speaker 04:
as described in the rule, sure.

[01:06:40] Speaker 04:
But what the secretary- You're not challenging them.

[01:06:43] Speaker 04:
Correct.

[01:06:44] Speaker 04:
You're absolutely correct.

[01:06:45] Speaker 04:
But the secretary has provided nothing to assure the court that the agency's actual matches for Pomona or any hospital reflect the underlying data or use the correct process.

[01:06:57] Speaker 04:
No reports, nothing.

[01:06:59] Speaker 04:
And there was no validation at all, even in the agency's own process for the three years at issue here,

[01:07:07] Speaker 04:
for Pomona's match.

[01:07:09] Speaker 04:
The agencies described some validation that might occur for later years, prospectively 2011 and beyond, nothing for these earlier years.

[01:07:18] Speaker 04:
So the secretary undertakes a very significant effort after Bay State to have all these cost reports are on hold and it corrects across the country, all the cost reports, all the SSI fractions for all the hospitals around the country.

[01:07:35] Speaker 04:
hands them out in 2012.

[01:07:38] Speaker 04:
And there's literally nothing that the agency produced, that the government produced, to assure the court that it did it correctly.

[01:07:47] Speaker 04:
And our data and our unrefuted evidence at the board hearing showed they did not do it correctly.

[01:07:54] Speaker 03:
Your theory says something, even with particular methodology is correct, something went wrong.

[01:07:59] Speaker 03:
I feel you had a line of human error, computer error, or something like that, right?

[01:08:03] Speaker 03:
Something went wrong these three years.

[01:08:06] Speaker 03:
under and applying your methodology.

[01:08:09] Speaker 03:
This is 2006 to 2008.

[01:08:13] Speaker 03:
Do the same problem continue in nine, 10, 11 subsequent years or is a problem not there and this claim really is confined to something went wrong these three years?

[01:08:27] Speaker 04:
In the record, your honor, it's focused on these three years.

[01:08:32] Speaker 04:
Mona has appeals for other years.

[01:08:34] Speaker 03:
On the same basis using MedCal data?

[01:08:38] Speaker 04:
It has board appeals.

[01:08:40] Speaker 04:
None of them have gone to hearing.

[01:08:41] Speaker 03:
Is it on the same basis though?

[01:08:43] Speaker 03:
That there's a gap between the MedCal data and what the SSI numbers showed?

[01:08:50] Speaker 04:
I believe that the board issues are very similar.

[01:08:54] Speaker 03:
Very similar.

[01:08:55] Speaker 03:
For how many years?

[01:08:56] Speaker 04:
I can't recite that off the top of my head, Your Honor.

[01:09:00] Speaker 04:
I mean, I believe it's for the next several years.

[01:09:06] Speaker 03:
Doesn't that decrease the prospect that it was actually any kind of human error or computer glitch?

[01:09:11] Speaker 03:
Because if it was, you wouldn't expect it to be repeating for three, four or five, six years.

[01:09:20] Speaker 04:
Well, the problem, Your Honor, is we don't know what the problem was.

[01:09:24] Speaker 03:
In a base state, they said, here's what the problem is.

[01:09:27] Speaker 03:
These different types of files aren't being counted.

[01:09:29] Speaker 03:
And so isn't that part of your problem here is you went and got some other data and did your best to compare them, but we can't really compare the two exactly, is your theory.

[01:09:39] Speaker 03:
We can't line them up exactly.

[01:09:41] Speaker 03:
We don't have that information.

[01:09:43] Speaker 03:
But it seems like every single year for however many years, there's a gap between the two of them.

[01:09:49] Speaker 03:
How is that not actually a challenge to the rule

[01:09:54] Speaker 03:
decision that these SSI files are the best available data.

[01:10:00] Speaker 03:
It can't be human error that much.

[01:10:01] Speaker 04:
We're challenging it as applied in each of the cases.

[01:10:05] Speaker 04:
And we haven't seen how, other than the results, we haven't seen how it's been applied.

[01:10:11] Speaker 03:
You don't have a theory as to what's wrong with their data.

[01:10:15] Speaker 03:
You're not saying there's some, you've got even more than these three years, you've got a lot of years now of some gap between MedCal

[01:10:23] Speaker 03:
an SSI, but you haven't yet figured out a theory as to what are they not counting?

[01:10:29] Speaker 03:
What is their file not capturing?

[01:10:32] Speaker 03:
What are their human beings not capturing?

[01:10:36] Speaker 03:
It just seems to me that your collective argument is your files, your SSI files are not in fact capturing what they should.

[01:10:44] Speaker 03:
They are not the best available data.

[01:10:47] Speaker 03:
as it turns out in, at least for Pomona, they're not the best available data, or maybe for California hospitals, they're not the best available data.

[01:10:55] Speaker 04:
Again, I think, Your Honor, they've described the process, they've said what they're doing, we don't know what they're doing.

[01:11:02] Speaker 03:
No, but the point of views collectively over all these years making these arguments is that it's not working.

[01:11:09] Speaker 03:
You're not getting what you should be getting.

[01:11:11] Speaker 03:
That's your argument.

[01:11:12] Speaker 03:
That's your argument here is MedCal shows you are not getting all the people you should be getting.

[01:11:17] Speaker 03:
You're not disputing that they use the files as they said they would in their rule.

[01:11:21] Speaker 03:
You're not disputing that.

[01:11:24] Speaker 04:
Correct?

[01:11:26] Speaker 04:
We're not disputing that they describe what they're going to do.

[01:11:30] Speaker 04:
No, we're not disputing that.

[01:11:32] Speaker 03:
And you're not disputing that they did do that, other than that there must have been human error or computer glitch, but that they actually took those steps and then something went haywire in the process itself.

[01:11:43] Speaker 03:
But that is actually the process that they applied to you.

[01:11:47] Speaker 04:
Yes, I mean, there it's supposedly the process that was applied.

[01:11:50] Speaker 04:
We're not telling the process in the other board appeal.

[01:11:54] Speaker 03:
And you're not saying they didn't apply that process here.

[01:11:57] Speaker 03:
Like intentionally that just some accident went on.

[01:12:00] Speaker 03:
Something went wrong.

[01:12:02] Speaker 04:
We're in a complete information gap as to what why it didn't work.

[01:12:05] Speaker 04:
We don't know.

[01:12:07] Speaker 04:
The secretary's SSI data could demonstrate that.

[01:12:09] Speaker 04:
I can't make hypothetical arguments.

[01:12:13] Speaker 04:
I mean, I can make hypothetical arguments why it could have happened, but I don't think that's going to advance our case.

[01:12:23] Speaker 04:
We've demonstrated there was an error.

[01:12:25] Speaker 04:
The SSI data would demonstrate the cause and the scope.

[01:12:30] Speaker 04:
These other cases that have not even gone to hearing,

[01:12:35] Speaker 04:
if those cases could conceivably challenge the methodology.

[01:12:40] Speaker 06:
I mean, I'm... Let me give an analogy and you tell me if it's related to Judge Collette's question.

[01:12:48] Speaker 06:
Imagine a case from my memory where 10 years ago, Yale's student clinic, law school clinic had a policy

[01:13:03] Speaker 06:
that the cover page would always say the court where they were litigating.

[01:13:08] Speaker 06:
The United States Court of Appeals for the Ninth Circuit.

[01:13:11] Speaker 06:
But the first time they did it, it actually said the untied States of America for the Ninth Circuit, untied States Court of Appeals.

[01:13:21] Speaker 06:
And every time they filed a document in that case, it said the same thing.

[01:13:27] Speaker 06:
Their policy wasn't to say untied states.

[01:13:31] Speaker 06:
It was a glitch.

[01:13:33] Speaker 06:
It was a human error.

[01:13:34] Speaker 06:
And because they started with the wrong template, they repeated the error over and over.

[01:13:39] Speaker 06:
It could have gone on for years.

[01:13:42] Speaker 06:
Is that at all relevant to the kind of glitch that might explain how this error that you're alleging could go on for years and years and years, even if the methodology is sound?

[01:13:54] Speaker 04:
That's your honor.

[01:13:54] Speaker 04:
I mean, if they set up a template and it's repeated year after year and the template's incorrect, absolutely, that could perpetuate an error.

[01:14:02] Speaker 04:
That wasn't intended, but that is occurring in that process.

[01:14:05] Speaker 04:
And if the Secretary has, you know, the base state case, Secretary, of course, said their process was wonderful and should be sustained.

[01:14:14] Speaker 04:
And, you know, base state demonstrated the opposite.

[01:14:16] Speaker 04:
I mean, if it turns out that their process, something is broken, I mean, that, you know, it should be fixed.

[01:14:25] Speaker 04:
This is a challenge, this is an as applied challenge to the agency's process.

[01:14:29] Speaker 03:
Yeah, I think the difference is someone could have pretty quickly figured out what the problem was with the difference there.

[01:14:34] Speaker 03:
And it's the difference between you and Baystate again is over time, you keep finding these gaps and you've got this data.

[01:14:45] Speaker 03:
Shouldn't you have been able to sort of figure out what the problem is and present that to the secretary?

[01:14:51] Speaker 03:
Which of my patients aren't getting counted?

[01:14:53] Speaker 03:
Which are showing up here or showing up there?

[01:14:57] Speaker 04:
It's going to be different every year.

[01:14:59] Speaker 03:
If it's different every year, then it's not a common problem, then, if it's different every year.

[01:15:13] Speaker 04:
Sorry, Your Honor.

[01:15:14] Speaker 04:
What I mean is it's going to be different patients every year.

[01:15:22] Speaker 04:
I'd just like to spend two minutes on relief in our cross appeal with respect to the adverse inference.

[01:15:28] Speaker 04:
I know I'm well past my time.

[01:15:32] Speaker 04:
Since the secretary here offered no evidence in rebuttal, the secretary shouldn't get a second bite of the apple.

[01:15:39] Speaker 04:
And the court instead should apply an adverse inference by vacating the SSI calculation.

[01:15:47] Speaker 04:
Going beyond what the district court did, which was to remand to the secretary

[01:15:52] Speaker 03:
Any case where we have done that in an APA remand that you can cite to me?

[01:15:58] Speaker 03:
Any case in an APA remand where we applied an adverse inference?

[01:16:03] Speaker 03:
Or any court has applied an adverse inference?

[01:16:06] Speaker 04:
No, we don't have that, Your Honor.

[01:16:08] Speaker 04:
But the same principle, the government had its opportunity to present its defense, it failed to present that information, and it should not get a redo of the actual hearing

[01:16:20] Speaker 05:
Sorry, when you say adverse inference, what exactly do you mean that we order the agency to go with your California numbers?

[01:16:33] Speaker 04:
No, simply that you would vacate.

[01:16:36] Speaker 04:
And we 100% acknowledge that.

[01:16:39] Speaker 05:
Because your affirmative case is we don't know what the right number is.

[01:16:48] Speaker 05:
We just know that the government's number

[01:16:50] Speaker 05:
wrong.

[01:16:52] Speaker 05:
So what could we do in those circumstances other than vacate and remand for further proceedings for the government to figure out what the right number is?

[01:17:05] Speaker 04:
And this is the additional relief we're asking for, but we believe it's consistent with this court's powers, which is to vacate the SSI population.

[01:17:16] Speaker 04:
Not simply to vacate the board's decision, vacate Ramona's SSI calculations, because we've demonstrated they are incorrect.

[01:17:25] Speaker 04:
Then it gets remanded to the secretary to recalculate.

[01:17:28] Speaker 05:
The secretary is able to use- Vacate, I'm sorry, vacate the action of the Medicare assistance contractor?

[01:17:37] Speaker 04:
Vacate the action of the secretary to determine the SSI calculations.

[01:17:43] Speaker 04:
And so vacate the secretary's SSI calculations for Pomona and remand to the secretary to recalculate the fractions in accordance with the court's decision.

[01:17:56] Speaker 03:
Recalculate how?

[01:17:57] Speaker 03:
Just run the data a second time?

[01:17:58] Speaker 03:
Rerun the data?

[01:18:00] Speaker 04:
They would recalculate and demonstrate, provide their data demonstrating their results.

[01:18:11] Speaker 03:
Trying to make sure I'm understanding what you're saying.

[01:18:14] Speaker 03:
It would you want them to rerun?

[01:18:17] Speaker 03:
So we'll make sure there's not a computer glitch.

[01:18:21] Speaker 03:
Anyway, I want you to just take those files again and rerun them through your computer again.

[01:18:25] Speaker 03:
Or do you need them to you want them to run them with the Med account numbers?

[01:18:30] Speaker 04:
Well, I'd love them to take just take our numbers and rerun those numbers would be one way to

[01:18:36] Speaker 04:
to determine if the additional days were accurate or not from the Medi-Cal numbers.

[01:18:41] Speaker 04:
That would be the simplest way for the secretary to recalculate on remand, and the secretary could obviously at that point demonstrate that some of our numbers were mismatches and inaccurate.

[01:18:56] Speaker 04:
But the secretary would then

[01:18:59] Speaker 04:
Part of our requested relief would be to have the secretary provide its data, show its mass, so to speak, and not just show the results, which is the only thing we'd do.

[01:19:15] Speaker 03:
This data is all the stuff that's protected by privacy laws and HIPAA.

[01:19:20] Speaker 03:
That's what they would have to show you?

[01:19:22] Speaker 04:
Well, it's a little bit of a...

[01:19:26] Speaker 04:
It's a straw man to say that the government would have to produce all of its SSA data.

[01:19:32] Speaker 04:
It would only have to provide the records related to the matches from Pomona.

[01:19:38] Speaker 03:
OK, but as to Pomona, is to get all this protected information?

[01:19:44] Speaker 04:
And yes, Your Honor, Pomona has already the most sensitive

[01:19:52] Speaker 04:
protected information for all of these same patients, of course, because under HIPAA, they're permitted to use it for purposes of payment.

[01:20:00] Speaker 04:
But the only thing that Pomona doesn't have with respect to these patients, they already know that they're eligible for SSI under the three aid codes.

[01:20:09] Speaker 04:
They already know that the only thing they don't know is if they're receiving active payment or not.

[01:20:13] Speaker 04:
So really, the privacy issue is a bit exaggerated on the government's part.

[01:20:21] Speaker 04:
And the government, of course, has the ability to provide limited data sets.

[01:20:28] Speaker 04:
It did a limited data set.

[01:20:30] Speaker 04:
It could modify that for purposes of resolving this case with Pomona.

[01:20:36] Speaker 05:
Our jurisdiction is limited to

[01:20:41] Speaker 05:
judicial review of any final decision of the board, meaning the PRRB.

[01:20:48] Speaker 05:
So where do we get the authority to look beyond that and set aside this SSI calculation, which is a different agency action by a different administrative

[01:21:03] Speaker 04:
Ultimately, the appeal concerns the determination of Mona's SSI calculations.

[01:21:12] Speaker 04:
That's the root of it.

[01:21:13] Speaker 04:
And your honor is correct that you're reviewing the board's decision rejecting our appeal.

[01:21:19] Speaker 04:
We believe that it would not be inconsistent with this court's authority to direct the calculations because of the hearing process.

[01:21:28] Speaker 04:
the secretary offered no evidence to rebut Mona's case that the calculations themselves may be vacated.

[01:21:41] Speaker 03:
All right.

[01:21:41] Speaker 03:
Thank you very much.

[01:21:46] Speaker 03:
We'll give the government two minutes.

[01:21:48] Speaker 03:
I think you wanted, you wanted a cross appeal rebuttal as well.

[01:21:54] Speaker 03:
You asked for a cross appeal rebuttal as well.

[01:21:57] Speaker 03:
The government's going to get rebuttal now.

[01:21:58] Speaker 03:
And I understand you wanted to rebuttal just a minute if we may solely on your cross-appeal issue.

[01:22:04] Speaker 03:
That's right.

[01:22:13] Speaker 01:
Thank you, Your Honor.

[01:22:14] Speaker 01:
On the cross-appeal, I will just rely on the brief.

[01:22:24] Speaker 05:
Could you just put the mic down?

[01:22:26] Speaker 01:
Oh, I'm sorry.

[01:22:27] Speaker 01:
Is that better, Your Honor?

[01:22:29] Speaker 01:
Can you hear me now?

[01:22:32] Speaker 01:
And on our appeal, I did going to JA 85 and 86, which Mr. Collins referred to, that is nothing like a crosswalk.

[01:22:44] Speaker 01:
It's just the process by which the state gets the data and puts it in the different categories.

[01:22:51] Speaker 01:
That's not what the board was asking for, and it's not significant.

[01:22:55] Speaker 03:
But why doesn't it provide what you asked for, which is a definition of what gets covered under these codes?

[01:22:59] Speaker 03:
This is what 10, 20, and 60 cover, and that is the numbers and letters listed there from SSI, which would allow very easily to say, well, you shouldn't be including seven, or you shouldn't be including S, or Y.

[01:23:16] Speaker 03:
Right.

[01:23:17] Speaker 03:
It gives you what you said before was where's, you know, we don't, we don't even know what these definitions mean or how they map on to SSI.

[01:23:23] Speaker 03:
It seems to me that answers that question.

[01:23:26] Speaker 03:
The SSI codes I'm answering.

[01:23:27] Speaker 01:
No, I don't.

[01:23:28] Speaker 01:
I mean, I don't think it does because they don't say what those codes are.

[01:23:34] Speaker 01:
They say they're your codes.

[01:23:37] Speaker 01:
They said they, now these are, but these are different from

[01:23:42] Speaker 01:
I mean, I don't know if the S code is an S code that was discussed in the rulemaking, for example, of suspended.

[01:23:48] Speaker 03:
Why does it matter if they say these are numbers that come from SSI and that's what we put into a code 10, which apparently, or yeah, 10, which corresponds with those who are blind.

[01:23:59] Speaker 03:
And these are your numbers.

[01:24:02] Speaker 01:
But they don't, they don't explain whether that is limited and it clearly isn't limited to just people receiving payments because

[01:24:11] Speaker 01:
They include the SSP and they include the nursing home and they include the different and, you know, regardless of whether those are minimal discrepancies.

[01:24:20] Speaker 01:
This isn't an actual, you know, explanation of what the limits of those codes are.

[01:24:28] Speaker 01:
And, you know, probably more important, Judge Walker, you asked a key question here, which what is the limit of what the hospital, you know, if the court allowed the hospital to go forward with this kind of data, other hospitals in other states presumably have state data.

[01:24:45] Speaker 01:
And if they hear the board is best positioned to judge this data and examine it, it heard the witnesses.

[01:24:53] Speaker 01:
Mr. Rosenstein, they referred to his declaration.

[01:24:58] Speaker 01:
He was certified as an expert on the California program, but not on how it corresponds to social security.

[01:25:06] Speaker 01:
And the board had a lot of questions.

[01:25:08] Speaker 01:
And again, the board initially pointed out this very, very large mistake on the state supplemental payments.

[01:25:18] Speaker 01:
If there is a discrepancy, it could be a California computer problem.

[01:25:23] Speaker 01:
It could be a California human error.

[01:25:25] Speaker 06:
So this could happen in all 50 states.

[01:25:27] Speaker 06:
I agree with you on that.

[01:25:30] Speaker 06:
And that's either a feature or a glitch.

[01:25:34] Speaker 06:
If you're actually doing it

[01:25:37] Speaker 06:
wrong because of human error or computer problems in all 50 states, you should want these challenges to be raised in all 50 states because I'm sure you want to be paying whatever the accurate amount is.

[01:25:47] Speaker 06:
It would be a glitch if there's the kind of data set shopping that I hypothesized.

[01:25:54] Speaker 06:
Your opposing counsel said that's just not a concern at all.

[01:25:57] Speaker 06:
Do you agree with him or disagree with him when he says there's really no reason to worry about data set shopping?

[01:26:06] Speaker 01:
I don't know about data set shopping, Your Honor, but I do think there is a worry about relying on hospitals coming forward to try to invalidate fractions based on unreliable data and not the best available data.

[01:26:22] Speaker 01:
And what we're saying, yes, we certainly, the agency and we hope that the 2010 rulemaking reflects this, that we try

[01:26:31] Speaker 01:
the agency is trying to do it as accurately as possible with the best available data.

[01:26:37] Speaker 01:
If the hospital did meet the high burden and could somehow show that this really did occur, our point is they didn't here.

[01:26:46] Speaker 01:
And if it weren't, and the board- Are you saying they can't rely on state data to do that?

[01:26:52] Speaker 01:
I don't know what else they would use.

[01:26:53] Speaker 01:
No, we're not saying that they can't.

[01:26:55] Speaker 01:
We're saying that here they didn't show

[01:26:57] Speaker 01:
that there was sufficient congruence between the state data and the SSA data.

[01:27:04] Speaker 03:
I know, and you said, well, maybe there's something wrong with California computers.

[01:27:07] Speaker 03:
I can't disprove a lot of negatives.

[01:27:09] Speaker 03:
I don't, right?

[01:27:10] Speaker 01:
No, but that's just another example of if you have one of the problems and why the burden of proof is on the hospital here, that the secretary has set up the system.

[01:27:21] Speaker 01:
And if there were computer glitches or human error,

[01:27:27] Speaker 01:
presumably quite a few of them would be caught by the MedPAR data, which is what Congress passed, Section 951.

[01:27:36] Speaker 01:
Since the 2005 rulemaking, Congress hasn't indicated that the Secretary needs to turn over any additional information.

[01:27:42] Speaker 01:
They have all the information legally and required under the statute and the regulations, and that information does give them a way to look to see if there is

[01:27:53] Speaker 01:
you know, a kind of glitch in the federal system because they can look at the number of patient days and they can look at the number of entitled days.

[01:28:01] Speaker 01:
And if that information doesn't match with the Benpar data, but the problem here, they're using a whole separate set of data and they haven't established to the extent that we're not saying it's impossible.

[01:28:15] Speaker 01:
We're just saying they didn't do it here.

[01:28:17] Speaker 01:
And the board went through step by step why they didn't do it.

[01:28:22] Speaker 01:
or held a full hearing allowed them to submit, you know, as much evidence as they could.

[01:28:29] Speaker 01:
And they didn't do several of the additional evidentiary things that the board asked for.

[01:28:37] Speaker 01:
And for that reason, and the board's decision should get some deference from this court under APA deferential review.

[01:28:45] Speaker 01:
And so we would ask that you reverse the district court and hold that the board's decision was supported by substantial evidence.

[01:28:53] Speaker 01:
Thank you.

[01:28:56] Speaker 03:
Thank you.

[01:29:02] Speaker 03:
Thank you.

[01:29:06] Speaker 04:
The court asked if there was any precedent where the court set aside the agency's fractions in this scenario.

[01:29:14] Speaker 04:
And that is actually the base date order from the district court with the secretary's agreement, which the secretary agreed with, was that the fractions should be vacated and remanded to the secretary to recalculate them.

[01:29:29] Speaker 03:
Well, there they found a legal error in what they were covering and not covering.

[01:29:35] Speaker 03:
They just said, you know, you can't be excluding these things, but you're not alleging legal error.

[01:29:39] Speaker 03:
You're alleging human error or computer error here, right?

[01:29:43] Speaker 04:
Right.

[01:29:44] Speaker 04:
Again, you don't know what the error is.

[01:29:46] Speaker 04:
Absolutely, Your Honor.

[01:29:47] Speaker 04:
But the print abstractly, it's the same thing that the fractions there were vacated, whether it was because it was it was actually a legal process here.

[01:29:57] Speaker 04:
They didn't count days.

[01:29:58] Speaker 04:
They should have.

[01:29:58] Speaker 03:
It's not the same thing as this legal error.

[01:30:00] Speaker 03:
Then courts can tell the

[01:30:02] Speaker 03:
secretary or the board to ensure that his decision comports with what the law requires but there isn't a legal challenge here for us to tell them that they need to comport with on remand.

[01:30:13] Speaker 04:
Well the legal challenge is we've demonstrated that their calculations are wrong and we've proved it the government didn't rebut.

[01:30:22] Speaker 04:
Thank you your honors.

[01:30:24] Speaker 03:
Thank you the case is submitted.