[00:00:06] Speaker 03: Good morning, counsel. [00:00:07] Speaker 04: Good morning. [00:00:08] Speaker 03: Whenever you're ready. [00:00:09] Speaker 04: May it please the court. [00:00:11] Speaker 04: Good morning. [00:00:12] Speaker 04: My name is Kyle Cutts. [00:00:14] Speaker 04: I represent Cedar Sinai Medical Center and Cedar Sinai Health System. [00:00:20] Speaker 04: I'd like to reserve four minutes for rebuttal. [00:00:24] Speaker 04: These lawsuits challenge Cedar's use of certain technologies on their websites. [00:00:30] Speaker 04: CEDARS operates its website much like it operates its hospital for the benefit of its patients and the communities it serves. [00:00:40] Speaker 04: But CEDARS website serves another purpose, a federal purpose. [00:00:45] Speaker 04: CEDARS operates its website in furtherance of the government's objective of a nationwide infrastructure of health information technology. [00:00:55] Speaker 01: So did the federal government's regulations require this interface with megapixel? [00:01:07] Speaker 04: What the federal regulations require. [00:01:10] Speaker 04: So the federal regulations establish what's known as the Meaningful Use Program and is now known as the Promoting Interoperability Program. [00:01:20] Speaker 02: Which is voluntary. [00:01:21] Speaker 04: Which is voluntary. [00:01:22] Speaker 02: That's problem one. [00:01:24] Speaker 02: Nothing was required. [00:01:25] Speaker 04: Well, participation in the meaningful use program is voluntary, Your Honor. [00:01:31] Speaker 04: But once a hospital elects to participate in the program, then its requirements are governed by the regulations promulgated by the Centers for Medicare and Medicaid Services. [00:01:43] Speaker 01: And was one of the requirements that they have an interface with Facebook? [00:01:48] Speaker 04: That was not a requirement of the regulation, Your Honor. [00:01:51] Speaker 04: What was required by the regulation is promoting interoperability of health records. [00:01:57] Speaker 04: And let me explain what that means using some tangible examples. [00:02:03] Speaker 02: So if I'm a patient at hospital... I think we know what it means. [00:02:06] Speaker 02: We probably all have it for ourselves. [00:02:09] Speaker 02: But the question still remains, as I understand it, where you're going is that there is some requirement that you track the use of this interface. [00:02:21] Speaker 04: That's precisely right, Your Honor. [00:02:23] Speaker 02: The Meaningful Use Program requires, among other things, for hospitals... But it still doesn't require that you do this by using an interface that then gives information to third parties. [00:02:35] Speaker 04: What it requires, Your Honor, is that hospitals ensure that its patients are using, downloading, and transmitting their health records. [00:02:47] Speaker 02: Right, so they need to count how many people are using this interface. [00:02:50] Speaker 02: It doesn't seem all that complicated. [00:02:52] Speaker 04: Well, the federal government was concerned that it was quite complicated. [00:02:55] Speaker 04: In 2004, President Bush issued the executive order that established the position of national coordinator with the goal of encouraging, among other things, greater patient involvement with their health records. [00:03:10] Speaker 04: The idea behind this was that if you get patients more involved with accessing their health records, using their health records. [00:03:17] Speaker 02: You're now way back here again, all right? [00:03:18] Speaker 02: Certainly, we understand that the government was trying to promote this. [00:03:25] Speaker 02: The government promotes many things. [00:03:26] Speaker 02: It builds highways. [00:03:27] Speaker 02: It thinks it's good to have a good highway system and so on. [00:03:33] Speaker 02: That doesn't mean that everybody who participates in any way in what the government is doing is a federal officer. [00:03:39] Speaker 02: I mean, you're about 100 miles away from there, so we need to know why. [00:03:43] Speaker 02: This all turns you into a federal officer. [00:03:46] Speaker 02: And Judge Bolton's questions are, I mean, even if they require you to use the pixel, I don't know if that makes you a federal officer. [00:03:53] Speaker 02: But if they don't require you to use anything like that, that seems to vastly undermine the notion that you're doing this under the supervision of the federal government or for their benefit. [00:04:08] Speaker 03: Or that the benefit in this case was an incentive, right? [00:04:12] Speaker 03: The incentive in this case was a payment. [00:04:14] Speaker 03: Have we ever held that providing this incentive is now turning this into a federal officer? [00:04:21] Speaker 04: I'm not aware of any case where the court has reached that precise conclusion drawback. [00:04:25] Speaker 03: Isn't that exactly what the third and the eighth circuits have done in the practically identical cases? [00:04:32] Speaker 04: They are similar cases, Your Honor. [00:04:34] Speaker 04: As I read the Third and the Eighth Circuits, what they're saying is that there's a lack of delegation to the private hospitals from the federal government, and therefore the private hospitals are not acting under the direction of the federal officers. [00:04:50] Speaker 04: I think where we disagree with the Third and Eighth Circuits reasoning is on this point of delegation. [00:04:55] Speaker 04: Watson holds indeed that formal delegation is one way that a private actor may act under a federal officer. [00:05:04] Speaker 03: So you want us to create a circuit split if we follow your... That's what you're asking us to do, right? [00:05:09] Speaker 04: I think that's an inevitability of the decision. [00:05:12] Speaker 04: There may be some work around to that, but none occurs to me. [00:05:15] Speaker 03: So explain to me how they're wrong. [00:05:17] Speaker 04: They're wrong because formal delegation isn't the end of the story with respect to the acting under provision. [00:05:23] Speaker 04: Watson goes on to provide that there's other indicia of acting under, including principal agent relationship, contractual relationship, and payment. [00:05:34] Speaker 04: And we've pointed to the payment in the form of the incentives here. [00:05:38] Speaker 01: Because the first two you don't have. [00:05:40] Speaker 04: We don't have a formal contract. [00:05:43] Speaker 04: We're not in a principal agent relationship. [00:05:45] Speaker 04: I would however say, Judge Bolton, that the incentive structure here is akin to a bargain for exchange. [00:05:52] Speaker 04: The government is searching for a [00:05:54] Speaker 04: creation and operation of the interoperable system of healthcare technology. [00:05:59] Speaker 04: It is bargained for the creation of that by private hospitals like Cedars-Sinai through the incentive program and through the... Yeah, I'm not sure just that you get there with just the payment. [00:06:09] Speaker 03: I mean, I see I can think back. [00:06:10] Speaker 03: So let's say you have farmers and farmer government [00:06:15] Speaker 03: at one point, maybe even now, has provided incentives for them to go organic and provides a payment incentive for them to do that. [00:06:25] Speaker 03: And so they build all, they put all these, plant all these trees, and let's say one of those trees falls on someone, okay? [00:06:31] Speaker 03: So now is that farmer somehow an officer, federal officer, is that what's happening here? [00:06:38] Speaker 03: Is that what we would, that's, because that's taking your analysis would get us there, doesn't it? [00:06:44] Speaker 04: I don't think so because there's more to the story with our circumstance through your honor and that by that we're building something, we're creating something and maintaining something that the government has decided it needs and does fall within a traditional government function. [00:06:59] Speaker 04: And I'm not sure farming fits within that rubric, but maybe it does. [00:07:04] Speaker 04: But let me explain the- I say that to the farmers, Councilman. [00:07:10] Speaker 04: That's fair. [00:07:12] Speaker 04: The government has decided that this interoperable health network is important. [00:07:18] Speaker 04: And consider the role the government plays in health care. [00:07:21] Speaker 04: It's a direct provider to the Department of Defense, the VA, the Bureau of Prisons, just to name a few. [00:07:28] Speaker 02: Well, let me just ask you a hypothetical. [00:07:32] Speaker 02: If there were no payment, first of all, as I understand it now, there is no longer a payment. [00:07:36] Speaker 02: In fact, there's just a penalty. [00:07:37] Speaker 02: There is no payment. [00:07:38] Speaker 04: That's correct. [00:07:40] Speaker 02: The incentive structure... So does your argument change at that point? [00:07:44] Speaker 04: No, I don't think so, because I think that still, even though there's no payment, the incentive has remained. [00:07:50] Speaker 04: The bargain for exchange remains, such that our participation, we continue to maintain Medicare rates. [00:07:57] Speaker 04: However, if we fail to be in it. [00:07:58] Speaker 02: So every federal contractor as a federal officer can remove any case that is filed against them with regard to the federal work, even if what they actually did that led to the case had nothing to do with anything they were ordered to do by the federal government. [00:08:14] Speaker 02: No, I don't... That has to be what you're saying. [00:08:17] Speaker 04: It's certainly not that every federal contractor acts under the federal officer, but I believe multiple... Why? [00:08:24] Speaker 02: So how is yours different then? [00:08:26] Speaker 04: Ours is different. [00:08:27] Speaker 04: We have supervision under the regulations. [00:08:30] Speaker 02: We act under... You have no supervision as to what gave rise to this case. [00:08:36] Speaker 04: Well, I think that goes to the causal connection prong, the causal nexus prong of the federal officer removal statute. [00:08:44] Speaker 04: And under this court's decision in Leite and De Fiore, the inquiry is whether the private actor committed the alleged offense or was engaged in the conduct because of or while performing the obligations [00:09:00] Speaker 04: required by the government. [00:09:02] Speaker 04: And under this, the case law suggests that you should credit the defendant's theory of the case. [00:09:09] Speaker 04: Here, plaintiffs allege that we've disclosed protected health information through the use of these technologies. [00:09:16] Speaker 04: Our theory of the case is that these technologies were deployed in furtherance of the requirements of satisfaction of the meaningful use program. [00:09:25] Speaker 04: Under the causal nexus prong, which this court [00:09:29] Speaker 02: This may not be relevant, but specifically why? [00:09:34] Speaker 02: I'm sorry? [00:09:34] Speaker 02: Specifically, why? [00:09:36] Speaker 02: And what way was this use of this pixel technology in furtherance of the project? [00:09:44] Speaker 04: So Cedars satisfies its requirements under the Meaningful Use Program through the operation of a patient portal, which sits on its website. [00:09:54] Speaker 04: The traffic that comes to its website, Cedars deployed these technologies to understand how people operated, [00:10:04] Speaker 04: with its website and to ensure that it was reaching people through its website. [00:10:10] Speaker 02: Well, I can do that fine, but why is it ending up in the hands of third parties? [00:10:14] Speaker 02: That has nothing to do with furthering the project. [00:10:19] Speaker 04: Well, again, Your Honor, the question is whether Cedars was engaged in a complaint of conduct which plaintiffs allege was the disclosure protected. [00:10:30] Speaker 03: Councilor, you didn't answer her question. [00:10:33] Speaker 04: Well, let me see if I understand the question. [00:10:36] Speaker 04: The question is why CEDARS use these technologies? [00:10:41] Speaker 03: To provide it to a third party. [00:10:44] Speaker 04: Our position is, Your Honor, we use these technologies in furtherance of here to help us comply with the meaningful use program, to understand how people interacted with our website, to optimize the website. [00:10:58] Speaker 02: We understand that. [00:10:59] Speaker 02: And we want to know why. [00:11:02] Speaker 02: having a particular technology that ends up in the hands of a third party has anything to do with anything that the federal government is asking you to do? [00:11:10] Speaker 04: And I think, Your Honor, the answer to that is these technologies help CEDARS use its website better. [00:11:20] Speaker 01: But couldn't they have just developed it themselves? [00:11:23] Speaker 01: I mean, why did they have to use a third party as opposed to build it into their own system? [00:11:32] Speaker 02: Or why does anything that the federal government has asked them to do require them to do that? [00:11:37] Speaker 04: Well, I think the answer there, Your Honor, is that even if CEDARS wasn't required to use these technologies, I don't know whether or not building it into their own website was even an option or not. [00:11:52] Speaker 04: But CEDARS used these technologies in further compliance with the Meaningful Use Program. [00:11:59] Speaker 04: I don't know if that has answered your question. [00:12:03] Speaker 04: Probably not, but go ahead. [00:12:07] Speaker 04: But I see that I've run into my rebuttal time. [00:12:09] Speaker 04: If there's further questions from the panel now, I'm happy to answer them. [00:12:12] Speaker 04: Otherwise, I'll reserve the remainder of my time. [00:12:13] Speaker 03: Thank you, sir. [00:12:14] Speaker 04: Thank you. [00:12:24] Speaker 00: Good morning. [00:12:25] Speaker 00: May it please the court, Rochelle Byrd, Wolf-Haldenstein, on behalf of Plaintiff's Epolies. [00:12:32] Speaker 00: In this case, California citizens are bringing California state law claims on behalf of a California class against a private California healthcare provider for placing tracking code on its website, which shared its patients' private health information with third parties such as Meta and Google. [00:12:51] Speaker 00: The purpose of the federal officer removal statute is to protect federal officers and agents acting within the scope of their authority. [00:12:59] Speaker 00: Judge Fisher properly remanded this case back to state court, where it's been proceeding ever since. [00:13:05] Speaker 00: And she did this based on the statute and the record before her. [00:13:10] Speaker 00: This court should affirm that order for three reasons. [00:13:13] Speaker 00: One, Cedars was not acting under. [00:13:17] Speaker 00: I'm sorry? [00:13:17] Speaker 02: Reading an argument for us is a very bad idea. [00:13:22] Speaker 00: I'm sorry. [00:13:24] Speaker 00: There's three reasons under the statute why this case should, you should affirm the remand order. [00:13:32] Speaker 00: One is CEDARS was not acting under a federal officer. [00:13:35] Speaker 00: The second reason is there's no causal connection between what CEDARS did and complying with the Meaningful Use Program that was a voluntary program. [00:13:45] Speaker 00: And third, CEDARS doesn't have a colorable federal defense. [00:13:49] Speaker 00: So I want to start with the first point, that CEDARS was not acting under a federal officer. [00:13:55] Speaker 00: CEDARS is a private entity engaged in private conduct. [00:14:00] Speaker 00: The Meaningful Use Program simply encourages health care providers to use electronic health technology for two [00:14:09] Speaker 03: Well, it encourages them, it incentivizes them by giving them a payment, right? [00:14:16] Speaker 03: And they indicate that, you know, we have to put a lot of weight, but also there were other things that you then had to comply with if you're in the program, that they had to comply with if they were in the program, correct? [00:14:28] Speaker 00: So initially there was a payment, now there's a penalty as part of participating in the program, correct? [00:14:34] Speaker 00: But that does not [00:14:36] Speaker 00: make them an agent of the federal government. [00:14:39] Speaker 00: It's as if I get a tax credit for buying an electric vehicle that doesn't make me an agent of the federal government. [00:14:46] Speaker 00: It's just a way to encourage the behavior that the government wants to see. [00:14:51] Speaker 00: And counsel pointed to language in Watson, and it's in the briefing as well, that talks about payment. [00:14:57] Speaker 00: But you have to read that in context. [00:15:00] Speaker 00: That one sentence is in the context of an agency or employment relationship. [00:15:06] Speaker 00: and we just don't have that here. [00:15:11] Speaker 01: If you decide to voluntarily participate in this program, as Cedars-Sinai did, do the federal regulations require that there be some type of tracking technology included within the digital medical records so that Cedars-Sinai can report back to the federal government as to how many people are using it and how often they're using it? [00:15:38] Speaker 00: Is that part of what the regulations require that which is what I understand the interface with with Facebook did yeah so there's some evidence in the record that the government wants these health providers to develop patient portals so people can access their records and it wants to know how well they're doing with this so some sort of evidence of [00:16:02] Speaker 00: how often a patient goes on to the portal to look at their records, or how often they download or print their records, or how often they send them to a new healthcare provider, because those are the goals of the program, right? [00:16:14] Speaker 00: But I saw nothing in the record that said, you should also, you should use this type of tracking technology and make sure it transmits private information. [00:16:23] Speaker 00: To third parties like meta and and Google in fact the opposite is true It talks a lot about privacy and one of the goals of this program increasing the privacy of electronic [00:16:35] Speaker 00: technology. [00:16:36] Speaker 03: But one of Council's arguments, and I understand what they're saying, they're saying, look, this is, and these are my words, but this is like a bridge where we've incentivized someone to build a bridge, cities to build bridges, and then they become federal officers. [00:16:53] Speaker 03: Why isn't this something big like that? [00:16:56] Speaker 03: Something, even though it might be something that we're creating in the internet to create these patient portals, [00:17:03] Speaker 03: This is something substantial the government is asking you to do and then incentivizing you and incentivizing them in such a way that they do become federal agents. [00:17:17] Speaker 00: I don't think encouraging and even highly regulating is enough under the case law. [00:17:23] Speaker 00: There has to be a contract, an agency, a delegation that [00:17:29] Speaker 00: the entity has to be doing something that if they didn't do it, the federal government would have to do it themselves. [00:17:35] Speaker 00: So yes, the government encourages entities to do all sorts of things, like going back to my example, people buying electric vehicles. [00:17:44] Speaker 00: But that doesn't create the type of relationship that Watson talks about that's key to the federal officer removal statute and that [00:17:54] Speaker 00: The purpose of the statute was to not have federal officers and people who were helping federal officers in [00:18:05] Speaker 00: in carrying out their duties be hauled into state court where there may be bias about the federal laws that were in play. [00:18:13] Speaker 00: None of that is happening here. [00:18:15] Speaker 00: We're not suing CEDARS over its compliance or noncompliance with the Meaningful Use Program. [00:18:20] Speaker 00: It's just really unrelated and I think CEDARS is trying to [00:18:25] Speaker 00: find something in the Meaningful Use program that it can point to to say, well, this is why we did this. [00:18:31] Speaker 00: But there's nothing in the record that would support that argument. [00:18:34] Speaker 02: Can you tell me what? [00:18:35] Speaker 02: Is there a related regulation that specifically governs the tracking that gave rise to this technology? [00:18:45] Speaker 02: I understand that it doesn't dictate the technology, but it dictates some sort of tracking. [00:18:52] Speaker 02: Where is that in the regulation? [00:18:54] Speaker 00: Are you talking about within the meaningful use program regulations? [00:18:57] Speaker 00: Yes, I did not see anything in the regulations about tracking technology. [00:19:01] Speaker 02: Are they supposed to tell the federal government how many people are using their interface? [00:19:09] Speaker 02: Is that in the regulations? [00:19:11] Speaker 00: In their reply papers, they cited to a part of the regulation that mentioned something about [00:19:18] Speaker 00: the government wanting to see a 10% increase in people visiting the portal or something of that nature. [00:19:24] Speaker 00: But that's as close as they get to the government saying, you know, tell us, the government's just basically saying show us that you're helping people to use their electronic records better. [00:19:39] Speaker 01: So the government's saying keep track of how many times people come to the portal and what they do there. [00:19:47] Speaker 00: Not directly, but that's the implication. [00:19:49] Speaker 02: But not what they do there. [00:19:52] Speaker 02: I mean, the complaint here, as I understand it, is that the information that was being collected included what medical information they were accessing and so on. [00:20:02] Speaker 02: There's nothing in the regulations that deals with that, you're telling me. [00:20:05] Speaker 00: Right, right. [00:20:06] Speaker 00: And in fact, the HHS came out [00:20:09] Speaker 00: and said, you should not be sending this information. [00:20:12] Speaker 02: Well, but that's sending. [00:20:13] Speaker 02: But I want to know, is there any application to collect it? [00:20:16] Speaker 00: Collecting? [00:20:17] Speaker 00: I did not see anything in the regulations about collecting the data and reporting to the government what people are doing on the website. [00:20:27] Speaker 00: No, I did not see that specificity. [00:20:29] Speaker 02: But there is some implication that you're supposed to at least be counting how many people are using it. [00:20:34] Speaker 00: There was a citation in their brief to one sentence that talked about a 10% increase of people who are discharged from hospitals. [00:20:42] Speaker 02: Well, there are all these regulations, though. [00:20:44] Speaker 02: And they do tell you to do a lot of things, just to tell you any of these. [00:20:47] Speaker 02: There's 42 CFR, 495.4. [00:20:51] Speaker 02: Oh, say anything about tracking how many people are or who or anything like that. [00:20:57] Speaker 00: I don't believe so. [00:20:58] Speaker 00: No. [00:20:59] Speaker 00: I didn't see anything. [00:21:03] Speaker 00: So. [00:21:06] Speaker 00: I think the main point here is that nothing that the federal government says in the regulations or in the manuals that were included in the record says for CEDARS to provide this information to third parties. [00:21:23] Speaker 00: And there's no contract here. [00:21:25] Speaker 00: Council talked about an exchange, a bargain for exchange. [00:21:29] Speaker 00: I think the government would be surprised to hear that there was some sort of implied contract here. [00:21:34] Speaker 00: This is a generally applicable voluntary program that people, sorry, healthcare providers can participate in. [00:21:42] Speaker 00: And if they do, they get to be reimbursed for all of their Medicare costs if they meet certain requirements. [00:21:50] Speaker 02: Your medical costs with regard to these interfaces. [00:21:53] Speaker 00: With respect, I think it's Medicare payments in general. [00:21:56] Speaker 00: That's the penalty is if they don't comply, then they don't get full reimbursement. [00:22:02] Speaker 01: There's some... So if a healthcare system like Cedars-Sinai had elected not to do this, their Medicare reimbursements would have been reduced now that they're in the penalty phase as opposed to the incentive phase? [00:22:17] Speaker 00: I believe that's correct, yes. [00:22:22] Speaker 00: So the second prong of the statute requires causation, some causal connection. [00:22:29] Speaker 00: I've already talked a little bit about that. [00:22:32] Speaker 00: The court doesn't even need to go to that second prong because the first prong isn't met here. [00:22:37] Speaker 00: But even if it had been, CEDARS hasn't demonstrated that what it did, I'm sorry, [00:22:47] Speaker 00: that it's being sued because of its compliance with the meaningful use program or what it did to comply was the reason it was being sued. [00:22:55] Speaker 00: There's no causal connection there. [00:22:58] Speaker 00: And that Isaacson in the Second Circuit, that case talks about the conduct that needs to be done because of what the defendant was asked to do by the government. [00:23:09] Speaker 00: The government certainly didn't ask CEDARS to integrate this tracking code into its website. [00:23:14] Speaker 02: and it wasn't necessary. [00:23:16] Speaker 02: You're saying more than that. [00:23:17] Speaker 02: You're saying that the government didn't even ask them to collect this information on its own. [00:23:23] Speaker 00: I don't think that's part of the Meaningful Use Program. [00:23:26] Speaker 00: I think the Meaningful Use Program is designed to encourage health care providers to adopt certain technology that will allow the patients to access and transport their records. [00:23:38] Speaker 02: Well, I understand that, but the government might want to know if anybody's actually using this, but you're saying that maybe they want to know that, but beyond a head count, they don't seem to want any more information about the actual use of these [00:23:53] Speaker 02: Intervases that's that's correct. [00:23:56] Speaker 03: I'm surprised counsel. [00:23:57] Speaker 03: You haven't mentioned the third in the Eighth Circuit cases Are you asking us to follow those to distinguish those? [00:24:03] Speaker 00: I'm asking you to follow those that is Something I was going to mention in terms of the acting under the Eighth Circuit in BJC talked about how the design of private websites is not a government concern it's a private concern and it's never been a [00:24:21] Speaker 00: basic governmental task and the Third Circuit in Moore versus trustees [00:24:29] Speaker 00: said the defendant there was doing its own business, not the business of the federal government. [00:24:33] Speaker 02: So I think those two... Well, hypothetically, if there were a regulation that said that you need to tell the government who's using it and how people with different medical problems are using it and so on, and there was also a showing that to do that you needed some sophisticated [00:24:55] Speaker 02: software that the, I know this doesn't exist, but that the Cedars-Sinai could not integrate on its own and needed some third party, then what? [00:25:09] Speaker 02: That it would be different? [00:25:12] Speaker 02: If they could demonstrate that there was no way to do this except to take some proprietary [00:25:21] Speaker 02: software, which was going to result in the proprietor of the software getting the information. [00:25:28] Speaker 00: The software was not required. [00:25:31] Speaker 00: In order to track activity on a website, you don't have to have the settings such that they'll go to Facebook or Google. [00:25:38] Speaker 00: And there's other third-party vendors who will help you track. [00:25:43] Speaker 00: There were other vendors, I believe, that worked with Steeners. [00:25:46] Speaker 02: and their website to help them understand what's happening. [00:26:02] Speaker 02: subsist or prevail is what you're saying. [00:26:05] Speaker 00: Well, everything except the sharing part. [00:26:08] Speaker 00: In fact, I think Facebook's policies say, don't give us PHI, don't give us PII. [00:26:14] Speaker 00: I just think that Cedars didn't heed that, and it had the pixel on its website. [00:26:20] Speaker 00: It was set up to transmit the information. [00:26:24] Speaker 00: It wasn't necessary. [00:26:25] Speaker 03: I want to go back to her hypothetical. [00:26:27] Speaker 03: There are situations where the government could require additional things of folks such that they would sort of fall in line more with that typical control that maybe the third and the eighth circuit have been talking about. [00:26:41] Speaker 00: There are situations. [00:26:43] Speaker 00: This is not the situation, but there are situations where the government has direct control and supervision. [00:26:50] Speaker 00: There are plenty of cases in the briefing where that was the case. [00:26:53] Speaker 00: There was a contract, or there was some sort of agency relationship, or an employer-employee relationship. [00:27:02] Speaker 00: But not simply just regulations, complying with the law. [00:27:10] Speaker 00: encouraging, you know, the government encouraging people to behave a certain way. [00:27:14] Speaker 00: That's not enough to get the case removed. [00:27:18] Speaker 02: Well, the Medicare relationship is a contractual relationship. [00:27:21] Speaker 00: I'm sorry, say that again? [00:27:22] Speaker 02: The Medicare relationship with the government is a form of a contractual relationship, it seems to me. [00:27:27] Speaker 00: I'm sure there are contracts involved, yes. [00:27:29] Speaker 02: And the incentive is a penalty on that relationship. [00:27:36] Speaker 00: Right. [00:27:37] Speaker 00: The government wants the Medicare providers... As to the Medicare part of it. [00:27:42] Speaker 00: Right. [00:27:43] Speaker 02: Not as to everything else, but as to the Medicare part of it. [00:27:45] Speaker 00: Right. [00:27:46] Speaker 00: The government has an interest in making sure its Medicare recipients can access their health records. [00:27:52] Speaker 02: And so the question is whether that piece, as to that piece, if there were a closer connection between what they were doing and what they were required to do, there might be a federal officer relationship. [00:28:05] Speaker 00: Yes, if there was direction here, I don't see any direction in the record that would fit with the hypothetical that you gave. [00:28:16] Speaker 00: All right. [00:28:16] Speaker 00: Thank you, counsel. [00:28:17] Speaker 00: Thank you, your honor. [00:28:32] Speaker 04: Thank you, Your Honors. [00:28:34] Speaker 04: I'd like to turn to the rural electrification cases. [00:28:38] Speaker 04: These are cases out of the 3rd, 5th, and 11th circuits. [00:28:41] Speaker 04: These are cases in which the private cooperatives engaged in the creation of electric infrastructure. [00:28:48] Speaker 04: The federal government realized that there was a lack of electric power reaching rural and underserved communities. [00:28:54] Speaker 04: It engaged with rural electric cooperatives to provide electricity. [00:28:58] Speaker 02: But didn't it essentially create the cooperatives? [00:29:00] Speaker 02: I understand they were private organizations, but the federal government almost dictated the creation of those cooperatives. [00:29:10] Speaker 04: I believe that's correct, Your Honor, but these were nonetheless private cooperatives. [00:29:16] Speaker 02: It's my understanding. [00:29:17] Speaker 02: They're now private, but they were... [00:29:20] Speaker 02: generated essentially by the federal government to begin with. [00:29:22] Speaker 02: The federal government did not generate Cedars-Sinai. [00:29:26] Speaker 04: That's a fair point, Your Honor. [00:29:27] Speaker 04: By the time these private cooperatives were sued for failing to provide dividends, my understanding is they were clearly operating as private entities. [00:29:37] Speaker 04: And the argument was that they were engaged in a combined federal-private initiative to create infrastructure. [00:29:44] Speaker 03: Infrastructure creation is part of the meaningful- Campbell, that's completely different than what we have here, isn't it? [00:29:49] Speaker 04: Respectfully, I don't think so. [00:29:51] Speaker 04: It's a very different kind of infrastructure, Your Honor. [00:29:53] Speaker 04: But when I talk about infrastructure, I'm thinking of the creation of digital roads connecting private providers, abilities of hospitals to transmit electronic records to other hospitals to further patient care. [00:30:06] Speaker 04: And more specifically here, through the Meaningful Use Program, the ability of patients to view, download, and transmit their medical records. [00:30:16] Speaker 02: But none of that is what this case is about. [00:30:20] Speaker 02: I mean, you keep going back three steps, but this case is about these tracking systems. [00:30:27] Speaker 02: Is your opponent correct that there is nothing in the regulations that requires such a tracking system? [00:30:34] Speaker 04: My understanding is that there's nothing in the regulations that requires Cedars-Sinai to use the challenge technologies here. [00:30:42] Speaker 02: No, no, that's not what I'm asking you. [00:30:44] Speaker 02: Please listen to the question. [00:30:45] Speaker 02: Is there anything in the regulations that requires tracking? [00:30:50] Speaker 04: No, what is required is the use, is the reporting to the federal government of how patients view, how many patients view- All right, where is that in the regulations? [00:31:01] Speaker 04: It's in a few different spots because the regulations have changed over time. [00:31:05] Speaker 04: For the time period of 2015 to 2018, that's at 42 CFR 495.20. [00:31:10] Speaker 04: From 2015 to 2018, [00:31:16] Speaker 04: The requirements are 42 CFR 495.22, and from 2018 to 2023 and onward, which is stage three of the Meaningful Use Program, that's at 42 CFR 495.24. [00:31:30] Speaker 02: So Ms. [00:31:36] Speaker 02: Byrd was incorrect when she said it's not in the regulations. [00:31:40] Speaker 02: Well, I'm... [00:31:44] Speaker 04: I'm trying to, I'm trying to, there may be different uses of tracking going on here. [00:31:50] Speaker 04: I think when Ms. [00:31:51] Speaker 04: Byrd is referring to tracking, she's referring to the technologies like the Facebook Pixel, the Google Analytics, things like that that they allege are tracking user behavior and reporting protected health information to Facebook. [00:32:05] Speaker 04: We disagree with that. [00:32:06] Speaker 04: The regulations are targeted towards ensuring that hospitals understand how patients are using tools like the patient portal to engage in the behavior that the government wants to see, which these view, download, and transmit records. [00:32:24] Speaker 04: So I hope that's a helpful explanation. [00:32:28] Speaker 02: Meaning that the regulations, I don't have those regulations, I don't think. [00:32:34] Speaker 02: The regulations require that you count heads in some respect and that you, with regard to what kind of medical care they're accessing and so on. [00:32:49] Speaker 04: It requires us to report percentages of patients using these techniques, engaging in this behavior. [00:32:56] Speaker 04: A meaningful user of electronic. [00:33:00] Speaker 03: But not the objective use, which is transmitting this to a third party. [00:33:07] Speaker 04: That's correct. [00:33:08] Speaker 04: And I realize I'm wrong. [00:33:09] Speaker 02: But also not, as you're explaining it, anything specific except that they're using it. [00:33:15] Speaker 04: Correct. [00:33:15] Speaker 04: That they're engaging in the behavior. [00:33:17] Speaker 04: A head count. [00:33:19] Speaker 04: It is, it's a head count reflected in the percentage of patients that have engaged in the behavior. [00:33:24] Speaker 02: Not engaged in using the interface, not how they're using it or what medical issues they're using it for or whether they're using it for appointments or to make inquiries or anything just that they're using it. [00:33:40] Speaker 03: That's correct. [00:33:43] Speaker 03: All right, are there any other questions? [00:33:45] Speaker 03: None. [00:33:45] Speaker 03: Okay, thank you. [00:33:46] Speaker 03: All right, thank you. [00:33:48] Speaker 03: This matter shall stand submitted.