decision denying ohio's request for federal matching funds for pretrial juvenile detainees ohio asked the federal government to revive matching funds for people under age eighteen who were pretrial detainees who were held for temporary periods pending other arrangements appropriate to their needs that's just about the exact language of the request simister neither request what it said was federal matching funds aren't available for these pretrial detainees because they're not being because they're being held in voluntarily but that volunteering this requirement doesn't appear anywhere in the statute or the regulations that c m s passed use to speak up just a little that please the federal matching will agree that federal matching funds are unavailable for inmates of a public institution that phrase inmates of a public institution is in the statute and it's in the regulations but the regulations define one inmate as they say you're not an enemy and therefore federal never says never disputes that the children issue in this case are in a public institution so that because they never disputed that the children being held temporarily so that issue goes away and they do not dispute that once the children have their cases adjudicated that they will be transferred to other arrangements appropriate to their needs and some of the sort of detention or release instead they've they based their entire decision their entire denial ohio's request on this voluntary this requirement that doesn't exist in structured role so we're going to see him and say that this requirement comes from well they are a little bit unclear but they say that it comes from their administrative materials the sub regulatory guidance right not things passed not rules passed subject to notice and comment period but letters to congressman program and renders things like that but we don't even get there in that case the court shouldn't consider those materials because explained how the court should even reach the issue of this administrative interpretation of something in the sub rigatoni guidance when they agree that the statute in the regulation is clear even  all think those arguments are in the alternative that they argue that the regs on the statute are clear on their face however if they're not the backup position as our prior  then you don't reach the regulatory guidance or you don't but you do it here if you have alternative arguments i mean i'd just don't quite understand your position because i'm starting to do that every day right but if they succeed if they succeed on their primary they're not clear that they're ambiguous why can't we consider these prior decisions by the agency well if if we're reaching a point where we're considering guidance then we would only own rules what matters is whether you're held being held temporarily pending other insurance appropriate to your needs there's no voluntariness requirement in there now the administrative decision below and see mrs briefs sort of tend to very clear regulations that say what an inmate is not nope at no point do they ever say which words in those definitions of what an inmate is not give rise to the ballot going turn its requirement samosas regulations p yet but their position is also inconsistent even today before the court they say that for example in their briefs f p for much of funds would be available if a child is removed from his home and kept in an emergency public institution on an emergency basis awaiting a foster care placement but the child is not there voluntarily for that matter children aren't anywhere volunteer children have a right to custody not to self determination like adults now c m s again they're not challenging this on the temporary basis they're not showing changes on a public institution basis there their entire case is based on this temporary requirement which doesn't appear anywhere in the law one of their arguments is this policy basis that sameness doesn't want to supplant the state's obligation to pay for individuals held in custody but they do that all the time when they pay for people who are transferred canonical institution post know that's a statutory exception but it shows that the policy regulate but it shows that the policy reason for prohibiting federal matching funds is not quite as airtight as c m s has argued that it is another argument is that interpret i availability of federal matching funds would notify the entire inmate exclusion but that's just not the case there's a courts have recognized in a wide variety of cases and we discussed this the court discussed this difference in another case just now in an earlier asking for we would never say we're not asking for a rule of law that says the federal matching funds for available post adjudication and other argument that simmons has is that well if we define the word temporary to  include pretrial detention then it would automatically include post trial tension but that argument leads to absurd results under that argument anyone being held for any length of time would always be being held temporarily even someone who's you know result is to rewrite the regulations and c m s knows how to yes the way we know that is because he misses done it and the regulations see most references the chip i think that's children's health something program a program for kids and edge guy i have a question going back to the plane wording of the applicable section and then it is said it seems to me if your argument is is correct that you didn't need a in any amendment if you have a juvenile are covered under being in a public institution for a tempered period of time pending other arrangements then you chris should have just asked to be reimbursed for that and addition to that it seems like when you say including individuals under age nineteen in detention you're almost narrowing the scope of what  claim that other provisions mean it just when you say including it to me it's like if you were to say that third grade is growing on a field trip including jimmy jones and jimmy jones state medicaid plan if the state wants to ask for federal matching funds for a category and a new category of individuals that needs to submit the state medicaid plan so i would i would say that ohio is entitled to have its state medicaid plan approved but it still needs to go through the technical process of drafting a plan submitting it to c m s and having c m s pass on it in response to your second question the category of individuals under age nineteen in pretrial detention is an example of a larger group of individuals who are temporarily in public institutions pending other arrangements appropriate to their needs if you look at c m s as one thousand nine hundred seven memo towards the back they talk about other categories of  speaking broadly that medicaid steps in when there's nobody else to help or pay and they have taken the the the approach that sense people in custody by states the state has an obligation to take care of them and they're not going to reimburse for that particular type of situation and in in that regard and so to the that they talk about people in custody in criminal cases and whatnot is being in the system in some respects you are now putting individuals under age nineteen in de tention in this stuff and it's clearly always been the government's position that such persons that they're not going to reimburse for that and as far as your argument goes that know gets the parents to do this if i had the obligation the fact that they've had obligation off of somebody else wouldn't change anything as far as i'm concerned anyway again  that the parents are eligible for medicaid themselves a million of them getting stuff to play yours is that right is that wrong that's actually not necessarily the case your honor there are many ways an individual can become eligible for medicaid eligible for medicaid not necessarily ice but now i suppose there are instances in which the children are not a hundred percent sure about this but i believe this is true there are instances in which the children could be eligible for medicaid for example on the basis of disability but the parents wouldn't be eligible for medicaid based on their income for example we we do see in the medicaid program plenty of people that have very well to do parents over their children who are eligible because their children because they're disabled and i know statute and really the plain language of the regulation that says when someone is not an inmate of a public institution as any other state made this argument yes this argument was made in maryland in the maryland supreme court i don't remember that maryland case the brown i checked it just the other day before i came here i didn't find any updated ok so in maryland your your proposal is the law it's unclear what's happened in maryland after the maryland case was decided in one thousand nine hundred five i believe c m s issued that nine hundred ninety seven memorandum that it's talking about in this case so i'm not sure whether maryland has changed course i've made attempts to reach out to some folks in maryland before filing  briefing and was unsuccessful ok please the court counsel lucila psyching on behalf of the secretary of health and human services petitioners position that juvenile detainees are not inmates of public institutions defies the plain language of the medicaid statute and the secretary's reasonable interpretation of this case can begin and with the medicaid statute if this court gives the statutory term inmate of a public institution it's common sense meaning then the secretary's decision must regulations for thirty five point one zero one zero and then you're asking for deference notwithstanding the fact that you're advancing inconsistent interpretations you think we can and if you're doing that purely as a little geisha instead think think we should be able to ask you to explain that absolutely your honor and i will immediately then turn to the regulatory issues that you are  yes ok and to address those claims point the secretary does not think that her position or the way the regulation is worded is at all inconsistent with the statute secretary's regulatory definition mirrors the language that congress used congress talked about an inmate of a public institute and when the secretary defined inmate of a public institution she said he made over he i guess now we have an acting secretary inmate of a public institution means a person who is living in a public institution that's all we have for the definition and then we get to these exceptions to the definition which i think is where your honor is concerned that there's an inconsistency and i'd like to explain why we don't believe there is any inconsistency whatsoever in the regulatory language contained in forty two c f r four thirty five point ten ten the point you're just really this is really true because children who've been around and the regulations account for that and define the children who are in a child care institution differently a child care institution is not considered a public institution public institutions under the regulatory definitions are pretty limited and definitely include correctional facilities and detention facilities but to get back to what your honor was asking just a moment ago about ten and and the definition contained therein with respect to the exceptions and be  those steps those regulatory exceptions that the secretary carved out deal only with people who are not in it's and that's really important the regulations as an individual is not considered an inmate if one of two situations exists and then we have an be a set as an individual in a public educational or occasional locational training institution is not  n and as the secretary concluded in her decision in this case or his being an inmate contains an element involuntary ness confinement or restrictions on liberty which does really at issue here a part being an individual who is in a public institution for a temporary period pending other arrangements appropriate to his needs likewise that person is not an inmate the prefatory language said that a person is not an inmate if this type of situation exists so we don't even get to this situation in this case because under our view which has been upheld through the secretary's decision and other courts who have looked at what inmates are they conclude that inmates and detainees are the same thing in many ways inmates detainees convicts it's all it's under a common sense meaning of the word it's a person who's confined who can't leave the place that they're at so once you are an inmate you're not in this category of someone who is there for a temporary period pending other arrangements and with respect  is that of an inmate in a public institution and congress said in the broadest possible way that medicaid federal dollars cannot go to the care of quote any individual who is an inmate of a public institution and congress didn't distinguish between inmates who are detained or sentenced it didn't differentiate between adults and juveniles so long as a person has the status of an inmate congress says that federal financial participation cannot be applied to his medical care with that sole exception that counsel recognized as in the statute which is for a patient who is in a medical institution with respect to trying to get back to your honor's question about her being and counsels point about the temporary nature of this in the secretar interpretation inmates are not defined by the nature of having a temporary stay rather it's not in mates who are defined in this way and in the regulatory guidance the secretary and the agency provided some examples of what might be a situation where somebody is in a public institution pending other arrangements and they're there for a temporary period and that is for instance there's a natural disaster or someone has no other place to seek refuge they might seek refuge in a public institution they're not inmates they can leave but they naturally because they're in a public institution they would still be  e we want to make sure that it's clear that they're not inmates so that they can receive their their medicaid matching dollars if necessary but for inmates as judge guys question indicated i think that it is the responsibility of the state to provide for the care of its inmates and its detainees and i don't think that counsel is really arguing that if the pair are able to pay that the state does not have responsibility i think the constitutional protections that are in place under the eighth and fourteenth amendments would clearly require the state to do that or the county county government and certainly the fact that costs have been shifted by the state to parents who can pay doesn't really change anything with respect to what counsel is raising regarding voluntariness as not being in the statute the secretary believes this is really a distraction the word inmate is what is in the statute and giving that given that word it's ordinary meaning that someone who is can find whether it be a detainee or a sentenced person that is what drives the analysis in this case and we believe that congress statutory definition of inmate is so broad that juveniles must be included and detainees must be included in the state's i reply brief noted that the juvenile justice system has changed over time to for juveniles the same constitutional protections as adults but this fact doesn't have any bearing on whether medicaid inmate in school inmate exclusion encompasses juveniles and if anything the state's point actually supports that juveniles and adults should be treated the same again we believe that the definition  is very broad it is inclusive it is unambiguous but if the court concludes that there is an ambiguity as to what an inmate is and whether inmates do indeed include detainees then chevron deference should be accorded to the  statutory to the secretary's interpretation congress delegated the authority to the secretary to make sure that medicaid state plans comport with state law and as noted in our brief cases across the country including this court in harris  the interpretation of the present regulations and chevron deference would would apply to his statues were not there's not a might be appropriate it wouldn't come into play in the in this situation or that your honor we believe that you don't even need to get to the regulatory exceptions in this case to the different definition of what an  so if you're only looking at the statute yes chevron deference applies if you're looking at the secretary's regulations that apply but if you want to argue that you are entitled to it it would be with regard to th interpretation of the statute with respect to the regulatory materials first we really believe that the regulation is not ambiguous that this situation that council identified with section b and trying to fit in made juveniles into that exception to the inmate definition just doesn't make any sense people who fit into that exception are not supposed to be inmates if they need some kind of arrangements appropriate to their needs it might require an assessment of where to go what kind of foster care something of that nature we're not talking about the public need to determine whether someone is guilty or innocent or the public need to incarcerate someone it's that regulatory definition deals eligible and could have federal medicaid dollars applied to their medical care and we believe that and i don't want to rehash things we may have already talked about the voluntary  voluntariness to the extent i mean that i know that's what the state is arguing is our position but when you know you you came up with this volunteer in this terminology to come from the state the since you came up with that i would think you know where your got it from well it's from the definition of inmate your honor and we believe that is a reasonable interpretation of the word inmate that someone who is an inmate is someone who's confined you mean from  administrative brief and in our administrative brief we also cited the u s supreme court's decision in the rufo case where they treat detainees like they just use the term inmate to refer to pretrial detainees so the secretary simply used a well established way of referring to detainees which is as inmates and that is our interpretation of the statute which we would also qualify for federal it's actually my question i was going to wait asked the ohio attorney because it seemed like the logic that they use that juvenile detainees awaiting adjudication of their criminal cases or not inmates of a public institution would apply to adults as well as juveniles i mean is there anything special about their only requesting medicaid coverage for juveniles but the logic would apply to adults as well as your honor and we believe that's that's a serious problem and that a real serious problem and that that would work a radical change in the medicaid program and shift potentially enormous costs from the states to the federal government which congress never intended the federal government to bear quite clear th also noteworthy that no other state has sought to him and it's planned in the way that ohio what happened in maryland and it impacted not involve a state plan amendment and actually if you look at footnote seven of that brown decision the court acknowledged that the time for the state to have sought federal reimbursement dollars had lapsed so that question was never even presented maryland is just like every other state in the union and f p is not available for any only recently asserted and this underscores the fact in our view that the secretary's power c has been settled and has been accepted by the secretary of state partners for literally decades because the secretary's position is consistent with the statute regulatory taxed and settled agency practice and we were not asking for any particular type of deference for those agency materials i think the courts have recognized those are case by case determinations as to what kind of deference applies but here we think chevron an  our apply to the statute are and should and should apply to the statute in the regs probably as reasons we ask the secretary's decision be affirmed on thank you thank you there's a little bit of confusion here sort of a logical bait and switch that's going on with the serious argument what they keep saying in their decision below in their brief in your argument here is that it is always interpreted the exclusion for much you funds to apply to  would apply to a dog detainees awaiting adjudication of their cases would it not the force of logic would apply to adults to the right do you think that's what the statute intended i don't know there may be some other oh there may be some other issue that we haven't logically your position is of course of medicaid wants to avoid that result and needs to do is write rules like i wrote in the church proviron while we're dealing with a statute first and isn't it odd that the statutes that on the books for in the mates a public institution is that statutory is that regulation statutory ok i thought it was but the regulation we are dealing with a statute first and then regulation second and then maybe interpretations of the regs third in  and then it says you're not even in mate if you meet these requirements temporary pending other engines appropriate to your needs and c m s says don't go there don't don't look at all of these people are pending the criminal charges against but again the issue here which c m s still hasn't explained they haven't explained why these individuals are not being held temporarily pending other arrangements appropriate to their needs and then we are in there being held pending of the criminal charges in juvenile court u s has never argued in its brief and they waived that argument that these people that these children are being held in doing other arrangements are privy to their needs they haven't made that argument in their briefs and the administrative decision below hasn't made that argument they don't dispute that the covered children in this case meet both of those requirements and they also don't dispute i'm saying i'm sorry if you meet both of those requirements under the plain language of the regulation then you are in sorts of things change once you become adjudicated or once you become convicted the changes in time in the juvenile justice system the state included that argument in there because summa said hey look the statute doesn't distinguish between juveniles and adults and we said that's right that's probably you shouldn't read into that the fact that they meant to treat them the same you shouldn't you should it's just as likely or should read into that the fact that everybody realized that in one thousand nine hundred sixty five when the statute was drafted those two populations were entirely different so you didn't need to say cats and not dogs because everyone understood that cats and dogs the two populations were different from we don't have any chevron difference here because what we're dealing