every year and it's not just my client it's basically every hospital in new jersey every hospital in pennsylvania this is a nationally watched one case just beside the year two thousand which is here is it an ongoing issue doesn't affect other years it affects other years and it affects every medicare provider in the state and in many many states and not medicare medicaid cut to the chase here if i can that realizing that time is short and that the we have a very complex body material to deal with i'd like to ask you just a short minute question and it should be just for clarification and that is the district court p let me let me move things along here and that's part of cutting to the chase i think you know for the sake of my own credibility and because it's fairly obvious this this provision is not clear one way or the other we've marshaled arguments to language is supportable we've marshaled arguments on the other side i think judge samantha all came down squarely in the middle and said this is ambiguous happening and not the first of all the language is impenetrable second of all different courts have viewed this different ways judge obrador for very respected very learned a judge in d c read this language as plainly saying where we say isn't language do you say what are we talking about are we talking about eligible for medical  looking for for the definition of medical assistance where do we go for the definition and isn't that you have the bottom of the dispute here where do we go to title nineteen statutory section idle eighteen specifically mentions well it does and it and it doesn't because title nineteen the definitional section that the court below relied on of the d c circuit relied on is found in section one thousand no five a of the act and the the opening statement to that definitional sections that these definitions are for purposes of this title which is titled nineteen medicaid the medicaid dish provision also that the  court lower line on that the government relies on was an act that after the provision in question so at the time this provision was enacted there were no medicaid dish days there were no section eleven fifteen expansion populations and this was congress's initial attempt in hundred eighty five to create a medicare dish adjustment in the only other place in the statute we're aware of where congress talks about medicaid populations specifically in title eighteen it relies on would use the word eligible for medicaid and then title nineteen in various places uses the word eligible for medicaid and then tunnel nineteen which is medicaid the medicaid chapter in various places refers to medical assistance which are the key terms among the key terms here as being payments made pursuant to a state plan so title nineteen medicaid uses the terms medical assistance standing alone as having a variety of meanings depending on the context and the meaning that was imported for use in title eighteen here came from a section that contains a warning or a prefatory statement saying it's only for use in this in this title which is you know it's this there's no dispute that the new jersey state plan which contains this disproportionate share provision was approved by the secretary it's included in the appendix it refers specifically to the charity care funding relationship and it refers to payments being made on account of documented care to patients in world in that program which is why from the literal terminology the board looked at this thing and said well why wouldn't not eligible for medicaid they are not eligible for more medicaid benefits but we are positions they are eligible for benefits for medical assistance under state plan because if they go to the hospital that's that's who pays for th for the care and that's reflected in new jersey's state plan unlike the ohio plan by the way which the d c circuit looked at in edina these are patients who specifically are paid for but in terms on a patient by patient basis from under the state plan so what is the relationship between the n g c c e and new jersey's state medic here plan medicaid plan if it's it is is the payment for services under that program or are under the plan another was the only funding the sole and exclusive funding for patients and hospitals treat under this program or made as medicaid disproportionate share payments on account of those patients and the hospitals receive what we call medicaid lite they get a medicaid rate discounted for these patients and then there's no dispute about that that the the the p r b recognizes that the administrator recognizes that this record recognizes that they're covered under the under the dish provision the question is is that medical systems under a state plan and what i would really like to focus on is is our third argument which is  there there is enough conflict about what these confusing terms mean and what this phrase means that the secretary is entitled to deference at the second under chevron if the secretary has a reasonable and permissible construction of these terms but there's then a counterpoint to that and the counterpoint to that is the administrative procedure act and push the quale is the case we would rely on in that respect and basically the doctrine is that even if an interpretation can be chosen as  several permissible interpretations alternative and permissible interpretations under chevron under prong two that doesn't end the inquiry and the question becomes even if you choose or an interpretation that's grammatical plan says this is a form of medical assistance and it's medical assistance for those who do not qualify for medicaid so the conundrum is is it medicaid or is medical assistance broader than medicaid we believe medical assistance congress permitted the secretary to include these demonstration projects in the medicaid rack and it's very significant in mention charity care patients  the specified that these eleven fifteen expansion populations could be covered and in so doing congress was not requiring medicaid eligibility because the starting premise was that page thirty one of the reply brief to the extent the secretary determines inpatient days of patients not so eligible but who are regarded as such because they receive benefits under a demonstration project approved under title eleven in other words what congress was ratifying was secretary's right to include expansion populations even though they are not funded under title nineteen the jersey charity patients in fact have always been funded under title nine hundred because the dish payments are part of the state plan under title nineteen so we believe quite strongly that the congress is is actually sees it cooper's way because congress in two thousand and congress in two thousand and five basically ratified a regulation which included patients who were not medicaid eligible because they were deemed to be funded you read like this ok and i gave  dahlia please the court my name is anthony steinmeyer i'm from the department of justice and i represent the happily secretary of h h s if i could direct the court's attention to the language since it's intricate but the c circuit in the dena said when you work your way through it it's unambiguous it's clear the district court was a little different that said it's ambiguous but there is clear statutory support for the secretary's view so under different from new jersey i don't believe it is and there the key thing if i may be time my argument to try to simplify let me get the words in front of you and with respect to judge e supplementary appendix on i'm supplementary appendix page fifteen it has the fact sheet for the new jersey charitable care i essentially who's eligible and in the middle of the page it says patients are i'm sorry i'm sorry let me read fourteen first fourteen is who is eligible for the hospital care payment assistance under new jersey's program and point two says that the people who are eligible must be to are ineligible for any private our governmental sponsored coverage such as medicaid so the key thing i want to nail down fro page fourteen to so we know exactly what we're talking about if you're entitled to new jersey charitable care you cannot be eligible for medicaid they're mutual to everybody not me is this right or not two and i'm going to call list the medicare dish rather i could call it f the two but let me just call it medicare dish it's the very it's number two at the very bottom of page fifty two this is the key language in the case this is the language that edina said answers the case question and the key is right or you would the bench just to show you what i'm sure that the people that you count consists of patients who for such days were eligible for medical assistance under a state plan approved and this says title nineteen judge slow better version earlier said sub chapter nineteen of this title i think that's the difference between the us code excuse me and the us code annotated that there's no doubt that it means the medicaid program there's a different way the two versions alternatives i mentioned that his analysis was a little bit different from the d c circuit and we present them both the tall target the d c circuit said this language when you parse it through is clear enough that you that we went chevron step one you don't ever get to deference the district court law said it's not quite that clear we men but let me present the argument why this language which is very technical is clear what does it mean to be eligible the only thing that's clear to me into the deal with you the only thing that is clear here is that nothing is interpreted this and now if i could just director attention the easiest way to do that is also in this blue brief if you could just look at j page forty nine it's the administrators decision below it's the bit farther back in j page forty nine it's page eight of the administrators decision ok now you've seen the first two block quotes it deals with the statutory language in that medicaid dish profession that i was just quoting is that sex is the second paragraph of the first block quote but then he said  secretary interpret those words patients who were first were eligible for medical assistance under a state plan approved under title nineteen and the secretary as you can see in this block quote that starts second computation interprets that language the number of hospital patient days of service for which patients were eligible for medicaid and that's exactly what i'm arguing and six actually what the d c circuit said was clear even without a regulation but this nails it down that's the way the secretary interprets it and if that's so it cannot include the new jersey people because everybody charitable people because everybody agrees they're not eligible for medicaid so end case now there's now a cooper said well you can't rely on this you can't give the secretary deference because the secretary has been switching positions ok now there has been an interaction between congress and the courts over these technical there has been some change but what about the demonstration program now the reason i say that's no problem for us is because there's a special statute that deals with those people and that's special statute says that people in demonstration programs ordinarily for not eligible for medical assistance understand medicaid but as a demonstration problem that program the secretary could waive some of those requirements and they would be but everybody agrees they have not done it for the new jersey charitable so the fact that the sec or so if there is an inconsistency there it doesn't matter because there's such special statute for the demonstration programs  they shall be regarded as though they received medical assistance under medicaid now the other inconsistency was with respect to prisoners but if you look at that state letter the state wrote a letter and said medicaid not me i've been talking about medicare but the state later says for medicaid you can't get medicaid for your prisoners because you use a spade have an obligation under the constitution to give medical care and food to your prisoners are different there that you can't get medicaid and you can't count them in the medicaid dish provision well in the end what the district court did get right was a fact everybody also agrees that for purposes of the medicaid dish pervasion you get the state gets to count these charitable people and that means when it treats medicaid people it gets of those but it gets more money because of this medicaid dish provision but the district court said that doesn't mean that they're eligible for for medical assistance under the medicaid program it just means the rate that you pay to people who are covered by medicaid is of the higher and that same thing works for the medicare and medicare is higher if you treat medicaid patients but not that doesn't mean medicaid patients are medicare patients it just means the rate for the medicare patients is bumped out when you parse it all together i'm not sure you'll come out where the d c circuit said that all is clear in the end but even if you does come out with a district court said it's permissible i showed you in the formal regulation or the secretary interpreted it as meaning eligible for medicaid and these people are not eligible for medicaid so both the district court and the d c circuit in the drina reached the right result through slightly different reasoning as you and i have to confess and in the former life when i was a has really put all of its eggs in one basket and i really want to focus on what the secretary did they had two thousand they have a language and then they have several right but but there are two for their back right there basket is a two compartment basket which consists of chevron section one and chevron section two the government for understandable reasons if you cut through all the complexity ignores the a p a argument which is how can the secretary under chevron get deference for saying that the touchstone of the statute is medicaid eligibility when in two thousand and january two thousand the secretary of men's half of the regulation with regard to the eleven fifteen waivers  jersey plan medicaid is excluded right but the secretary in two thousand said here too for we didn't recognize waiver populations unless the individuals would qualify for medicaid if the waiver people met the income standards and the thirteen categories of eligibility we will consider them then the secretary had an epiphany in january of two thousand and said we got that wrong the statute doesn't require medicaid eligibility the statute instead requires funding under title miking i'm going to read from what the secretary first the secretary said in the in the proposed rule that we recognize that we're now letting into the door waiver states folks who are not medicaid eligible could not qualify for medicaid but it doesn't matter because we're going to from now on consider the patient days of populations eligible for title nineteen matching payments to be treated as medical assistance and what congressman contrary to what steinmeier and i have a long relationship together we work in the same office for ten years but notwithstanding that friendship he got it wrong he said to you that the d r a amended the statute to say these people will be treated as though they are eligible for medicaid that's not what congress and it's at page it's the statutory denim of page thirty one of the reply brief and at the top of that page the actual amendment says we're going to allow these in even though they are not not eligible because they receive benefits under an approved project under title eleven so what congress said is once the secretary treats title eleven funding as regards it as title nineteen funding you can count the the secretary having determined in two thousand that funding through title one thousand was enough to count the days nonetheless turned around and said we recognize and it's in the preamble as we discussed in the reply brief we recognized that we are in effect discriminating against hospitals in states like new jersey and pennsylvania as opposed to hospitals in states like arizona and delaware which operate under these waiver programs because in those states hospitals can count anybody funded under a state plan whether or not they are medicaid eligible but we're not going to change our mind about these dish patients and suddenly you've got extreme disparate treatment among hospitals located in different states and the secretary's own rationale for recognizing eleven fifteen which congress ratified requires recognizing titled dish days because they too are funday or they've always been funded under state when they didn't congress didn't have to make it happen in yri of ha proxies in medicare supposedly to cover all low income patients the secretary says issues let's dump those patients out should be marching in washington you know the flag here well i don't think we need to amend a statute that that already provides for that in congress i think ratified an understanding in two thousand and five by saying if you're funded under a state plan you can be counted that's the import of the deficit reduction act also the ninth circuit in portland set a true the of the key provision it doesn't it doesn't say we're going to count patients patients eligible for medicaid it says we're going to count patient days for such period down your red line ok i don't want to over i