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United States District Court, District of Columbia
June 11, 2015
LEE MEMORIAL HOSPITAL, et al., Plaintiffs,v.SYLVIA M. BURWELL, Secretary, U.S. Department of Health and Human Services, Defendant.
ROSEMARY M. COLLYER, District Judge.
Plaintiffs, a group of non-profit organizations that own and operate acute care hospitals participating in the Medicare program, [1] contend that the Department of Health and Human Services has underpaid them for Medicare services provided during the fiscal years ending in 2008-2010. The dispute requires a huge leap into Medicare and its regulations, but, in essence, Plaintiffs allege that the Secretary knew that her basic approach and formulas produced the wrong results but continued to underpay them for years, notwithstanding.
At issue here is Plaintiffs' Motion to Compel: the Secretary has produced an Administrative Record, which Plaintiffs complain is incomplete. The Secretary of Health and Human Services repeatedly insists the record is more than sufficient for judicial review. For the reasons set forth below, Plaintiffs' motion will be granted in part and denied in part.
It is not necessary to take a reader through the underlying dispute in this case. There are, however, a few fundamental points. Under Medicare, certain hospitals may be reimbursed in part for their operating costs per patient. "Because different illnesses entail varying costs of treatment, the Secretary uses diagnosis-related groups (DRGs) to modif[y]' the average rate.'" Dist. Hosp. Partners, L.P. v. Burwell, No. 14-5061, 2015 WL 2365718, at *1 (D.C. Cir. May 19, 2015) (quoting Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 205-06 (D.C. Cir. 2011)). Hospitals are paid at fixed rates determined by the Secretary based on DRG prospective payment rates, which are intended to reflect the estimated average cost of treating a patient whose condition falls within that DRG. See 42 U.S.C. § 1395ww(d). When patient costs become extraordinarily high, hospitals may request an "outlier payment" in any case "where charges, adjusted to cost, exceed... the sum of the applicable DRG prospective payment rate... plus a fixed dollar amount determined by the Secretary." 42 U.S.C. § 1395ww(d)(5)(A)(ii).
"[T]hree particular numbers are important" in calculating outlier payments: "(1) the cost-to-charge ratio, (2) the fixed loss threshold, and (3) the outlier threshold." Dist. Hosp. Partners, 2015 WL 2365718, at *2. First, a hospital's cost-to-charge ratio "represents a hospital's average markup" and "is calculated from data in its most recent cost report." Id. (internal quotations and citations omitted); see also Def. Mem. in Opp. to Pl. Mot. to Compel (Def. Opp.) [Dkt. 53] at 4 ("The Secretary estimates a hospital's costs for a case by multiplying the hospital's charges by a cost-to-charge ratio, which is a fraction that represents the estimated amount that the hospital incurs in costs for every dollar that the hospital bills in charges."). A hospital's cost-to-charge ratio is generally calculated specifically for that hospital based on data contained in its prior cost reports. Def. Opp. at 4 (citing 42 C.F.R. § 412.84(i)).
Second, as noted above, a hospital can request an outlier payment if its charges exceed the sum of the DRG payment rate and a "fixed dollar amount." 42 U.S.C. § 1395ww(d)(5)(A)(ii). The "fixed dollar amount" is otherwise known as the "fixed loss threshold." The fixed loss threshold "acts like an insurance deductible because the hospital is responsible for that portion of the treatment's excessive cost' above the applicable DRG rate." Dist. Hosp. Partners, 2015 WL 2365718, at *2 (quoting Boca Raton Cmty. Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1229 (11th Cir. 2009)); see also Def. Opp. at 5 ("The fixed loss threshold essentially represents the loss that a hospital must absorb before it is eligible to receive an outlier payment."). The fixed loss threshold is set annually in advance of each fiscal year based on projections about aggregate payments to hospitals and a consideration of past charges. Def. Opp. at 5. The Secretary determines the figure in part by looking at historical data on charges actually submitted by hospitals and then applies an inflation adjustment factor to the data to produce an approximation of what hospital charges might look like in the future. Id. The Department of Health and Human Services (HHS) attempts to set the fixed loss threshold at a level such that total outlier payments for the upcoming year will represent 5.1% of projected total DRG payments. Pl. Mem. in Support of Mot. to Compel Complete Admin. Record (Pl. Mem.) [Dkt. 51] at 2 (citing 72 Fed. Reg. 47, 130 at 47, 419).
The third relevant number-the outlier threshold-is the sum of the fixed loss threshold and the DRG rate. Dist. Hosp. Partners, 2015 WL 2365718, at *2. "Any cost-adjusted charges imposed above the outlier threshold are eligible for reimbursement under the outlier payment provision." Id. (citing 42 U.S.C. § 1395ww(d)(5)(A)(ii)).[2]
These figures are set by HHS each fiscal year. In this case, Plaintiffs challenge HHS administrative regulations governing outlier payments and the fixed loss thresholds, asserting that those regulations led to an incorrect determination of their outlier payment amounts for 2008-2011. Specifically, they allege that HHS improperly applied two sets of regulations: (1) "Payment Regulations, " which establish a model for determining whether individual hospital cases qualify for outlier payments; and (2) "Threshold Regulations, " which set the annual fixed loss threshold. Pl. Mem. at 5. They also take issue with HHS amendments to the rules governing outlier payments made in 2003, maintaining that those amendments form the basis for how the fixed loss thresholds were set in 2008-2011. Id.
In their Motion to Compel, Plaintiffs argue that HHS failed to produce information used by the agency in determining the fixed loss threshold. They seek the following materials: (1) the draft Interim Final Rule from the 2003 amendments to the payment regulations; (2) the formulas used to calculate the fixed loss thresholds; (3) data used to calculate a cost-to-charge adjustment factor and an inflation factor, which were then used to calculate the fixed loss thresholds; (4) the formulas and data that HHS used to calculate estimated outlier payments, made during previous fiscal years, which HHS considered in determining the fixed loss thresholds for the relevant years; (5) the supporting data which HHS used to determine certain key assumptions for projected outlier payment calculations as set forth in HHS's Impact Files; (6) materials supporting HHS's regulatory impact analysis considered in each of the fixed loss threshold regulations; and (7) materials supporting HHS's statements in the fixed loss threshold regulations that it would not consider the mandatory reconciliation of outlier payments in setting the fixed loss thresholds.[3] Pl. Mem. at 3. The parties conferred extensively but were unable to resolve this dispute. HHS contends that the materials sought were properly excluded from the Administrative Record and avers that "HHS has provided certified administrative records of the rulemaking proceedings for regulations concerning the establishment of fixed loss thresholds for 2008 through 2011 which contain: the agency's proposed rule and final rule; the comments received; and the data that the agency considered in developing the outlier payment amount and rule and the fixed-loss threshold." Def. Opp. at 8 (citing Ex. A, Decl. of Ing-Jye Cheng, Director, Division of Acute Care, Hospital and Ambulatory Care Group, Centers for Medicare and Medicaid Services (CMS), HHS [Dkt. 53-1] (Cheng Decl.) ¶¶ 2-3).
A. Jurisdiction and Venue
This Court has jurisdiction to review Plaintiffs' challenge to the agency regulations under the Medicare Act, which incorporates the Administrative Procedure Act (APA). See 42 U.S.C. § 1395oo(f)(1); 5 U.S.C. § 706. Venue is proper under 42 U.S.C. § 1395oo(f) and 28 U.S.C. § 1391(c).
B. Standard of Review for Supplementation of Administrative Record
The Administrative Procedure Act requires reviewing courts to "set aside agency action, findings, and conclusions found to be... arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706. In reviewing agency rulemakings, the APA requires courts to "review the whole record or those parts of it cited by a party." Id. "If a court is to review an agency's action fairly, it should have before it neither more nor less information than did the agency when it made its decision." Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984); see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (APA requires courts to review "the full administrative record that was before the Secretary at the time he made his decision").
"The whole' administrative record... consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Stainback v. Sec'y of Navy, 520 F.Supp.2d 181, 185 (D.D.C. 2007) (internal quotation omitted); see also Banner Health v. Sebelius, 945 F.Supp.2d 1, 15 (D.D.C. 2013) ("Courts in this Circuit have interpreted the whole record to include all documents and materials that the agency directly or indirectly considered... [and nothing] more nor less.") (internal quotations omitted). The record must include "all materials that might have influenced the agency's decision, [] not merely those on which the agency relied in its final decision." Stainback, 520 F.Supp.2d at 186 (internal quotation omitted). An "agency may not skew the record by excluding unfavorable information but must produce the full record that was before the agency at the time the decision was made." Blue Ocean Inst. v. Gutierrez, 503 F.Supp.2d 366, 369 (D.D.C. 2007). "[A]n agency may exclude arguably relevant information that is not contained in the agency's files but that may be available from third parties" and "generally may exclude material that reflects internal deliberations." Fund for Animals v. Williams, 391 F.Supp.2d 191, 197 (D.D.C. 2005).
"Although an agency may not unilaterally determine what constitutes the administrative record, the agency enjoys a presumption that it properly designated the administrative record absent clear evidence to the contrary." Id.; Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 5 (D.D.C. 2006) ("[A]n agency is entitled to a strong presumption of regularity that it properly designated the administrative record."). Accordingly, "[s]upplementation of the administrative record is the exception, not the rule." Pac. Shores, 448 F.Supp.2d at 5.
The D.C. Circuit has held that supplementation of the record is only permitted in one of three "unusual circumstances": "(1) the agency deliberately or negligently excluded documents that may have been adverse to its decision; (2) the district court needed to supplement the record with background information in order to determine whether the agency considered all of the relevant factors; or (3) the agency failed to explain administrative action so as to frustrate judicial review.'" Dist. Hosp. Partners, 2015 WL 2365718, at *7 (quoting American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)); see also City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010). "To rebut the presumption of regularity, the party seeking supplementation must introduce concrete evidence' to prove' that the specific documents allegedly missing from the record were before the actual decisionmakers' involved in the challenged agency action." Banner Health, 945 F.Supp. at 16-17 (quoting Pac. Shores, 448 F.Supp.2d at 6). In making this showing, the party seeking to supplement the record "must identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are likely' to exist as a result of other documents that are included in the administrative record." Id. at 17. A district court's refusal to supplement the administrative record is reviewed for abuse of discretion. Kempthorne, 530 F.3d at 1002.
Plaintiffs seek to compel several types of information from HHS, arguing that the materials should be supplemented to the Administrative Record because they meet one or more of the Kempthorne criteria.
A. 2003 Draft Interim Rule
In 2003, HHS initiated a rulemaking for Medicare payment regulations in order to more accurately compensate hospitals for their costs exceeding the fixed loss threshold. In February 2003, then-HHS Secretary Tommy H. Thompson executed a draft Interim Rule and sent it to the Office of Management and Budget (OMB) for its review. The Interim Rule recognized that a small group of hospitals had gamed the system by rapidly inflating charges, making it appear that they had incurred greater costs, so that they would obtain greater outlier payments. As a result, HHS set falsely high fixed loss thresholds, thereby causing insufficient payments to be made to other hospitals that had not inflated their charges but that still provided care that was more expensive than the set Medicare rate.[4] According to Plaintiffs, the Interim Rule concluded that HHS should immediately lower the 2003 fixed loss threshold. However, the Interim Rule was never implemented and the Rule that was ultimately proposed did not lower the threshold or include any of the analysis or data that had underscored the Interim Rule.
HHS has failed repeatedly to include the Interim Rule in the Administrative Record on challenges to outlier payments. See Banner Health, 945 F.Supp.2d at 24-26. Just as in Banner Health, Plaintiffs here correctly argue that "this document goes to the heart of establishing the Secretary's promulgation of and continued application of invalid Fixed Loss Threshold Regulations as arbitrary and capricious, because it demonstrates that the agency knew that lowering the threshold would correct the problems engendered by its earlier regulations and believed it was obligated to do so immediately, but did not." Id. at 26. Moreover, Plaintiffs provide evidence that the Interim Rule was considered by the agency in the rulemaking process, as it was signed by Secretary Thompson and both the Interim Rule and the proposed rule bear the same Regulatory Identification Number and are mostly identical in content. See Pl. Mem. at 23-24. Accordingly, the Hospitals have met their burden of showing that agency decisionmakers considered the material at issue and that the agency failed to include in the record documents that may have been adverse to its decision. See City of Dania Beach, 628 F.3d at 590.
HHS argues that inter-agency documents should be granted the same "predecisional" and deliberative status as internal agency documents. Def. Opp. at 11-16. While it is settled law that "materials reflecting an agency's internal deliberations should not be part of an administrative record unless there is a strong showing of bad faith or improper behavior, " see id. at 13 (citing San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm'n, 789 F.2d 26, 44 (D.C. Cir. 1986)), that argument carries no weight with respect to proposed drafts of agency rules that are submitted to OMB and then publicly posted on OMB's website. See Executive Order (E.O.) 12, 866, 58 Fed. Reg. 51, 735 (Sept. 30, 1993) (requiring that after a regulation becomes final, OMB make available to the public all documents exchanged between it and agency during the inter-agency review). The deliberative process privilege is intended to "ensure open communication between subordinates and superiors, prevent premature disclosure of policies before final adoption, and to avoid public confusion if grounds for policies that were not part of the final adopted agency policy happened to be exposed to the public." Ctr. for Medicare Advocacy, Inc. v. Dep't of Health and Human Servs., 577 F.Supp.2d 221, 234 (D.D.C. 2008) (citations omitted). A document is properly withheld if "disclosure of [the] materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Formaldehyde Inst. v. Dep't of Health and Human Servs., 889 F.2d 1118, 1122 (D.C. Cir. 1989) (internal quotation omitted). "[A] document protected pursuant to the deliberative process privilege loses protection if the agency used the document in its dealing with the public." Banner Health, 945 F.Supp.2d at 22 (internal quotation omitted).
Here, neither HHS nor Secretary Thompson would have anticipated that the Department's Interim Final Rule would remain confidential. Indeed, protecting the document as privileged would not further the purpose behind the rule because the draft would be seen by the public. This Court concurs with Banner Health that there is no way that "inclusion of the Interim Final Rule from the administrative record would in any way expose' HHS's decisionmaking process in a manner that would discourage candid discussion within the agency or otherwise contravene the purpose of the deliberative process privilege." Health v. Sebelius, Civil Case No. 10-1638 (CKK), 2013 U.S. Dist. LEXIS 147713 (D.D.C. July 30, 2013); see also Dist. Hosp. Partners, 2015 WL 2365718, at *7 n.3 (affirming district court's decision to supplement record with the OMB draft outlier correction rule). Accordingly, the draft Interim Final Rule must be produced as part of the Administrative Record.
B. Impact File for 2003 Rulemaking
Plaintiffs also argue that HHS improperly excluded the Impact File for 2003 Rulemaking. Pl. Reply at 7. Impact Files are Microsoft Excel spreadsheets that contain "data used to estimate payments under Medicare's hospital inpatient prospective payment systems for operating and capital-related costs, ' including the outlier fixed loss thresholds." Id. at 16 (quoting 72 Fed. Reg. 24, 680 at 24, 828 (AR at 150)). HHS has included in the record the Impact Files for FY 2008-2011 and acknowledges that they, along with other data, "are the bases for HHS's determination of the fixed loss thresholds." Def. Mem. at 16 (citing Cheng Decl. ¶¶ 2-3, 18) ("These are the materials that the Secretary has determined properly comprise the administrative record for each of the fixed loss threshold rulemakings at issue, and they are sufficient for meaningful judicial review."). Indeed, Impact Files are a fundamental part of the HHS process as they contain the data used to estimate outlier payments and fixed loss thresholds. Cheng Decl. ¶¶ 2, 11. Accordingly, now that HHS has also now supplemented the record with the 2003 rulemaking, see infra n.3, so too should it provide the 2003 Impact File as Plaintiffs have made a non-speculative showing that the Secretary considered such information. Further, the Court finds that the material is necessary "to determine whether the agency considered all the relevant factors" in taking the challenged actions, see City of Dania Beach, 628 F.3d at 590, based on Plaintiffs' contention that the analysis therein "served both as justification for the wholesale revision to the Payment Regulations and for HHS's decision not to lower the turbocharged, hyper-inflated fixed loss threshold." Pl. Reply at 12 ("For example, HHS estimated that implementing the 2003 Rulemaking would reduce outlier payments for the remainder [2 months] of FY 2003 by $150 million.'" (quoting 68 Fed. Reg. 34, 494, 34, 514 (June 9, 2003) (AR 3217))). See also Banner Health, 945 F.Supp.2d at 32-33 (ordering supplementation of record with Impact File relating to 2003 amendments), aff'd on reconsideration, 2013 U.S. Dist. LEXIS 147713 at *28-29.
C. Raw Data, Formulas, Other Materials Underlying Fixed Loss Thresholds and Outlier Payments
1. Formulas
HHS describes its process for determining fixed loss thresholds as follows:
HHS (i) simulate[s] payments to hospitals at different possible fixed loss threshold amounts by applying the particular fiscal year's rates and policies to actual MedPAR files from two years prior, then inflating the charges on the MedPAR claims by two years, and estimating costs based on cost-to-charge ratios, and then (ii) select[s] the fixed loss threshold at which projected total outlier payments would equal 5.1 percent of total DRG payments.
Def. Opp. at 19. MedPAR files are "data files, which contain records, by FY, relating to claims paid on each Medicare beneficiary inpatient hospital encounter; they establish the universe of hospital inpatient claims which HHS uses to model claims for the upcoming FY." Pl. Mem. at 8-9.
Plaintiffs allege that HHS failed to file the relevant formulas that it "necessarily" relied on in setting the fixed loss thresholds and outlier payments. Pl. Mem. at 26-27. They argue that HHS "superficially" described its process, id. at 26, and that without the formulas "neither the hospitals nor the Court can test... whether HHS considered all relevant factors." Pl. Reply at 14.
HHS insists that the information provided in the Administrative Record is sufficient for judicial review of its annual Fixed Loss Thresholds without supplementation of the record. It relies on the "presumption of agency regularity and the general rule against supplementation, " see Banner Health, 945 F.Supp.2d at 29-30, and other decisions in this Court refusing to order the production of underlying raw data and formulas. Moreover, HHS asserts, Plaintiffs' motion should be denied in this respect because they have failed to identify the specific documents they want added to the Administrative Record.
While affording HHS the presumption of regularity, it is also true that "[o]f course the Hospitals cannot identify, by file name, the specific documents containing the formulas, because only HHS knows those file names." Pl. Reply at 13. However, Plaintiffs here have met their burden of showing an "unusual circumstance" justifying supplementation of the record. Kempthorne, 530 F.3d at 1002. Plaintiffs explain:
[Data from HHS's published rulemakings] shows a consistent trend of HHS assuming positive (upward) inflation in hospital costs during all the FYs at issue, but a consistent downward trend (in all FYs but one) of deflation in the fixed loss threshold. The fact that the FLT shrunk each year means that some unknown factor was applied during HHS's described step two ("select[ing] the fixed loss threshold at which projected total outlier payments would equal 5.1 percent of total DRG payments"), to counter the effect of the charge inflation factor. Without any explanation as to how HHS projected increased estimated charges and costs but nevertheless lowered the fixed loss threshold, HHS's path in setting the threshold remains hidden.
Pl. Reply at 14 (quoting Def. Opp. at 19). Moreover, Plaintiffs point to "concrete proof, " noting that in setting the formulas and running "simulations, " "HHS used computer algorithms embedded in one or more software applications." Pl. Reply at 13 (citing 72 Fed. Reg. 47, 417 (AR 1145) (FY 2008)).
Because Plaintiffs contest the annual fixed loss thresholds as arbitrary and capricious, the Court agrees that the Administrative Record must include formulas used to derive those numbers, if such formulas exist. As indicated above, the basic contention here is that HHS knew or had reason to know that its annual fixed loss threshold calculations were inaccurate, thereby depriving Plaintiffs (and other hospitals) of legitimate outlier payments, but HHS repeatedly failed to make necessary adjustments. Without these calculations, this dispute cannot be decided. Plaintiffs have provided a reasonably specific showing that the Agency relied on such formulas in making decisions about the fixed loss thresholds and outlier payments which are directly challenged in this case and have thus met their burden to support supplementation of the record because review of the formulas is necessary for the Court "to determine whether the agency considered all the relevant factors" in taking the challenged actions. City of Dania Beach, 628 F.3d at 590.
2. Data Trims
In setting fixed loss thresholds, HHS engages in a process known as "trimming, " which "refers to the practice of disregarding data records that are invalid or otherwise may unduly distort the analysis.'" Def. Opp. at 19 (quoting Cheng Decl. ¶ 19). HHS argues that Plaintiffs are not entitled to supplementation of such materials because "[d]ata trims do not modify data files or produce new data, and instead exclude certain data points from analysis, e.g., Medicare Advantage managed care enrollee data and critical access hospital (CAH') data, without expunging them from the data set." Id. at 19-20.
Plaintiffs recognize that the data trims do not modify or produce new data. They argue that HHS "misapprehended" their supplementation request because they do not seek "new data, " but instead seek "the systematic instructions which HHS applied to exclude certain data points from analysis.'" Pl. Reply at 13 (quoting Def. Opp. at 19). While HHS provided two examples of certain excluded data-"Medicare Advantage managed care enrollee data and critical access hospital data, " Def. Opp. at 19-Plaintiffs request "a complete list of such exclusionary principles" that HHS used in setting fixed loss thresholds. Pl. Reply at 13. Plaintiffs also point out that HHS, in responding to a commenter who discovered a discrepancy when attempting to simulate outlier payments for FY 2008, stated that the discrepancy could be because the commenter used different data trims than those used by HHS. Pl. Mem. at 27.
Plaintiffs have thus pointed to "concrete evidence" that HHS relied upon various "exclusionary principles" in determining fixed loss thresholds. Id. Understanding how HHS applied its methodology is necessary for the Court to weigh the merits of Plaintiffs' case and to understand whether HHS considered all the relevant factors in making its decisions.[5] Accordingly, HHS will be required to supplement the record with all instructions applied by HHS to exclude data from its analysis in conducting data trims.
3. Formulas and Data used to Calculate Estimated Outlier Payments
Plaintiffs further argue that HHS failed to include formulas and data used to calculate the estimated outlier payments made during previous fiscal years. Pl. Mem. at 28. Specifically, Plaintiffs quote an HHS statement explaining that, in estimating FY 2006 outlier payments, the Agency originally relied on "simulations using the FY 2005 MedPAR file, " that is, the Agency applied FY 2006 rates and policies to available FY 2005 bills. Id. (quoting 72 Fed. Reg. at 47, 420 (AR at 1148)). However, HHS subsequently updated its estimate using FY 2006 bills. Id. Plaintiffs contend that "[d]espite the fact that HHS expressly relied on data and formulas (simulations') to estimate past payments, the agency has refused to provide any of these data and formulas with the administrative records." Id. Plaintiffs also maintain that HHS relies on estimated prior overpayments when calculating the annual fixed loss threshold. Id. at 29.
HHS argues that its notices of final rulemaking adequately explain that in calculating outlier payments, it applied the past fiscal year rates and policies to the bill information in that year's MedPAR files. Def. Opp. at 21. With respect to the formulas used to calculate estimated outlier payments, the Court cannot adequately determine if HHS applied the relevant factors in determining past outlier payments without knowing how it came up with those calculations. Plaintiffs point to the fact that HHS relied on specific documents to make such estimates. Pl. Reply at 16 ("HHS stated that its estimates were based on simulations' (i.e., formulas) using the FYs 2005-2006 MedPAR files and FYs 2006-07 rates and policies.' In the same rulemaking, HHS also described using the [Provider Specific File] for this final rule' in combination with the FY 2006 MedPAR file to estimate FY 2007 outlier payments.") (internal citations omitted). This concrete data demonstrates HHS's consideration of such formulas and such information is needed to determine whether HHS considered relevant factors in taking the challenged actions. Therefore, just as the formulas underlying the calculation of fixed loss thresholds, HHS must supplement the record with formulas or documentation of HHS's calculations of estimated outlier payments in previous fiscal years.
However, as for the data underlying those calculations, "requiring an agency to produce source data upon source data so that its analysis can be replicated in minute detail would appear, in most instances, to exceed the bounds of arbitrary and capricious review." Banner Health, 945 F.Supp.2d at 28. Indeed "[P]laintiffs' bare desire to replicate each calculation contained within the Secretary's analysis - without more - will not suffice to justify supplementation, as [t]here is no general requirement that the [Secretary] include in the record the data underlying each factor considered in its decision." Dist. Hosp. Partners, L.P. v. Sebelius, 971 F.Supp.2d 15, 24 (D.D.C. 2013) (internal quotation omitted). Plaintiffs here have not shown that raw data underlying the calculations and formulas are necessary for judicial review. Thus, the request for data used in calculated estimated outlier payments will be denied.
D. Data Used to Calculate Annual Cost-to-Charge Adjustment Factors
Plaintiffs also seek data used to calculate a cost-to-charge adjustment factor (used to determine the fixed loss threshold) that was implemented in FY 2007 to account for a consistent decline in cost-to-charge ratios that happened after each projection of the threshold and payment during upcoming fiscal years. Pl. Mem. at 30. Plaintiffs contend that the adjustment factor is small as compared to the actual rate of decline in ratios and that they need the underlying data to understand HHS's methodology. Id. at 30-31. Plaintiffs quote HHS explaining how it calculated the FY 2008 cost-to-charge adjustment factor:
For FY 2008, we calculated the [cost-to-charge] adjustment [factor] by using the operating cost per discharge increase in combination with the final market basket increase determined by Global Insight, Inc., as well as the charge inflation factor described above to estimate the adjustment to the [cost-to-charge ratios]. We determined the operating [cost-to-charge] adjustment by taking the percentage increase in the operating costs per discharge from FY 2004 to FY 2005 (1.0564) from the cost report and dividing it by the final market basket increase from FY 2005 (1.043). We repeated this calculation for 2 prior years to determine the 3 year average of the rate of adjusted change in costs between the market basket rate of increase and the increase in cost per case from the cost report (FY 2002 to FY 2003 percentage increase of operating costs per discharge of 1.0715 divided by FY 2003 final market basket increase of 1.041, FY 2003 to FY 2004 percentage increase of operating costs per discharge of 1.0617 divided by FY 2004 final market basket increase of 1.04). For FY 2008, we averaged the differentials calculated for FY 2003, FY 2004, and FY 2005 which resulted in a mean ratio of 1.0210. We multiplied the 3 year average of 1.0210 by the 2006 market basket percentage increase of 1.0430, which resulted in an operating cost inflation factor of 6.49 percent or 1.0649. We then divided the operating cost inflation factor by the 1 year average change in charges (1.062) and applied an adjustment factor of 1.0027 to the operating CCRs from the PSF.
Pl. Mem. at 31 (quoting 72 Fed. Reg. at 47, 418 (AR at 1146)). Plaintiffs argue they are entitled to the data from contractor Global Insight, Inc., as well as several years of market basket and cost report data.
HHS argues that the quoted explanation above clearly delineates how it determines the cost-to-charge adjustment factor. The rulemaking records for the fiscal loss thresholds include the final market basket increase and the costs per discharge based on cost reports, which were used to adjust the cost-to-charge ratios. Def. Opp. at 23 (citing Cheng Decl. ¶ 20). What Plaintiffs seek, HHS asserts, is underlying source data that is unnecessary for judicial review. Further, HHS argues, there is no evidence that unspecified data were before HHS decisionmakers: the Federal Register indicates only that HHS considered the final market basket increase and cost reports in setting the fixed loss thresholds.
HHS is correct. While Plaintiffs argue that HHS considered Global Insight data, HHS's explanation clearly states that it only relied upon the "final market basket increase" and relevant cost reports; those have already been provided to Plaintiffs in the Administrative Record. Def. Opp. at 23. Ms. Cheng further confirms that "[f]or purposes of outlier policy, [HHS] does not review raw data used in setting market baskets" but instead "applies the final adjustment factors to adjust the CCRs"-"the raw data used in deriving the market basket inflation factor is not considered in setting the outlier threshold." Cheng Decl. ¶ 20. Thus, Plaintiffs fail to overcome the presumption of regularity afforded to HHS in this respect. Plaintiffs do not present evidence sufficient to show that such documents "were before the actual decisionmakers' involved in the challenged agency action." Banner Health, 945 F.Supp.2d at 17 (quoting Pac. Shores, 448 F.Supp.2d at 6). Moreover, courts generally do "not need to examine the raw data in order to determine whether or not the [Secretary's] decision was arbitrary and capricious or otherwise not in accordance with law." Dist. Hosp. Partners, 971 F.Supp.2d at 24 (internal quotation omitted). HHS cogently explained how it calculates cost-to-charge adjustment factors and raw underlying source data are not needed to determine whether the agency considered the relevant factors. See Kempthorne, 550 F.3d at 1002; see also Dist. Hosp. Partners, 2015 WL 2365718, at *7 (affirming district court's refusal to supplement record with source data used to approximate cost-to-charge ratios because Secretary explained how ratios were calculated, data were not "critical background information, " and there was no evidence that data were deliberately or negligently excluded from record). Therefore, the Court will deny Plaintiffs' request to supplement the Administrative Record with underlying data ssed to calculate cost-to-charge adjustment factors.
E. Data Used to Calculate Inflation Factors
Plaintiffs also seek to supplement the Administrative Record with all MedPAR data relied upon by HHS in calculating annual inflation factors used for setting the fixed loss thresholds. According to HHS, in calculating the proposed FY 2008 outlier threshold, it "simulated payments by applying FY 2008 rates and policies using cases from the FY 2006 MedPAR files" thereby "inflat[ing] the charges on the MedPAR claims by 2 years, from FY 2006 to FY 2008." Pl. Mem. at 32 (quoting 72 Fed. Reg. at 47, 417 (AR at 1145)). HHS described its process of inflating the charges in the final FY 2008 stating that "[u]sing the most recent data available, [HHS] calculated the 1 year average annualized rate of change in charges per case from the first quarter of FY 2006 in combination with the second quarter of FY 2006 (October 1, 2005 through March 31, 2006) to the first quarter of FY 2007 in combination with the second quarter of FY 2007 (October 1, 2006 through March 31, 2007)." Id. (quoting 72 Fed. Reg. at 47, 418 (AR at 1146)).
Plaintiffs contend that HHS has refused to produce MedPAR data that was used to calculate "the 1 year average annualized rate of change in charges per case, " as described above, and that HHS should be required to supplement the record with such data as it was used to calculate annual inflation factors. Id. HHS responds that it has included in rulemaking records for the fixed loss thresholds the MedPAR data for each of the fiscal years between FY 2006 and FY 2011, which is the data used by the agency. Pl. Opp. at 24 (citing Cheng Decl. ¶ 21). HHS further explains "the MedPAR data that [HHS] used for the charge inflation calculation is from an early update of MedPAR that is not publicly available, and that the MedPAR data that is used in the final rules (which is the MedPAR data that can be made available publicly for limited uses and is included in the rulemaking records produced to Plaintiffs) could be used to closely approximate the inflation factor that [HHS] calculated." Id. Plaintiffs counter that they are entitled to the data that was before the agency.
Again, this Court agrees with District Hospitals, 971 F.Supp.2d at 25, and Banner Health, 945 F.Supp.2d at 29, and concludes that Plaintiffs are not entitled to raw data underlying HHS's calculations, despite the fact that HHS may have used that data as part of its rulemaking process. Plaintiffs broadly claim that the "data established a key variable (the inflation factor) that was used twice in the setting the fixed loss thresholds, " Pl. Reply at 20, but they provide no further explanation as to why the raw data is necessary for this Court's review of the outlier threshold determination. See Dist. Hosp. Partners, 971 F.Supp.2d at 25. Because "there is no general requirement that the agency include in the record the data underlying each factor considered in its decision, " id. (internal quotation omitted), the Court will deny Plaintiffs' request to supplement the record with data used to calculate inflation factors.
F. Data Underlying Cost-to-Charge Ratios in Impact Files
While the Administrative Record contains the Impact Files for the fiscal years at issue here, it does not include the "underlying assumptions and associated data used to compute the conclusory data contained in the Impact Files." Pl. Mem. at 34. According to Plaintiffs, the cost-to-charge ratios in the Impact Files were drawn from data in the "Provider Specific Files, " which are available to the public on the Centers for Medicare and Medicaid Services (CMS) website, but there are material discrepancies between the cost-to-charge ratios set forth in the Impact Files and those in the Provider Specific Files. Id.
HHS argues that there is no evidence that the Provider Specific Files requested by Plaintiffs, or any other data from which the impact files were derived, were relied on by HHS decisionmakers. To the contrary, Ms. Cheng's Declaration states that the Provider Specific Files were used to derive cost-to-charge ratios contained in the impact files. Cheng Decl. ¶¶ 12-13. However, Plaintiffs fail to establish how such underlying source data is necessary to assist the Court in determining whether the Agency considered all the relevant factors. Plaintiffs contend that the material discrepancies between the cost-to-charge ratios in the Impact Files and the Provider Specific Files constitute "unusual circumstances" warranting supplementation of the record. The Court disagrees. Ms. Cheng explains that Provider Specific Files are updated quarterly and may also be subject to data trims. Cheng Decl. ¶¶ 10, 15, 19. As the Court in Banner Health explained on reconsideration, in denying Plaintiffs' request to supplement the record with source data underlying the Impact Files:
the Provider Specific File data on the CMS website is updated ( and may be retroactively corrected ) by fiscal intermediaries and therefore cannot be relied upon to mirror the data that was used to generate the Impact Files. Accordingly, because any alleged inconsistences between the Provider Specific File data on the CMS website and the Impact Files do not undermine the Secretary's account, as stated in the Federal Register, of how the Impact Files were created, the ostensibly "unusual circumstances" on which the Court relied are non-existent.
Health v. Sebelius, Civil Case No. 10-1638 (CKK) 2013 U.S. Dist. LEXIS 147713, at *35 (D.D.C. July 30, 2013) (emphasis added). Here too, the Court will deny Plaintiffs' motion to compel with respect to this data.
G. Regulatory Impact Analyses
Plaintiffs also request that the record be supplemented with the regulatory impact analyses for each of the rulemakings at issue here, as well as all underlying data. For every major rule, agencies must assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity), after which they must prepare a regulatory impact analysis (RIA) detailing their findings. Pl. Mem. at 38. Plaintiffs cite to a statement in the RIA section of the FY 2008 Threshold Regulation stating that FY 2007 outlier payments were lower than projected, which they argue shows that HHS directly considered the RIA in implementing outlier payment regulations. Id. at 39.
HHS explains that it already "included with each fixed loss threshold notice of final rule a robust RIA as an appendix to the notice" and argues that what Plaintiffs really seek is underlying source data that is "beyond the scope of what the Court needs for meaningful judicial review." Def. Opp. at 29-30. The Court agrees. There is no suggestion that data underlying each RIA would help the Court determine whether HHS acted arbitrarily and capriciously, and thus Plaintiffs' motion to compel with respect to such data will be denied.
H. Documents Relating to Reconciliation
When HHS implemented the 2003 amendment to the outlier payment regulations, it also required the reconciliation of outlier payments made to providers upon the settlement of cost reports. This process was intended to have the excess outlier payments of those hospitals that had engaged in "turbocharging" reconciled and recouped, with interest, by HHS. Pl. Mem. at 12. HHS ultimately stated that it would not be "making any adjustments [to its fixed loss threshold] for the possibility that hospitals' CCRs and outlier payments may be reconciled upon cost report settlement.'" Id. at 40 (quoting 72 Fed. Reg. at 24, 837 (AR at 159)). HHS explained that it believed that
due to the policy implemented in the outlier final rule (68 FR 34494, June 9, 2003), CCRs will no longer fluctuate significantly and, therefore, few hospitals will actually have these ratios reconciled upon cost report settlement. In addition, it is difficult to predict the specific hospitals that will have CCRs and outlier payments reconciled in any given year. We also noted that reconciliation occurs because hospitals' actual CCRs for the cost reporting period are different than the interim CCRs used to calculate outlier payments when a bill is processed. Our simulations assume that CCRs accurately measure hospital costs based on information available to us at the time we set the outlier threshold. For these reasons, we are not making any assumptions about the effects of reconciliation on the outlier threshold calculation.
Id. at 13 (quoting 72 Fed. Reg. at 47, 419 (AR at 1147)).
Plaintiffs maintain that HHS has failed to file any documents underlying its assertion that few hospitals had their CCR ratios reconciled after cost settlement. This position, Plaintiffs contend, is contradicted by a report from the HHS Office of Inspector General (OIG) identifying $664 million in outlier payments made in FYs 2004-2009 which were not reconciled in accordance with HHS regulations. Pl. Mem. at 41. Plaintiffs seek either documents adverse to HHS's original statement or documents showing why it refused to account for the impact of reconciliation when setting the fixed loss thresholds at issue here.
HHS argues that the above-quoted language explains why HHS did not factor the effects of cost-to-charge reconciliation into its calculation of the fixed loss thresholds:
as a result of the policy implemented through the outlier payment regulation [in 2003], (i) HHS expected that "cost-to-charge ratios [would] no longer fluctuate significantly, " (ii) consequently it expected that "few hospitals [would] actually have these ratios reconciled upon cost report settlement, " (iii) predicting the specific hospitals that would undergo reconciliation in any given year would be difficult, and (iv) the rationale for reconciliation (which is based on the time interval between interim cost-to-charge ratios and actual cost-to-charge ratios) did not apply to the fixed loss thresholds because HHS's simulations assumed accurate measures of hospital costs.
Def. Opp. at 31 (quoting 72 Fed. Reg. at 47, 419 (Admin. R. 1147)).
Plaintiffs have not met their burden of demonstrating why supplementation is warranted with respect to their vague request for missing documents regarding reconciliation- they have pointed to no specific documents and fail to "identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are likely' to exist as a result of other documents that are included in the administrative record." Banner Health, 945 F.Supp.2d at 17. HHS has explained that its expectation that "few hospitals" would have their CCR ratios reconciled upon cost report settlement is based on the implementation and effect of its amended policy for outlier payments. Def. Opp. at 31 (quoting 72 Fed. Reg. at 47, 419). Whether HHS's decision may be deemed unreasonable in light of the OIG report is a question to be addressed upon the Court's review of the merits.
For the reasons set forth above, Plaintiffs' Motion to Compel [Dkt. 51] will be granted in part and denied in part. No later than July 2, 2015, HHS will be required to supplement the record with the following materials: (1) the draft Interim Final Rule from the 2003 amendments to the payment regulations; (2) the Impact File for the 2003 Rulemaking; (3) the formulas used to calculate the fixed loss thresholds; (4) all instructions applied by HHS to exclude data from its analysis in conducting data trims; and (5) the formulas used to calculate estimated outlier payments, made during previous FYs, which HHS considered in determining the fixed loss thresholds for the relevant years.
A memorializing Order accompanies this Memorandum Opinion.
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Who is this project for? Women What are you most proud of? I am proud of the fine detail in the etching, and the very cleanly soldered bezel wire. What advice would you give someone starting this project? Transfer a pattern as fine as this many times, expect only 1 in 10 transfers to adhere successfully.
No completed Q&As yet.


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text: I never thought I would find pizza like this.....here in New Mexico!! This is as good if not better than any pizza That I can remember from Back in New York! My compliments to these guys...they have it going on over there!! Great service and awesome food at really great prices. Give this a try for sure!!!


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first let me thank you for your support .....I got through my edd as well as could be expected.
here is a link to the roses we planted, it is just a start....the center rose bush is called " Remember Me" it bloomed this morning.
we planted 2 climbing roses on each side of the trellis called " New Dawn"....they attract hummingbirds & butterflies.....cant wait fot the buds to start to open on them.
anyway, just wanted to share.....I'll post more as we continue to work on it
thanks ladies!


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Microwave Cauliflower and Peas in Cream Sauce
|1 Medium
|Frozen peas
|10 Ounce, Defrosted (1 packet)
|1⁄4 Cup (4 tbs), chopped
|1 Tablespoon
|All purpose flour
|1 Tablespoon
|Half and half
|1⁄4 Cup (4 tbs)
|1⁄4 Cup (4 tbs)
|1 Tablespoon, chopped
|Parsley flakes
|1⁄2 Teaspoon
|Instant chicken bouillon granules
|1⁄2 Teaspoon
|1⁄8 Teaspoon
|1 Dash
1) Into a 1 to 1 1/2-quart casserole, add in the cauliflower florets, peas and 1/4 cup water.
2) Microwave on HIGH for 6 to 8 minutes till the florets turn fork-tender. Stir halfway through the cooking time.
3) Let the florets rest covered for a few minutes.
4) Into a 2-cup measurer, add in the onion and butter. Microwave for 1 to 1 1/2 minutes on HIGH till the onions become tender.
5) Mix in the flour. Stir well before adding on the half and half, pimiento, parsley, bouillon granules, salt and pepper Microwave again for about 2 minutes till the mixture has thickened. Stir twice in between.
6) Drain the cauliflower and peas.
7) Pour the creamy sauce over the drained vegetables.
8) Serve the Cauliflower And Peas In Cream Sauce, garnished with freshly chopped parsley leaves.
Recipe Summary
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 701 Calories from Fat 188
% Daily Value*
Total Fat 21 g33%
Saturated Fat 12.4 g62%
Trans Fat 0 g
Cholesterol 54.6 mg18.2%
Sodium 1429.1 mg59.5%
Total Carbohydrates 104 g34.8%
Dietary Fiber 36.2 g144.6%
Sugars 37 g
Protein 36 g72.5%
Vitamin A 143.7% Vitamin C 774.4%
Calcium 36.6% Iron 64.5%
*Based on a 2000 Calorie diet


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Scariest Movies of All TimeRevan
The Contenders: Page 5XW
Wasn't scary, but nasty as hell. - The reason for my vote is simply because it's brilliant. Couldn't agree more with a murder.
This movie is scary. John Doe gives me nightmares. And who can forget the "What's in the box"!
What isn't scary about a dude trapped in a phonebooth by a sniper in the buildings who no one can see? The sniper makes him do whatever he wants, and the scariest thing is his voice. Imagine a bone-chilling, everyday American voice, but calm and evilly saying- "hello stu. " DAMN, this jerked me for ages. I certainly ain't been in any phone booths for a while, and I intend to keep it that way, even if the nearest one is next to my best friends house! - Mushroom99
Not at all what I was expecting from the first 20 minutes. This movie gets seriously twisted on a whole new level.
It's a very scary movie. It's not a monster movie, it's a movie about grief and how it effects people which makes it scarier...
Scariest movie I ever did see. Far, far, more terrifying than Insidious.
The director of The Exorcist said it was the scariest movie he has ever seen. Why the hell is it below movies like Star Wars, Iron Man 3, Kung Fu Panda, and 300? They don't even qualify for horror!
Very underrated film, with a excellent twist at the end.V3 Comments
Scarier than conjuring a creepy doll worst movie ever and don't watch it if you don't like horror movies because this one is the ultimate fright of your life
I watched its HORRIBLE its not even scary AT ALLV1 Comment
I've heard its scary although I've not seen it.
Such a great sequel. And it features Ken Kirzinger(Freddy vs Jason's Jason Voorhees) as "Pa" - aeromaxx777
Holy crap what did I just watch. I watched The Unborn before I watched this one.V1 Comment
Watch this movie it is very well done the ending may or may not surprise you, shows the capability the human mind.
Not a horror, but a great psycho story
If we're talking about the Thai one, it's one of the best horrors I've watched. I'm not easily scared by films, but this one's got what it takes. It's also created in a very clever way, I love how everything at the beginning gives us the clues about what is happening and why. - saaar
The original Thai Shutter scared the hell out of me when I watched it on my couch. I highly recommend it. The ghost make up alone is terrifying. I'm sure it's low on this list simply because not enough people have heard of it or they assume we are talking about the remake.
Last minute = the best part of this movie, unpredictable...
This is best horror movie ever
Best Asian horror movie
Stupid American remake - phenylamine
The effects on the were wolf are some of the best I've ever seen! They should play this in theaters around Halloween so that people can see how awesome the transformation is.
Hilarious dark humor, but scared the crap outta me. Best werewolf in any movie.
"This should be number 1 for the transformation sequence alone."
That werewolf howl scares the living hell outta meV3 Comments
My favorite movie. It's not a jumpy, boo type of horror but it is an amazing movie, & a must see. I class this movie as a thriller not a horror movie. Rob zombie really has become a great film maker.
Not that scary but dope story n twisted good movie people...
One of the Greatest movies of all time!
This movie is like so creepy! Esther is actually a 32 year old woman who has this rare dwarfism that makes her appear to be a 9 year old.
A creepy movie, I love how the girl has the mind of a 32 year old when she is actually only 8 or 9, and the things that she does to the family that she is adopted into as well :/
Scared me couldn't go to the backroom all by myself IF you love scary movie you should watch it if your not a fan than don't prefered 14 and older
This movie is super scaryV5 Comments
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List StatsUpdated 6 Dec 2016
476 listings
9 years, 339 days old
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Santa's dropped some early presents off at the BSM so kids can have some shoe-themed holiday family fun at Toronto's favourite shoe box! Kids can decorate a cookie, make a special craft and play I Spy in the galleries. #BSMfamilyfun
Included in museum admission | Drop in activities until 4 pm | Perfect for children 3 – 12 years.


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Facebook x Zevran
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It's link to Zevrans fans facebook profile. Join them and add pfotos, quotes and whatever :)


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Hotel Leopoldo Rosignano Marittimo: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Castiglioncello, Italy.
Hotel Leopoldo Rosignano Marittimo is ideally positioned in a peaceful setting in Castiglioncello, just a short drive from Livorno and Rosignano Marittimo. It also features a 24-hour reception, a coffee bar and free bicycle rental.
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This 3-star hotel provides a safe, luggage storage and room service. A TV room, a garden and laundry facilities are also available.
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This Is What A Knockout Looks Like: Loud Mouth Punk Gets It Handed To Him
June 5, 2014 11:34am PST
In a completely devastating video, it appears as though one man's mouth was a bit bigger than his might. Using racial slurs and suggesting sexually provocative action, the man is quick to say how tough he is despite not being from around the area.
It isn't long before the man takes a swing at one of the men he'd entered into a verbal confrontation with hitting him square in the face. Too bad for him he didn't make it count as his victim fought back with vigorous anger and tackled him to the ground.
(See also: Skinny Bully Gets What's Coming To Him, Surprise Ending)
From there, a flurry of blows rained down on the man even after he had fallen unconscious. As his adrenaline continued to flow, the attacked man's revenge only stopped as others intervened.
You just have to appreciate a story with a happy ending. Let us know your thoughts on this in the comments below.
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- Obama-Voting Thug Attacks Teacher In Classroom, Then Gets EXACTLY What's Coming To Him
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- Thugs Try To Steal Woman's Car – Quickly Realize They Picked The Wrong Girl To Mess With…


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You Are Beautiful Cursive ArchYou Are Beautiful
Adorn your wall or desk with our You Are Beautiful Arch! This Arch is a spin-off of our classic Cursive Design. Add the installation kit to easily to attach it to the wall with foam tape, or attach plastic feet for it to stand on its own!
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Mon, 15/08/2005 - 08:00
Platinum Capital Management has appointed Bina Sanghvi as the company's new Director and Chief Operating Officer. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Sanghvi was formerly the Group Finance Director and Chief Operating Officer of the Attica Alternative Investments Group, a fund of hedge funds. Her prior experience included stints as Investment Operations Director of Gensec International (a Group Company of Sanlam), and as the Finance Director and Compliance Director at Quaestor Investment Management.
"We are delighted to have Bina on board," said Platinum Chairman Peter Sprecher. "She brings over 15 years of management experience in hedge fund and fund of fund operations, which will be invaluable to us as our business grows."
Commenting on her new position, Sanghvi said: "Platinum has an established brand name and a solid reputation for selecting high quality funds that deliver high quality results. This is attracting increasing attention, and I'm delighted to be joining the team as they manage this exciting phase of development."
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Via MLBTR, the Astros have claimed Lance Pendleton off waivers. The Yankees designated him for assignment earlier this week to make room on the 40-man roster for George Kontos. Remember, the Astros have the righty a look in Spring Training as a Rule 5 Draft pick, but they eventually send him back. Pendleton is from Houston and went to Rice (also in Houston), so he's right at home. Good luck, I'll miss you Pants Lendleton.
The RAB Radio Show: September 9, 2011
We're creeping up on playoff time, and the Yankees are in the driver's seat right now. They're up three on Boston in the loss column with 20 games (19 for Boston) to go. Mike and I spend the bulk of the show talking about how things can play out.
- Of the 20 games left, 11 are against the Rays and the Sox. Mike and I talk about how this alters the outlook.
- Pitching, pitching, pitching. Who's going for the Yanks, how they'll pare down the rotation, and how everything will line up.
- Plus: Might offense dictate postseason success this year?
- The AL playoff picture: Who's in, who's out, who's hot, who's fading. Also, why the Yankees opponent shouldn't scare the Yankees as much as the Yankees scare their opponent.
Podcast run time 55:33
Here's how you can listen to podcast:
- Download the RAB Radio Show by right clicking on that link and choosing Save As.
- Listen in your browser by left clicking the above link or using the embedded player below.
- Subscribe in iTunes. If you want to rate us that would be great. If you leave a nice review I'll buy you a beer at a meet-up.
Intro music: "Die Hard" courtesy of reader Alex Kresovich. Thanks to Tyler Wilkinson for the graphic.
RAB Live Chat
Series Preview: Los Angeles Angels of Anaheim
These September west coast trips are always the worst. It sucks having to stay up late for games, it sucks that the Yankees have to make two cross country flights so late in the season, and it really sucks having to stay up late for games. I think I said that already. The Yankees are in the Pacific time zone for the next six games, starting with three in SoCal against the Angels.
What Have The Angels Done Lately?
Life in the AL West means the Halos have played seven of their last ten games against the Mariners. In between the four-gamer and a three-gamer with Seattle was a three-game set with the Twins, and Angels went 6-4 during that ten game stretch. They have won four of their last five though, and remain 2.5 games back of the Rangers in the division. They're seven games back for the wildcard, so that's not really an option.
Angels On Offense
Despite having some pretty big names in the lineup, the Angels are a slightly below-average offense with a .313 wOBA. Bobby Abreu has essentially been reduced to platoon status of late, even though he's the team's top OBP (.356) threat. His power (.110 ISO) is gone, though. Torii Hunter (.330 wOBA) still plays everyday, and Vernon Wells (.282 wOBA) is out there most days as well. Mark Trumbo is the Angels' top power threat (26 homers and a .225 ISO), but that .295 OBP is atrocious. Howie Kendrick (.353 wOBA) has probably been their best hitter all year.
The rest of the lineup is subject to change by the day. Maicer Izturis (.322 wOBA) and Erick Aybar (.315 wOBA) have been tag teaming the leadoff spot, though the speedy Peter Bourjos (.339 wOBA) has seen time atop the order as well. Megaprospect Mike Trout (.328 wOBA in limited time) has been forcing his way into the lineup more and more each day, and if you think Brett Gardner is fast, wait until you see this kid run. Alberto Callaspo (.322 wOBA) and Russell Branyan (.328 wOBA) might show their faces as well. The catching trio of Jeff Mathis (.211 wOBA), Bobby Wilson (.239 wOBA), and Hank Conger (.277 wOBA) is just awful.
Overall, the Angels can do a little bit of everything but nothing outstandingly well. They're top ten in steals (116 with Aybar, Bourjos, Abreu and Trout being the biggest threats) and middle of the road in power (.146), but they're not very patient (just 7.4% walks) and aren't great at avoiding strike three (17.8%). Not a scary offense, but not a total pushover either.
Angels On The Mound
Friday, RHP Jered Weaver (vs. Bartolo Colon): The Yankees missed Weaver the last time these two clubs faced because the right-hander was serving a suspension for throwing at Carlos Guillen. He's having a great season (2.49 ERA and 3.02 FIP), but he's also got a 6.67 ERA over his last five starts, including three absolute disasters. The recent death of his grandfather surely has to be considered a factor. Weaver legitimately throws five pitches, including two high-80's fastballs (both two and four-seamers), a high-70's slider, a high-80's changeup, and low-70's curveball. He excels at limiting walks (2.22 BB/9) and gets plenty of strikeouts (7.68 K/9), but he is an extreme fly ball pitcher (just 32.6% ground balls). The Yankees have seen Weaver once before this year, when he held them to two runs in seven innings back in early-June.
Saturday, RHP Dan Haren (vs. CC Sabathia): As good as Jeff's kid brother has been this year, Haren has been even better. He doesn't walk anyone (1.21 BB/9) and gets a decent amount of grounders (42.1%), and his strikeout rate (7.20 K/9) is tolerable. The 2.93 FIP and 3.20 ERA are pretty good representations of his true talent level. Haren features four different fastballs: a four-seamer, a two-seamer, a cutter, and a split-finger. All of them reside in the mid-to-high-80's. A high-70's curve and a mid-80's change will also make an appearance. In his only start against the Yankees this year, Haren gave up four runs in six innings.
Sunday, RHP Ervin Santana (vs. Freddy Garcia): Another low walk (2.58 BB/9) starter, Santana lags behind Weaver and Haren in the strikeout (6.95 HR/9) department. A 3.18 ERA and 3.72 FIP certainly indicate quality though. Amazingly enough, Santana's basically a two-pitch pitcher, relying on his low-to-mid-90's heat and low-80's slider while throwing a mid-80's changeup about once every 33 pitches. You'd expect a big platoon split with that repertoire, but Santana doesn't have one this year. He does have one over the course of his career, however. The Yankees scored three runs in seven innings off him earlier this year.
Bullpen: Every team's bullpen is packed to the gills with call-ups this time of year, but Mike Scioscia's three primary bullpen guys are closer Jordan Walden (2.34 FIP), righty setup guy Fernando Rodney (4.55 FIP), and lefty setup guy Scott Downs (3.39 FIP). The versatile Hisanori Takahashi (4.06 FIP) and underrated Rich Thompson (3.28 FIP) are the next tier of relievers. A bunch of call-ups like Trevor Bell (3.48 FIP), Bobby Cassevah (3.61 FIP), and Horacio Ramirez (5.31 FIP) fill out the rest of the relief corps. Oh, and there's Joel Pineiro (4.64 FIP). Here's their long reliever after pitching his way out of the rotation.
Recommended Angels Reading: True Grich.
Mailbag: Darvish, Felix, Nova, Wang, Banuelos
Just four questions this week, but they're good ones. We'll look at where the money for Yu Darvish would be coming from, bad blood between the Yankees and Mariners, an Ivan Nova–Chien-Ming Wang comparison, and comps for Manny Banuelos. Remember to use the Submit A Tip box in the sidebar whenever you send a question in.
Mark asks: In regards to your recent post on Yu Darvish, can you explain how any team, let along the Yankees, can afford to pay a one-time posting fee of $40 million in these current economic times? I always thought the Steinbrenners ran the Yanks at break-even or at a slight loss. Unless MLB allows them to borrow from their YES broadcast subsidiary, I cannot imagine any owner, even the Steinbrenners, having that kind of cash lying around in a liquid investment, but I could be wrong. Or are posting fees paid out over the life of the contract? If not, I wonder why it doesn't make more sense financially for the Yankees to boost their payroll by say $10-15 million as a way of spreading the wealth around to more players versus just one.
The posting fee is a one-time payment that has to be made when the player signs his contract, so the Red Sox had to cut the Seibu Lions a $51.1M check for Daisuke Matsuzaka back in December of 2006. If the team and the player don't agree to a deal, like what happened with the A's and Hisashi Iwakuma this past offseason, then the team doesn't have to pay the posting fee.
I have no idea what the Yankees' finances look like, but I'm certain they have $40M+ lying around somewhere to make a payment like that. With a $200M payroll, they're making ~$17M payments for player salaries twice a month (just salaries, doesn't not include benefits and non-player personnel), so I'm sure the cash is somewhere in Yankee Global Enterprises. I hear the New Stadium comes equipped with a cash printing press in the basement*, actually. I know I kinda danced around the question but like I said, I haven't seen their books, but I have to think there's $40M on reserve somewhere, likely much more than that.
* This may or may not be true.
Elliot asks: While this is very speculative, do you think that Jack Zduriencik getting a two-year extension with the Mariners hurts the Yankees ability to trade for King Felix? Do you think there is still bad blood between Cashman and him because of the failed Cliff Lee Negotiations?
Felix Hernandez is not getting traded anytime soon, with or without Zduriencik's extension. He's only 25 and is under contract for four more years (three more after this season), he's absolutely going to be part of the next winning Mariners team. They're not some small-market outfit, they have tons of cash to throw around and a pretty strong young core with Felix, Michael Pineda, Justin Smoak, and Dustin Ackley. They could turn that team around in a year.
As for possible bad blood, yeah I do think there is some, but I don't think it's enough to get in the way of a potential Felix trade. He's a very special case. When it comes to bit pieces though, a spare reliever or a bench bat, then forget it, you can find that stuff anywhere. Zduriencik did what he felt was best for his team, but I have to believe he burned some bridges with that maneuver. I'm sure other teams noticed too.
Mark asks: Do you think Ivan Nova compares favorably to Chien-Ming Wang at this point of his career?
Yes, I do think Nova now is better than Wang then, but they are different pitchers. Yeah, both rely on ground balls, but Wang relied on them to the extreme, I mean he never struck anyone out (3.3 K/9 from 2005-2006) and was regularly over 60% grounders before his foot and shoulder gave out. Nova is more of a 50-55% ground ball guy with 5.5 K/9 or so, and I'd happily trade about ten percentage points of ground balls for one extra strikeout every four innings. Wang was also a year older than Nova is now when he debuted, and although it doesn't sound like much, but it's not insignificant.
I will say this, Wang generated more consistently weak contact than I can remember ever seeing out of one pitcher. The history of baseball says it should not have worked for a guy allowing that many balls to be put into play (especially for a team as defensively awful as the 2005-2007 Yankees, man were they terrible with the glove), but it did because he never seemed to let the ball out of the infield. Wang was a 3.60-4.00 ERA guy before getting hurt, and that's pretty much what I think Nova can be most years, with a little more at his peak.
Patrick asks: Who's a good comparison for Manny Banuelos? I'd love to say Johan Santana but that's unfair. What about Ricky Romero?
This question was sent in just a few minutes after Sweeny Murti said a scout dropped a Romero comp on Banuelos, and I'm guessing that's not an accident. Looking strictly at the whole low-to-mid-90's fastball/knockout changeup/third pitch curveball thing, then Romero's a very good comp. The Blue Jays ace uses a two-seamer as well, plus he's an inch or two taller than the Yankees young southpaw, but otherwise it fits. Of course when Romero was Banuelos' age, he was a sophomore at Cal State Fullerton, a year away from being drafted (sixth overall in 2005), and four years away from making his big league debut. The two have had very, very different development paths.
Johan's third pitch was always a slider, and plus his changeup was one of the best we'll ever see. That's an unfair comparison to slap on anyone, nevermind just Banuelos. Cole Hamels, Jaime Garcia, and John Danks are also fastball-change-curve, but all three of those guys have added cutters in recent years and are a few inches taller as well. They're better comps than Santana, but still not perfect. Jeff Francis, Jason Vargas, and Mark Buehrle have the same repertoire, but none of them throw as hard as Banuelos.
That Romero/Hamels/Garcia/Danks group is pretty damn good, and I'm sure the Yankees would be absolutely thrilled if Banuelos develops into any one of them. They're all well-above-average starters with strikeout stuff, and with the exception of Garcia (who's in just his second full year as a big leaguer), they've shown the ability to stay healthy and eat up innings year after year. Getting that kind of value from Banuelos would be a major player development win.
Same teams, different day, different cities, same result: Yanks lose to O's in extra innings
It's been a whirlwind 48 hours for the Yankees, who played deep into the night/morning on Tuesday, lost an extra innings day game in Wednesday, then traveled to Baltimore for a day game on Thursday. Although they started the season 9-1 against the Orioles, they finished the last eight games of the season series at 4-4. That's pretty frustrating, especially against a terrible team.
One Foot In The Batter's Box, The Other On The Plane
The game started out pretty well for the offense. The Yankees loaded the bases with no outs in the first, pushing three runs across thanks to an Eric Chavez infield single and a Derek Jeter two-run single back up the middle. Alfredo Simon was very wild, walking six guys in just four innings, and the Yankees scored another run in the third when Chavez singled in Mark Teixeira. With a 4-1 lead in the third inning, the offense got a head start on the flight to Southern California and went right to sleep.
After the Simon left the game, the Yankees put exactly two runners on base. Curtis Granderson got hit by a 3-2 pitch to lead off the seventh, and Alex Rodriguez drew a two-out walk in the tenth. That's it, no hits and no runners past first base. Between this game and Wednesday's extra innings loss, the Yankees picked up just four hits, three walks, and the one hit-by-pitch in a dozen innings against the Baltimore bullpen, striking out 14 times. This is the same bullpen that came into the game with a 7.42 K/9 (24th in MLB), 1.27 HR/9 (29th), 4.20 ERA (27th), and a 4.36 FIP (28th). You can't win if you don't score, and the Yankees didn't score after the starter left the game two days in a row.
Eighth Inning Guy
Despite their offensive ineptitude and Ivan Nova's struggles (more on that a bit), the Yankees still maintained a 4-3 lead into the eighth inning. David Robertson had made two appearances in the span of about 13 hours the day before, so he was understandably unavailable. No big deal, big money setup guy Rafael Soriano was available and he came into to bridge the gap to Mariano Rivera. No problem, right? Wrong.
Mark Reynolds opened the inning with a single that turned into a double because Brett Gardner had a rare defensive miscue for the second day in a row. The ball bounced in front of him and he just missed it on the hop. Nolan Reimold flew out to right, but then Chris Davis singled to center. Granderson came up throwing and gunned Reynolds down at the plate, Frankie Cervelli's second home plate collision in as many innings (more on that in a bit). Davis advanced to second on the throw, but the lead was safe. At least until Robert Andino singled one batter later, allowing Davis to score.
The game was tied, and the inning ended when Andino stupidly got thrown out trying to steal third. Soriano faced five batters in the frame and retired just one on his own, Reimold on the fly ball. The second out came on the play at the plate, the third on Andino's caught stealing. Rafi's allowed at least one baserunner in his last eight outings and in ten of his last eleven, and there's been a number of loud outs lately.
The Great Wall of Cervelli
The Orioles did eventually win the game, but they would have won it a whole lot sooner if it wasn't for a pair of plays at the plate. The first came in the seventh inning, after Aaron Laffey walked leadoff man Nick Markakis and Cory Wade retired Adam Jones. Wade left a pitch up to Vlad Guerrero (who was raking all game) and he crushed it to dead center. Granderson made a nice play to cut the ball off before it hit the wall, and he fired to the infield. Robinson Cano fielded the ball as the cutoff man and made a perfect relay throw to the pltey. Markakis came in hard and laid Cervelli right out, but the Yankees backstop held onto the ball for the out. It was a pretty rough collision, Cervelli took a shoulder right to face, but he stayed in the rest of the game.
Because one collision wasn't enough, there was the second play at the plate in the eighth inning thanks to Davis' single off Soriano. The second collision with Reynolds wasn't as hard as the first one, not even even close really, but it was still a great play by all involved, not just Cervelli. Neither Markakis or Reynolds even touched the plate, and after the game Frankie said he was a dizzy, but "that's my house, man."
Death By Bullpen
Nova was off pretty much all game, showing little ability to command his fastball and get it down in the zone. That's why nine of the 14 non-strikeout outs he recorded were in the air. He just wasn't right, and Vlad tagged him for a solo homer in the second and a double off the right-center field wall in the fourth. Nova did wiggle out of some jams and pitched into the sixth, but he was clearly not at his best. Once the bullpen got involved, things got really messy.
Boone Logan came in to face Davis with a runner on second in the sixth, and for some reason he threw the whiff machine just one slider in a seven-pitch at-bat. Davis turned a 3-2 fastball right around for a run-scoring double, ending Logan's day. He's now faced 102 lefty batters this season and has given up eleven extra base hits (six doubles, a triple, and four homers). Last year he gave up just one extra base hit (a triple) to the 91 same-side hitters he faced. Logan's overall strikeout (10.2 K/9) and walk (2.4 uIBB/9) numbers are fantastic, but his job is to get lefties out and he's been pretty bad at it this year (.261/.314/.478 (.478!!!) against).
Luis Ayala replaced Logan and did his job, getting the two men he faced to end the sixth without anymore runs scoring. The Laffey/Wade stuff happened in the seventh, Soriano happened in the eighth, and then Scott Proctor escaped certain doom in the ninth before coughing things up in the tenth. An infield single (Reimold), a walk (Davis), and a single (really a double under normal circumstances) past a diving Chavez down the left field line (Andino) ended the game. Pretty terrible effort by the pitching staff in this one.
There's really nothing else left to recap, which I guess is good. It is worth mentioning that Nick Swisher was seen flexing his left (throwing) arm/hand basically all game after making a throw in the fourth, but he stayed in the game. Ken Singleton mentioned during that sometimes your arm will cramp up after a big throw, so hopefully that's all it is.
The Rays were idle on Thursday, so the lead on the wildcard dropped half-a-game to nine games. The magic number for a playoff berth remained at 12 games. The Red Sox lost to the Blue Jays again, so the lead in the AL East remained at 2.5 (three in the loss column) with 20 games left for the Yankees and 19 for the Boston.
Box Score, WPA Graph & Box Score
MLB.com has the box score and video highlights, FanGraphs some other stats, and ESPN the updated standings.
Up Next
The Yankees are going going, back back, to Cali Cali. A three-game series against the Angels in Anaheim starts at 10pm ET on Friday night, when former Halos ace Bartolo Colon takes on current Halos ace Jered Weaver.
Staten Island shuts Brooklyn out in Game One
Twenty-fifth rounder Adam Smith was ranked as the eighth best prospect in the Texas Collegiate League by Baseball America (subs. req'd). There's no real scouting report in the write-up, they just note that he was an infielder and a pitcher at Texas A&M, but the Yankees took him (and paid him $157k) as a pitcher. Unsigned 33rd rounder Spencer O'Neil was ranked as the fifth best prospect in the West Coast League (subs. req'd), and the high school outfielder was said to have a "beautiful lefthanded swing" with "good feel for hitting and some power potential." He's off to Oregon.
Just a heads up if you plan on going to Friday's Short Season Staten Island game (in Staten Island), it's been moved up to 1:05pm ET to avoid the upcoming rainstorm. It was supposed to be a 7:05pm ET start.
Short Season Staten Island (2-0 win over Brooklyn) SI leads the first round series one game to none (best-of-three)
Mason Williams, CF: 1 for 4, 1 3B, 1 K – opened the game with leadoff triple and they couldn't get him in, so at least we know RISPFAIL it preached throughout the minors [/sarcasm]
Cito Culver, SS: 1 for 4, 1 K
Ben Gamel, RF: 1 for 4, 1 R, 2 K, 1 SB
Tyler Austin, 3B: 2 for 4, 1 RBI, 1 SB – singled in Gamel for the second run in the eighth, though a throwing error helped get him into scoring position
Reymond Nunez, 1B: 1 for 4, 1 R, 1 K
Casey Stevenson, 2B: 1 for 4, 1 K
Zach Wilson, DH: 0 for 4, 2 K – finished the regular season on a 14-for-32 (.438) tear (two doubles, three homers)
Cody Grice, LF: 1 for 4, 2 K
Nick McCoy, C: 1 for 4, 1 RBI, 1 K – the number nine hitter opened the scoring with an RBI single to plate Nunez
Matt Tracy, LHP: 6 IP, 2 H, 0 R, 0 ER, 1 BB, 4 K, 8-4 GB/FB – retired a dozen batters in a row at one point … Bryan Mitchell had been lined up to start the first game, but that was two rain outs ago
Phil Wetherell, RHP: 1 IP, 0 H, 0 R, 0 ER, 1 BB, 0 K, 1 HB, 1-1 GB/FB
Branden Pinder, RHP: 2 IP, zeroes, 4 K, 0-2 GB/FB – dominant, but I have to imagine Ben Paullus is tomorrow's closer
Triple-A Scranton, Double-A Trenton, High-A Tampa, and Low-A Charleston all failed to qualify to the postseason. The Rookie GCL Yankees have already won their league title.


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Optimize Your Blog for Google Blog Search
Geoff Simon has written an article on Google Blogsearch, the premier search engine for blogs, and has come up with some interesting observations for optimizing your blog.
He has separated Google's search patent into 9 indicators and then further divided it into the good, the bad
and the ugly factors that Google Blogsearch uses to determine how worthy your blog is:
The Bad:
1. Content, Content Content. You've heard it before and it bears repeating, but this time it has an interesting twist.
If the feed content in your blog is different than the actual content in your blog, this is a negative indicator.
Spammers will put a different version of content into their feeds to improve their rank than what is actually on their blog. This "mismatch" between the feed and the blog is considered by Google to be a negative indicator of the quality of the blog document.
2. Posting Frequency.
Google Blog Search also looks at when you publish your post.
Spammers generate new posts in spurts or at predictable intervals. Both behaviors are correlated with malicious intent and can be used to identify possible spammers.
Huh! This sounds a little contradictory to me and I'm guilty on both counts. Uh oh. Obviously the algorithm must be a little more complex than that, or at least I hope so or we are all in big trouble.
3. Words or Phrases. Google keeps a list of words and phrases that can appear frequently in spam, and if a blog document contains a high percentage of those words or phrases it can be considered to be a negative factor.
4. Links to other Blogs. If a high percentage of outbound links go to just a single site, it can also be considered to be a negative indicator of the quality of the blog document.
5. Post Size. Don't make all your posts the same size, otherwise Google Blog Search thinks it smells fishy and will consider it as a negative factor as well.
The Good:
6. Blog Pagerank. A high page rank indicates quality and can be applied to your blog posts as a positive indicator of the overall quality of your blog.
7. References from Outside Sources: Your email content or chat transcripts that contain URLs of blog posts. Apparently Google indexes those as well (only Gmail perhaps ) and also takes that into consideration. And speaking of email, did you the know the Bloke offers an email subscription service? Hint, hint .
8. Tags. According to Google this is an indicator that you have evaluated the post and appropriately described its content. All the more reason why you should be using the Bloke's search tags.
9. Blogrolls. Google likes quality links in your blogroll as well as in other blogrolls that link back to you. This is considered an indicator that the blog owner is interested in those external sites and its popularity.
So there you have it. If you blogroll the Bloke and join the Blokester Network you will also be helping yourself. Told you so. Source.
Andy Beard has also done a nice job evaluating the Google search patent.
What are you doing wrong?
Please tell me 'cause I'm nosy and I want to know.


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APPEAL from the Circuit Court of Cook County; the Hon. JOHN S.
BOYLE, Judge, presiding.
Rehearing denied January 27, 1972.
On August 17, 1964, a jury in the circuit court of Cook County found the defendant, Sylvester Hubbard, Jr., guilty of rape and robbery committed on January 30, 1964. He was sentenced to imprisonment for concurrent terms of not less 25 nor more than 50 years on the rape charge, and not less than five nor more than 10 years on the robbery charge. These convictions were affirmed by the appellate court (People v. Hubbard, 77 Ill. App.2d 14), and leave to appeal was denied by this court. The defendant's post-conviction petition was denied without a hearing, and from that denial he has appealed directly to this court.
The opinion of the appellate court sets forth the circumstances under which the defendant had first refused to be represented by the public defender and then had refused to be represented by the private attorney that the court had appointed to represent him after the public defender was permitted to withdraw. They need not be repeated here. In his amended post-conviction petition and in his brief in this court, the defendant suggests various steps which might have been taken if an attorney had actively represented him during the course of his jury trial. These suggestions, first advanced more than five years after the jury's verdict was returned, overlook the fact that the defendant was without counsel because he chose not to be represented by either of the attorneys who had been appointed to represent him, and not because the State had failed in its duty toward him.
The contentions now urged that those attorneys refused to consider the possibility of his innocence and were unwilling to try his case were not put forward at any time during the discussions that preceded his trial. If he had said then what he says now, the trial judge could have probed the truth of the charge that he now makes against his appointed lawyers. He did not do so. Instead, his objection at that time was that those lawyers were not competent. And in the appellate court his basic argument, which that court rejected, was that there was no waiver of his right to counsel, because he was not told with sufficient clarity that if he rejected both of the attorneys appointed to represent him, he would have to try his own case.
The judgment of the circuit court of Cook County is affirmed.
Judgment affirmed.
MR. JUSTICE WARD took no part in the consideration or decision of this case.
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