[00:00:00] Speaker 00: The court will hear argument in number 21-1986, Feist against the United States. [00:00:07] Speaker 00: Ms. [00:00:07] Speaker 00: Key, please begin whenever you're ready. [00:00:11] Speaker 03: Good morning. [00:00:11] Speaker 03: May it please the court, Elizabeth Key, representing plaintiff appellant, Dr. Robert Feist. [00:00:18] Speaker 03: Your Honor, the primary care incentives payment program, or PCIP, which was in effect from 2011 until 2016, [00:00:27] Speaker 03: mandated that the federal government pay certain primary care practitioners a 10% incentive payment for certain primary care services. [00:00:37] Speaker 03: It is undisputed that Dr. Feis was entitled to receive payments under the PCIP. [00:00:44] Speaker 01: However... Is that correct, counsel? [00:00:47] Speaker 01: I thought it was not... I thought it was disputed whether he was properly coded to receive payments. [00:00:56] Speaker 03: Your Honor, it's our position that the evidence is clear that Dr. Fife was in fact entitled to payment. [00:01:04] Speaker 03: There's a bit of discrepancy in the record as to what the facts are. [00:01:08] Speaker 01: Isn't the issue not whether the facts support his proper coding is that he actually, in fact, is coded a certain way that doesn't entitle him to payments? [00:01:21] Speaker 01: Isn't it true that his coding did not entitle him to payments? [00:01:26] Speaker 01: whether that coding is correct or not. [00:01:29] Speaker 03: Yes, Your Honor. [00:01:31] Speaker 01: And so the problem is you need to go to a court or an administrative body that can correct that coding, right? [00:01:40] Speaker 03: Your Honor, we disagree that Dr. Feist's claim ultimately centers on his identification as a primary care practitioner. [00:01:50] Speaker 03: We think that the language of subpart four is clear. [00:01:53] Speaker 03: It's limited to a certain category of claims. [00:01:55] Speaker 03: It's claims respecting identification. [00:01:58] Speaker 03: Of course, any claim under the PCIP in some form or fashion is going to involve identification. [00:02:06] Speaker 03: You're not entitled to PCIP payments unless you're identified to be a primary care practitioner. [00:02:12] Speaker 03: But what I don't think that the bar on judicial review means is that the government can make a simple mistake [00:02:18] Speaker 03: and thereby deprive an eligible practitioner from the payments to which he or she is entitled. [00:02:26] Speaker 03: So I think an example helps illustrate what I think Congress intended to bar from judicial review by enacting a bar on this category of identification of primary care practitioners. [00:02:39] Speaker 03: So take, for example, an oncologist who would be a specialist. [00:02:43] Speaker 03: An oncologist provides primarily non-primary care services [00:02:49] Speaker 03: to patients that pay cash or have commercial insurance. [00:02:52] Speaker 03: But on occasion, the specialist provides primary care services to Medicare patients on the referral of family or friends. [00:03:00] Speaker 03: So when the specialist does bill Medicare, it's always through primary care services. [00:03:07] Speaker 03: So they usually meet the statutory threshold of 60% primary care services. [00:03:12] Speaker 03: So the CMS nonetheless determines that the specialist is not eligible for primary care [00:03:17] Speaker 03: for payments under the PCIP because a specialist is a specialist and they don't have a primary care designation. [00:03:25] Speaker 03: That physician wants to appeal. [00:03:28] Speaker 03: He says, you know, I should be... [00:03:32] Speaker 01: My issue is, why were you in the court of federal claims? [00:03:37] Speaker 01: What you're trying to argue against is that they've been improperly disqualified because they're not being treated as a primary care physician. [00:03:48] Speaker 01: The court of federal claims is a court of [00:03:50] Speaker 01: The statute requires that they be coded as a specific type of doctor before they get payment, correct? [00:04:06] Speaker 03: Yes, Your Honor, we believe that. [00:04:08] Speaker 01: You can't meet that requirement because he's been incorrectly coded, or incorrectly treated, or whatever. [00:04:15] Speaker 01: There may be some other avenues of judicial review, but why is it in the court of federal claims? [00:04:23] Speaker 03: Your Honor, we believe that there's tether actor's fiction for Dr. Weiss's claims against the federal government. [00:04:30] Speaker 03: because it violated an unambiguous statutory mandate that it pay eligible physicians. [00:04:36] Speaker 03: And there is clear evidence as the lower court twice found that Dr. Feist was in fact eligible to such payments. [00:04:44] Speaker 03: And so this is a clear, we contend this is a clear Tucker Act way. [00:04:48] Speaker 03: There was an unambiguous shall pay language that requires the federal government to in fact pay eligible conditions. [00:04:55] Speaker 03: We have submitted evidence that Dr. Fice was in fact in eligible conditions. [00:05:00] Speaker 03: And so really the thrust of Dr. Fice's claim is that the government should be forced to rectify whatever internal error it committed [00:05:09] Speaker 01: Okay, so I get your argument on that. [00:05:13] Speaker 01: You might have some argument there if you made a direct appeal, but we're on a 60B motion, right? [00:05:19] Speaker 03: Yes, Your Honor. [00:05:20] Speaker 01: And it's an abuse of discretion standard on whether the court should reopen that. [00:05:25] Speaker 01: And your argument is these two Supreme Court cases [00:05:29] Speaker 01: were grounds. [00:05:30] Speaker 01: But what do the Supreme Court cases have to do with anything here? [00:05:33] Speaker 01: There's no dispute by the government that if he was qualified, this is a money landing statute. [00:05:39] Speaker 01: Why do these cases say anything beyond if there's an obligation you have to pay? [00:05:45] Speaker 01: Which we already knew. [00:05:46] Speaker 03: Sure. [00:05:48] Speaker 03: So [00:05:49] Speaker 03: Your honor, the Supreme Court announced a directive in Maine community health options, which we can set concerned is a super meeting change in law, which warrants 60 release here. [00:06:00] Speaker 01: So what was the change in law that wasn't already existing? [00:06:06] Speaker 01: I mean, your argument to me just now was the statute was very clear that doctors like your client were entitled to money under the statute. [00:06:16] Speaker 01: The main healthcare case didn't say anything about that statute, and it didn't change the nature of what a money mandating statute was. [00:06:24] Speaker 01: So why would that be sufficient for a Rule 60B change in law? [00:06:30] Speaker 03: Your honor, so of course there's a different payment mechanism at issue in main community health options. [00:06:37] Speaker 03: There's the risk corridors program and here's the PCI. [00:06:40] Speaker 03: Of course, we can tell that that distinction is in material. [00:06:44] Speaker 03: Both cases fall within the statutory scheme of the Affordable Care Act and they both involve mandatory shall pay language. [00:06:53] Speaker 03: In the case of main community health options, the question on the field is whether the federal government was in fact required to pay insurers the full amount of the cost sharing reduction payments by virtue of this unambiguous shall pay language. [00:07:09] Speaker 03: What happens is that- Can I interrupt you a minute? [00:07:12] Speaker 01: Do you think there was any dispute that the government had to pay the Medicare payment under the specific statute we're talking about in your case? [00:07:22] Speaker 01: Did the government ever oppose the notion that it had to pay these premiums under the statute? [00:07:28] Speaker 03: The government took the position in Maine community health option. [00:07:31] Speaker 01: In the Maine community, in your case, has there ever been any dispute about whether that statute required payment? [00:07:40] Speaker 03: Well, Your Honor, the government has taken the position. [00:07:44] Speaker 01: As a whole. [00:07:46] Speaker 01: The government would agree that if somebody is a primary care physician, they're entitled to payment of money under that statute, correct? [00:07:54] Speaker 01: Correct. [00:07:56] Speaker 01: They agreed with that before Maine Community, correct? [00:08:00] Speaker 01: That's correct. [00:08:01] Speaker 01: So what does Maine Community have to do with this case at all? [00:08:05] Speaker 03: What Maine Community tells us about this case is how to construe the bar to judicial review in light of the mandatory child pay language. [00:08:16] Speaker 03: So in Maine community, there was the same language. [00:08:18] Speaker 02: The Maine community did not involve a bar to judicial review, right? [00:08:23] Speaker 02: That's right. [00:08:24] Speaker 02: That's right. [00:08:25] Speaker 03: But the similarity is this. [00:08:27] Speaker 03: If I'm going to, if I'm in the most basic terms, there's clear congressional intent stolen by a shall pay language. [00:08:34] Speaker 03: That's the same in both pieces. [00:08:36] Speaker 03: What's also the same in both pieces is something else. [00:08:40] Speaker 03: In the case of Maine communities, something else is Congress's independent decision not to appropriate funds for the risk corridors program. [00:08:49] Speaker 03: The Supreme Court said even that, that Congress's independent decision that it wasn't going to fund this program was not enough to trump the clear statutory language. [00:09:01] Speaker 03: We submit that logic applies equally here. [00:09:04] Speaker 02: So your view, wait, just let me make sure I understand. [00:09:08] Speaker 02: So your view is that the judicial bar, the bar and judicial reviewer administrators review should be, that that's analogous to what was at issue in Maine Community Health in terms of not funding the payments? [00:09:25] Speaker 03: It's not analogous in the sense that it has to do with the allocation of funds. [00:09:31] Speaker 03: It's analogous in a more basic sense. [00:09:33] Speaker 03: There's two acts of Congress, right? [00:09:35] Speaker 03: There's the act of Congress that says the federal government has to pay eligible physicians. [00:09:40] Speaker 03: And at the same time, there's another act, which is the imposition of this barred judicial review. [00:09:46] Speaker 03: So how are we to understand these two actions, right? [00:09:50] Speaker 03: One says there's a mandatory obligation, and the other says there's no review. [00:09:55] Speaker 03: So we think that the clear congressional intent of the mandatory shall pay language, Trump, whatever vague congressional intent there is in the judicial bar, which has this language of identification of primary care practitioners. [00:10:13] Speaker 02: Excuse me, Council, there are other statutory schemes that involve limitations like the one at issue here that say there should be no judicial review of this determination, right? [00:10:26] Speaker 02: I mean, this is not the first time Congress has ever done this. [00:10:31] Speaker 02: Congress does take this kind of action because they don't want to see a lot of litigation over something involved in the scheme. [00:10:38] Speaker 02: They're allowed to do that, right? [00:10:40] Speaker 03: Certainly, certainly. [00:10:41] Speaker 03: And so we think what Congress intended is evidenced by the plain words of the bar on judicial review. [00:10:48] Speaker 03: It said, identification of primary care practitioners. [00:10:51] Speaker 03: If it wanted to bar any claim relating to the PCIP in any form or fashion, it could have still stated by saying there shall be no judicial review, period. [00:11:00] Speaker 03: We think there was a carve out intended here. [00:11:03] Speaker 03: And the purpose ultimately was, as you mentioned, the practical administration of the program. [00:11:09] Speaker 03: You don't want every physician under the plan contesting whether or not they're eligible. [00:11:15] Speaker 03: But that's not really what's happening here. [00:11:17] Speaker 02: What's happening here... How about the name community health? [00:11:20] Speaker 02: Make it so that interpretation has been altered. [00:11:23] Speaker 02: How does Maine Community Health make under Rule 60B, make it so that is a new argument I suppose that you have as a result of Maine Community Health. [00:11:32] Speaker 02: I don't think it is a new argument. [00:11:33] Speaker 02: I think it's the argument made all along. [00:11:35] Speaker 02: So I'm just having a hard time understanding if that's your argument, how do I get that from Maine Community Health? [00:11:42] Speaker 03: We think that Maine Community Health really announced a directive to the court that the federal government shouldn't be allowed to hide behind an independent act. [00:11:54] Speaker 03: Here it would be the bar to judicial review when a mandatory shall pay obligation in that issue. [00:12:01] Speaker 03: And so of course, yes, it's not that there's no judicial bar in the Maine Community Health Office. [00:12:05] Speaker 01: Are you saying that Maine Community Health made this bar on judicial review impermissible? [00:12:12] Speaker 03: Ultimately, no, Your Honor, we're not saying that. [00:12:16] Speaker 03: We're saying that Maine community provides a roadmap to the lower court for how to construe this bar to judicial review narrowly as the law requires. [00:12:28] Speaker 01: And in light of the mandatory shell pay language, which according to me- Isn't that argument available to you before Maine community? [00:12:37] Speaker 03: Certainly, and we made it in opposition to the government's motion. [00:12:41] Speaker 01: And you did an appeal. [00:12:44] Speaker 03: That's right, Your Honor. [00:12:45] Speaker 03: We didn't appeal certain tactical decisions. [00:12:47] Speaker 01: If the argument was available to you prior, then how is it sufficient grounds for a Rule 60B? [00:12:55] Speaker 01: If the legal grounds were there for you to make, then the Maine community didn't make a change in the law. [00:13:01] Speaker 01: It may have given you additional citation, but it didn't change the law that made an otherwise unavailable argument suddenly available. [00:13:12] Speaker 03: Your Honor, I think the change in law can either mean an actual change in law, right, the statute is overruled, but it can also mean just calling into correctness, calling into question the correctness and viability of the court's logic. [00:13:27] Speaker 03: And we believe that means that's exactly what Maine's community health options did here. [00:13:35] Speaker 03: So I see that I'm running out of time and I need some time for a rebuttal. [00:13:38] Speaker 00: Okay, thank you very much. [00:13:40] Speaker 00: We'll hear from Ms. [00:13:41] Speaker 00: Fomenkova. [00:13:45] Speaker 04: Morning, Your Honor. [00:13:46] Speaker 04: May it please the Court. [00:13:48] Speaker 04: There are two independent but equally sufficient reasons to affirm the Court of Federal Claims' denial of Rule 60E released here. [00:13:56] Speaker 04: Number one is the subject of some discussion just now, which is that there has been no intervening change in the law. [00:14:04] Speaker 04: Maine community was not about the primary care incentive payments. [00:14:08] Speaker 04: And just to be very clear, both before and after Maine community, [00:14:12] Speaker 04: These incentive payments that are issued here were only obligated to be paid to primary care physicians. [00:14:19] Speaker 04: Both before and after main community, Dr. Feist was not a primary care physician in the CMS system. [00:14:25] Speaker 04: And both before and after main community, judicial review was barred on the question of whether or not he should have been a primary care physician in the CMS system and therefore eligible for these payments. [00:14:36] Speaker 00: Can I just ask, I know you want to, this is probably getting ahead to the next step. [00:14:42] Speaker 00: I was left in some confusion about this question whether the statute guarantees the payments to someone in fact in the real world is a primary position as that is defined by the substance of the work done. [00:15:02] Speaker 00: or whether it is limited to somebody who has some government computer coding or designation or identification in the government system. [00:15:14] Speaker 00: And those two things can be different if somebody who in fact is a primary care physician subsequently doesn't have that designation in the government's computer system. [00:15:30] Speaker 00: First of all, [00:15:31] Speaker 00: Which is it? [00:15:32] Speaker 00: And second, if you have to have a designation in the system, what's the statutory language you're relying on? [00:15:42] Speaker 04: As to your honor, I think in the first instance, I would say that's a little bit of a metaphysical question in light of the statutory bar that prohibits the courts from addressing that issue. [00:15:52] Speaker 04: But what I would say sort of factually, I know that CMS has issued regulations that define who primary care physicians would be and how they would define the primary care physicians. [00:16:03] Speaker 04: And so the statute explicitly limits the primary care incentive payments to primary care physicians. [00:16:10] Speaker 04: CMS added regulations on top of that sort of to explain who would be considered primary care physicians and Dr. Feist for the three years that are an issue here was not coded. [00:16:22] Speaker 04: And I think there's no dispute that sort of under the coding that he was in the system, he did not meet the regulatory definition of a primary care physician. [00:16:32] Speaker 00: So I think I'm just going to repeat my question. [00:16:34] Speaker 00: Let's assume that all of the work that he did would qualify him to somebody who is correctly applying the standards as a primary care physician, but that on the other hand, he is not in fact coded in the system as such. [00:16:50] Speaker 00: So the coding is an error, is a mistake. [00:16:55] Speaker 00: Is he entitled under the statute to the benefit? [00:16:59] Speaker 04: So if it's a clerical error, the CMS allows it. [00:17:04] Speaker 04: Forget about how the error came about. [00:17:08] Speaker 04: I think so long as he is in CMS as not coded as a primary care physician, he would not be entitled to payments under the statute. [00:17:18] Speaker 00: Even though he would be substantively entitled to be so coded. [00:17:23] Speaker 00: I'm just trying to understand what your view of the statute is and why that's correct if that's your view. [00:17:30] Speaker 04: I think my primary view here is that question obviously doesn't matter. [00:17:38] Speaker 04: I get that. [00:17:40] Speaker 04: But I think that sort of that there is CMS issued regulations defining who a primary care physician would be. [00:17:48] Speaker 04: Where are they? [00:17:54] Speaker 04: Appendix state forty two to forty three, which is the letter that CMS wrote to Dr vice while while this issue was being investigated at the time. [00:18:04] Speaker 04: And so they identify sort of how they define primary care positions and why Dr vice did not meet that definition. [00:18:12] Speaker 04: And they reference an investigation that CMS performed and why it can and sort of the results of that investigation were that they could not recode him and that there was not a clerical or mathematical error here. [00:18:26] Speaker 01: But your view is it doesn't matter. [00:18:32] Speaker 01: whether that was correct or not, there's no judicial review of that position. [00:18:35] Speaker 01: Is that right? [00:18:37] Speaker 04: Exactly, Your Honor. [00:18:37] Speaker 04: That question is one that has not been litigated in this case and cannot be litigated in any case, because Congress explicitly and for a minimum court... So let me ask you this hypothetical. [00:18:51] Speaker 01: Suppose the requirements to be a primary care physician were one, two, and three. [00:18:59] Speaker 01: And there's no dispute that the physician meets one, two, and three. [00:19:07] Speaker 01: But nevertheless, the government says, we're not going to give you the money. [00:19:11] Speaker 01: You're out under the statute, even if you undisputably meet one, two, and three. [00:19:18] Speaker 01: In your view, they can't come to the Court of Federal Claims and say, we meet one, two, and three, and therefore are entitled to money. [00:19:27] Speaker 04: So I think, Your Honor, it depends on whether they're, so if, for example, you are coded, you know, one of the one, two, and three is that you have. [00:19:38] Speaker 01: I'm trying to get beyond the coding and get to their decision on entitlement. [00:19:44] Speaker 01: So. [00:19:46] Speaker 01: The coding seems to me to be a technical way of describing what's going on here, which is they've made a determination that he's not entitled to be considered a primary care physician. [00:19:57] Speaker 01: And the question is, I understand your view is that that's not reviewable. [00:20:05] Speaker 01: But is that really the case if the statute says you get money [00:20:10] Speaker 01: if you meet, if you're a primary care physician, and they set out requirements for what they think a primary care physician is, and he's met all three of those. [00:20:21] Speaker 04: Again, speaking hypothetically. [00:20:27] Speaker 04: He would not then need all three of those because the regulations are that one of the requirements is that you have to be coded in CMS as a primary care physician. [00:20:36] Speaker 01: Okay. [00:20:36] Speaker 01: So your view is my hypothetical is not particularly helpful because one of the requirements to get payment would always be that you've been determined to be or you're designated a primary care physician by CMS. [00:20:53] Speaker 04: Right. [00:20:54] Speaker 04: And if you haven't, so for example, if Dr. Fiske had been a primary care physician in the CMS system and we hadn't paid him for some other reason, then we agree that that would not have been subject to the bar on judicial review because then the sort of the first step in the inquiry is not, is he a primary care physician? [00:21:12] Speaker 01: Isn't the logic of your decision then if CMS makes a mistake [00:21:16] Speaker 01: that's undisputed on whether somebody's a primary care physician, then there's no judicial review of that estate, even though it's clear somebody's entitled to be famous. [00:21:27] Speaker 04: I mean, I think, Your Honor, that is the consequence of the express statutory bar. [00:21:33] Speaker 04: The bar was that there would be no judicial review of the identification of primary care physicians, and there's no sort of carve out to that. [00:21:41] Speaker 04: So sort of necessarily that means that conceivably if there's a mistake, that that mistake is not one that the courts can correct. [00:21:51] Speaker 04: In this case, [00:21:52] Speaker 04: So the issue is that, and the court actually originally identified the issue. [00:21:57] Speaker 01: Can I just ask, isn't the judicial bar supposed to limit the courts from looking at the facts of the case and saying you're a physician, primary care physician, you're not a primary care physician? [00:22:10] Speaker 01: But you're not saying that that's not what we can't decide. [00:22:15] Speaker 01: But you're saying what we can't decide is a checking of a box about whether you're a primary care physician or not. [00:22:23] Speaker 04: Well, Your Honor, I think in this case, if this case had been litigated, the question would have been the way that Your Honor formulated it originally. [00:22:32] Speaker 04: It would have been that the court would have to look at the facts presented by Dr. Feist and the results of the investigation conducted by CMS, and then conclude who was correct as to whether or not he should have been designated as a primary care physician. [00:22:46] Speaker 04: And that's precise. [00:22:48] Speaker 01: That goes back to your view that whether he's primary care physician is not undisputed here. [00:22:53] Speaker 04: I don't think it's undisputed here, Your Honor. [00:22:55] Speaker 04: I think that question wasn't litigated because the court concluded that it couldn't have been litigated. [00:23:00] Speaker 04: And so the judge expressed certainly some views based on the evidence that was presented by Dr. Vice, but there was no other additional evidence presented because it was originally decided on a motion to dismiss. [00:23:13] Speaker 04: But more fundamentally, I would say that because this is a Rule 60B6, [00:23:17] Speaker 04: appeal and not a direct appeal, but really the question is whether Maine community changed anything on that issue and whether or not the district court was correct in interpreting the bar on judicial review back in 2018 and we submit that he was correct then as well. [00:23:34] Speaker 01: I think, I mean, I'm going to take you back to what I was asking just one last time, because I think what concerns me here is, and it sounds like you don't think this is a situation, but there's a situation where there can be no dispute whatsoever that the person, the doctor is a primary care physician. [00:23:55] Speaker 01: that everything about the person's practice, what they do, how they bill, and somebody at CMS has just made a mistake and refuses to fix it. [00:24:05] Speaker 01: And it seems like the logic of your argument is, well, if CMS makes the mistake and refuses to fix it, no court can review that. [00:24:16] Speaker 01: Is that right? [00:24:17] Speaker 04: I mean, I think, Your Honor, that is ultimately the result of the bar on judicial review. [00:24:23] Speaker 04: I think that CMS does have a mechanism. [00:24:26] Speaker 04: Their regulations allow them to fix clerical errors, for example, and mathematical errors. [00:24:31] Speaker 04: And so in that hypothetical, if it was that clear and it was just sort of a goof that somebody made in checking the final box, [00:24:38] Speaker 04: that there is a mechanism that existed for CMS to fix that. [00:24:43] Speaker 04: In this case, they undertook an investigation that Dr. Feist was involved with and concluded that there was not a clerical error, and that was sort of the basis of their original rejection of [00:24:54] Speaker 04: Correcting what he perceived to be to be an error in his designation. [00:24:58] Speaker 04: But ultimately sort of main community did not did not change anything about the original analysis of this case. [00:25:05] Speaker 04: The whole, you know, Dr. Price characterizes the whole ring of main community as the government is obligated to pay its debts. [00:25:12] Speaker 04: And we submit that that was not a new pronouncement of law in 2020. [00:25:17] Speaker 04: Ms. [00:25:18] Speaker 00: Sharmakova, what do you think the Appendix Page 43, the CMS letter means when it says, we've looked at your records and we don't see a clerical or mathematical error? [00:25:33] Speaker 00: to an error in the designation that you had that might not have been a copying error like a clerical one or a addition or multiplication error like a mathematical one. [00:25:49] Speaker 00: Is there something in this letter that indicates as a substantive matter? [00:25:55] Speaker 00: We looked at [00:25:57] Speaker 00: our record of your designation, it wasn't the qualifying one, and we don't really think that designation was wrong. [00:26:06] Speaker 00: Is there something that says that as opposed to somebody miscopying, you don't see a copying error or an arithmetic error? [00:26:16] Speaker 04: So, Your Honor, the language about sort of the clerical or mathematical error comes from CMS's regulations. [00:26:24] Speaker 04: And that was sort of the scope of errors that they felt they could correct in light of the bar because the bar covered both administrative errors. [00:26:31] Speaker 00: I understand that. [00:26:33] Speaker 00: We've been talking quite a lot. [00:26:34] Speaker 00: In fact, virtually the entirety, at least, of your argument about what kind of case this is. [00:26:41] Speaker 00: The case is much more sympathetic to you if there actually was a CMS determination on the marriage that the designation that was recorded was probably not wrong. [00:26:53] Speaker 00: And then there'd be a dispute, and then you'd say, well, that's exactly what this preclusion bar is supposed to prohibit. [00:27:01] Speaker 00: But I'm not sure we have anything like that. [00:27:03] Speaker 00: I'm not sure we have a case other than one in which it is undisputed that the designation [00:27:11] Speaker 00: was substantively erroneous. [00:27:15] Speaker 04: Your Honor, I don't know the extent to which there is that sort of substantive dispute in large part because that question wasn't litigated. [00:27:24] Speaker 00: Tell me if I can find that substantive dispute in this 2014 CMS letter and appendix pages 42 and 43. [00:27:36] Speaker 00: It's almost unreadable. [00:27:40] Speaker 04: I mean, I would note that the letter does say that the CMS reports spending a great deal of time researching all of the information that Dr. Fides has shared. [00:27:47] Speaker 00: But I can't tell if it was looking for anything other than copying and arithmetic errors as opposed to looking at the work he actually did in deciding whether he belonged, in fact, properly belonged in a qualifying designation. [00:28:02] Speaker 04: I think the reason we don't have that in the record here is because that question wasn't litigated. [00:28:07] Speaker 04: And the reason that question wasn't litigated is because Congress prohibited that question from being litigated. [00:28:12] Speaker 04: And ultimately, that prohibition has not been altered by Maine community. [00:28:18] Speaker 00: So your defense here really does depend on saying that this preclusion bar precludes even a case [00:28:31] Speaker 00: of undisputed substantive error by CMS? [00:28:38] Speaker 04: I think in this case, that would have been true if this was a direct appeal. [00:28:42] Speaker 04: I think because this is an appeal of Rule 60B denial, the problem is actually even a step earlier, which is whether or not the true Maine community did not change that. [00:28:51] Speaker 04: And Dr. Feist did not pursue that question on direct appeal. [00:28:55] Speaker 04: And therefore, the denial of the Rule 60B relief seal was not an abusive discretion and should be affirmed. [00:29:01] Speaker 04: and I see I'm out of time. [00:29:02] Speaker 04: So unless there are any other questions. [00:29:04] Speaker 00: Thank you. [00:29:05] Speaker 00: Anything else now? [00:29:06] Speaker 00: Okay, Ms. [00:29:07] Speaker 00: Key, you have how much time on rebuttal? [00:29:12] Speaker 00: Make a few minutes. [00:29:13] Speaker 03: Thank you, Your Honor. [00:29:18] Speaker 03: So I think the [00:29:19] Speaker 03: But the questioning really has the pertinent issue on appeal, at least with respect to the scope of the judicial bar right on the head. [00:29:29] Speaker 03: How can it be that in light of mandatory shall pay language, an eligible [00:29:37] Speaker 03: practitioner who meets all of the requirements of the statute. [00:29:41] Speaker 03: He's been providing primary care services since 2002. [00:29:45] Speaker 03: And it's clear that Medicare knows that fact because it lists his designation as primary care on his Medicare claims themselves. [00:29:55] Speaker 03: He cannot seek review of the erroneous determination of the government that he is not in fact eligible. [00:30:03] Speaker 03: We think that the scope of the statutory bar is clear. [00:30:06] Speaker 03: It is limited to claims concerning the identification of primary care practitioners. [00:30:13] Speaker 03: DML itself has taken the position that it's allowed to review claims relating to identification even when they involve clerical errors or mathematical errors, but there is some sort of claim that can be looked at. [00:30:29] Speaker 03: We think that it's clear that where there is statutory shall pay language, there is a narrow inherent exception for claims like Dr. Feist's, who when it is undisputed that they meet the requirements of the statute, that they be allowed a narrow avenue into the court to compare. [00:30:50] Speaker 00: And just try to say again how you think Maine community [00:30:56] Speaker 00: helps you get to that conclusion in a way that really wasn't so available before. [00:31:07] Speaker 03: exactly what is meant and the effect of that when Congress uses child pay language. [00:31:14] Speaker 03: It clarifies that an external circumstance there in that case it was Congress's decision not to earmark funds for the program. [00:31:22] Speaker 03: Here the external circumstance is slightly more related but it's the judicial bar. [00:31:27] Speaker 03: How that cannot affect [00:31:29] Speaker 03: the mandatory shall pay language. [00:31:31] Speaker 03: The rule is that the government shall pay, and it's the exception that certain claims are barred from judicial review. [00:31:40] Speaker 03: I see that I run out of time, so unless you have any more questions, thank you. [00:31:44] Speaker 00: No, thank you. [00:31:45] Speaker 00: We'll have to end there. [00:31:46] Speaker 00: Thank you to both counsel. [00:31:48] Speaker 00: The case is submitted.