in two thousand and reaffirmed in two thousand and three that was ratified by the congress in two thousand and five once again the agency is trying to restrict the dish formula to persons eligible for medicaid  although it officially walked that back in two thousand when it said it includes all section eleven fifteen patients the two thousand and final rule is clear that formerly dish had only included section eleven fifteen days for those who quote were or could be made eligible under a state plan but now in two thousand the secretary recognized that it allows for the expansion population the people who were not eligible to be treated as medicaid beneficiaries unquote the interim final rule was specifically mentioned by congress and the d r i says that the expansion waiver days are you us by patien misspoke this is actually from the final rule later the waiver days are utilized by patients whose care is considered to be an approved expenditure under title nineteen medicaid these days are considered to be title nineteen days by medicaid standards they distinguish the expansion from patients who otherwise would have been eligible for medicaid title nineteen that's exactly what the secretary's trying to do here over and over again in the dish payment that's what they did before two thousand euro and for no reason that they've been able to articulate they were trying to walk that back even after congress ratified it so is it your position that the statute and the regulation are both unambiguous and cut your way the into the statute here on  told us exactly what that regulation means in three different in trees of the federal register there's no need to speculate about what the secretary meant by it there and i believe that by in two thousand and five when congress cites the federal register in the d r a and says yes this is how the rules supposed to be applied then we have to assume that congress was ratifying that interpretation have other courts besides the d district court rule the way you wish us to rule you know the way you wish you ruled that expansion populations are included yes your honor they were cited frequently in the is present let's see what i'm losing them than my outline of college as your own oh no that's adventist where they say no reason to regard you as under title nineteen if you already are under title nineteen  cooper was cited by the secretary when seventy nine f s up third thirty one is good on the expansion population issue and so was the adventists case that i just mentioned already cited in our in our briefs the secretary attempts to create a cloud of ink with this issue of matching payments saying well literally the regulation says eligible for title nineteen matching payments through a waiver and these people weren't eligible for matching payments numerous problems your honour's with that interpretation first when medicaid when a bureaucrat says eligible for title nineteen matching payments they mean eligible for medicaid because that's what medicaid it's a system of matching payments as the secretary correctly notes in the brief and perhaps most extraordinarily if i may refer to the documents that the secretary cited this court to the hyperlink in the the actual template mentioned by the the congress in its reconciliation report page eight of that which we've already drawn the court's attention to is under the heading expenditure authority and it says that the applicant is requesting to allow the following expenditures not otherwise include as as expenditures under section one thousand nine hundred three now to be mysterious you know lawyers in this area used the social security act numbers that is forty two u s c thirteen ninety six b that the payment statute that's the matching payments the statute provides for that so treating things that are not otherwise matching payments eight fractions numerator what result that's a that's a mouthful of acronyms what result well for my client we do well beyond my clients getting their two point eight million dollars that they're owed the court would reverse the decision of the district court below in order that the case be remitted to the secretary for proceedings consistent with this court's opinion which would require the secretary to follow its own regulations and its the two thousand and three final registry in trade that we have cited in our briefs because there this is the secretary says well it's very important this is an important distinction this matching payments issue nowhere in any of the federal register entries or in any decision that i found just the secretary say well it's very important that there be matching payments folks who are under the waiver and non matching payments folks who are not it's not a distinction that they draw in the two thousand and three federal register entry your honor they never use the expression eligible for matching payments they say over and over again that would you bill for medicaid eligible for benefits under medicaid if that were really what they meant if they were trying to draw some kind of matching matching payments distinction they would spelled it out instead of the distinction that they drew your honor in the two thousand final rule was we're not including the charity cases the state plans that are not under a waiver and that the secretary mistakenly equates this with because i hope it's clear after the two briefs that this is under the waiver no other way to read the secretary's letters no other way to read the application template that the secretary provided and because it's under the waiver the chairman of the p r b pointed this out very clearly at the hearing any any patient days all populations are to be included the secretary's position that only true matching payments can be included in the dish means that it takes back it's own two thousand and final rule if it wants to do that your honor it needs to do it through a notice and comment rule making not through ad hoc litigation that completely astonished my clients when they applied for the dish adjustment and were sectional when fifteen waivers are deemed to be part of the state's medicaid plan right but we don't need to rely on the house conference report to rule for you do we just need to look at the tax the regulation right we need to look at the text of the payments now that's why they try to say oh apply the statute literally these people don't really get matching payments well as the p r b pointed out correctly the p r b majority nobody the demonstration population or the care pool got matching payments because the feds picked up the entire tab so there was nothing to match but again the court should notice that matching payments is just again the way that the agency says eligible for medicaid benefits the owensboro case eight thirty two a third at six twenty two is interesting because it talks that six twenty one actually it's not on the same phrase matching payments but it talks about how the agency uses synonyms eligible for medical assistance eligible under state plan approved under title nineteen eligible for medicaid all the same thing same thing here you're on the secretary should mention in passing the argument in the brief that the these are not benefits because they were the payments went to the hospitals the providers but your honor obviously medicaid payments always  to the providers are medicaid beneficiary does not get a check for five thousand dollars with the instruction please take this to the hospital and again in the in the very letter itself it said in the course of pointing out  in the course of pointing out to the state that they need to be careful with their care pool they express lee said that these payments are on behalf of individuals just the first paragraph of finally your honor i just have to reiterate that the secretary's position has been made clear in three federal register notices those are i think the most important authorities that my clients for a while they have said over and over that they are not going to confine the inclusion of the jewish formula to those who are medicaid eligible rather they are going to include everybody under a sectional in fifteen population because they consulted with the experts at medica consulted stance of lee with medicaid staff who say that eleven fifteen expansion waiver days are utilized by patients whose care is considered to be an approved expenditure under title nineteen again that magic language approved expenditure under title nineteen means matching payments means medicaid benefits means what people in the uncompensated care pool received regulations were prior to two thousand the secretary did not include any patient under eleven fifteen because the secretary took a position that the statute required only those that were eligible for medicaid under the state plans that is decide which whether and to what extent expenditures under these section eleven waivers could would be considered medicaid expenditures and could be included in the adjustment the secretary then passed the the regulations that have been cited in this brief extensively that say essentially there are two types of things under section eleven fifteen waivers the can be included you agree that the secretary has to follow its regulations yes your honor course the regulations say that a patient is deemed eligible for medicaid and therefore included in the just judgment only if the patient is eligible for inpatient hospital services under an approved medicaid plan or under a waiver and the key language here is eligible for inpatient hospital services under a waiver what we have faced with here in the katrina project were two programs the first undeniably expanded medicaid eligibility and made patients eligible for inpatient hospital services under the waiver this is the partition of the letters and the documents that clearly state that women are pregnant women and children under certain income limit are now presumed eligible for medicaid and are now going to be able to receive inpatient hospital second program was the uncompensated care pool that did not make any patient eligible for any type of service what the uncompensated care pool did was it created a pool of money that hospitals could seek reimbursement from if they had uncompensated costs from patients who had no insurance the unconscious the creation of the uncompensated care pool simply does not within the meaning of the regulation give eligibility to any patient for anything what it does is it gives hospitals reimbursement for uncompensated costs and that it was drawn not only in the letter but in the deficit reduction act passed by congress itself which appropriated a separate pool of money separate and apart from title nine funds that are ordinarily given to states to pay for medicaid under both the state plan and under section eleven fifteen waivers the sec the portion of a brief that addresses the matching payments because that was brought up by plaintiff's counsel addresses the it patient that is under their patient is are only included within the dish adjustment if a patient under the secretary's regulations if a patient is eligible for inpatient hospital services under the waiver that was not done here the uncompensated care pool by definition could only be paid out if patients did not have insurance or including medicaid but it doesn't say that it says for and for those evacuees receiving medical assistance under the project for total uncompensated care cost incurred by for medically necessary services it doesn't say that it's only for the impatient it so they're included if they were part of the demonstration project which this demonstration project was absolutely included i'm sorry your honor could you repeat the quote for me i'm reading yes  the the portion of the d r a b with respect to at vacuum we said you not have other coverage for such assistance or insurance including but not limited to private insurance under title nine or title twenty one assistance or child health goes on yes your honor and if i may that that portion statute actually refers to the suit to separate programs from which i discussing so the first portion which states sorry  unfortunately i don't have the text of the d r in front of in front of me but the first portion refers specifically to evacuees who do not have insurance or medicaid correct the second portion states for affected individuals who are receiving care under the project katrina evacuees so your honor affected individuals who are receiving care under the project refers to the first program that i refer to the expansion waiver population the people who were undoubtedly deemed eligible for medicaid because the letters itself and the plan itself said under oath women and children under a certain income limit are according to be eligible for medicaid they were receiving assistance under the project for that population the money appropriated by congress paid for care over and above what the state plans would ordinarily pay but for the first population the people who did not have insurance it paid for all costs and it's you'll note the key distinction in that statute is that for the people who do not have insurance the term under the project is never used these people are not receiving care under the project these are simply costs that the hospitals have incurred because there are people without insurance who have not paid so you're saying that patients regarded as medicaid eligible because of a regulations have recently stated that patient is only deemed eligible for medicaid on a given day if they are eligible for inpatient hospital services the uncompensated care pool not create a legit now that is not to say your  that there could have been patients that were treated by these hospitals that were eligible for medicaid under the waiver again the waiver itself did expand the population that was entitled to eligibility but that is a different city the hospital no point in this in these proceedings have stated here are the people that we have treated that fell within the population that the letter said are now eligible for medicaid the hospital say no way for allows states to pay uncompensated care costs for evacu who did not have their health care coverage and then they can seek that reimbursement i believe that the problem that we're having here your honor is that the pill plaintiff hospitals read the statute as if receiving benefits under the waiver and again the secretary is regulations say only if the patient is eligible for inpatient hospital services under the waiver under a waiver authorized under section  verb there if the statute was read that way yes your honor and let allow me to parse this place a patient is deemed eligible for medicaid on a given day and only if the patient is eligible for hospital services under an approved medicaid plan or under a waiver if if you you have the eligible for inpatient hospice services modifies both approved state medicaid plan or under a waiver if if it didn't there would be no there would be no predicate clause there it would simply say  on a given day only under a waiver that's simply not the appropriate way to read that regulation the question is whether the patient is receiving hospital services which it can do in two ways it can receive it under the state medicaid plan or it can receive them under a deference for you to prevail today your i believe that the plain text of the statute and the regulations support the secretary's interpretation here because again no patient here is receiving in patient hospital services under the waiver of plain text you w still get deference for all reasonable interpretations of the statute if the court found that it was ambiguous it would have to it would then have to do what this court would have to determine that the plain text of both the regulations and and the honor the only way that you could read just the way the plaintiffs have is if you ignore the fact that the regulation requires the patient to be eligible for inpatient hospital services the stat the regulation very plainly says   file something supplemental after this argument to to address addressing this go ahead and address but i would also be happy to discuss this now i believe judge jackson's opinion actually supports what i'm trying to say about this regulation here judge jackson relies very heavily on the fact that she believes that patients in the d c case were receiving benefits they were getting premium assistance and they personally were receiving benefits and the plan itself allowed them to receive those benefits that is not true here do you see c p let the language creating the u c c p very specifically does not talk about patients at all it does not make anyone eligible for anything what it does is it creates a pool of money for hospitals to seek reimbursement from has been apartment appealed just jackson's ruling the notice of appeal has indeed been filed in that case your honor i that is all i know currently about the status of that i believe the appeal has been pending  sense december twenty first which i also know was the first day of the lapse appropriation so i imagine there was probably notice of appeal but no brief as far as you know no breaks yet as far as i know your honor i say i am sure that you know as the secretary will take a position as to whether jackson's interpretation was correct even under judge jackson's decision i'm sorry detractions decision as i mentioned further highlights exactly what i'm trying to say here which is th patients in order in order to include something in the dish adjustment a patient has to be eligible for inpatient hospital services they have to receive a benefit and here we're discussing an entire population of people many of whom again keep in mind that the statute is supposed to be designed to target low income populations if money is paid out under the u c c p there is no income requirement it is simply the hospitals had to do to receive money under the u c c p as to attest that they had incurred care costs and that the patient they treated did not have and charts they further had to specify that that the patient had not paid and of course they were no longer able to receive payment from any other source that was also another attestation so the key difference your honour's between the people who were eligible for inpatient hospital services under section eleven fifteen and the money that the hospital saw from the u c c p if you are eligible for inpatient hospital services you will not get a bill you don't expect to get a bill but many of the uninsured patients for whom the hospital sought money from the u c c p e had no reasonable expectation that they would not be billed they did not receive benefits they were not eligible for medicaid even under section eleven fifteen and the hospitals recently could have sent these people a bill i don't know with specifics with regards to how many people the hospitals did but it's only after the hospitals haven't been paid that you could seek money from the the entire our entire first argument explains that it we're going to be included in the dish adjustment under both the statute and the secretary's regulation the patient has to be receiving a benefit the patient has to be eligible for  services the entire first section of our brief explains that for the katrina demonstration there were there was a group of people who would fall within this regulation that group of people were the people who the extent the section eleven fifteen projects very specifically said were deemed eligible for medicaid and could receive services under medicaid again these were women and children with income limits up to two hundred percent of the federal poverty level that's over and above what it normally is this was a much wider group of people that would ordinarily be covered under the state plan but they are now deemed eligible for medicaid because they're receiving services under medicaid under the section eleven fifteen waiver but the u c c p does no such thing it does not create any entitlement or eligibility for any person to any type of service whatsoever all it does is provide money to hospitals who would otherwise not be able to continue functioning if they weren't getting paid for services from uninsured people why isn't it creating the enti to medical assistance under the project because it does not attach to any person there's no arms evacuees who are not who don't have other coverage and don't have medicaid otherwise because it does not say those evacuees if it said something like those evacuees who do not have coverage or insurance and now eligible to receive services that would be one thing but what it says is that hospitals can stick reimbursement for uncompensated care costs for those patients who do not have insurance and are not otherwise covered it says with respect to the evacuees who do not have their coverage and then it lists the other types of not have other coverage payment is authorized to the hospitals for their uncompensated care costs and that has drawn in distinction for those evacuees in affected individuals who are receiving treatment under the plan under the under the demonstration  evacuees and affected vigils who are receiving treatment under the demonstration project are those the two hundred percent federal poverty level both under the demonstration project one a and b demonstration project what defines the demonstration project one and we talked about people who were perceiving health care under the project for the non federal share but based upon  medicaid yes and one b discuss the receipt under the demonstration project of health care coverage by the evacuees yes your honor and again the question is not whether people there is money being paid out from a demonstration project the question is whether someone is receiving services under the project and is eligible for services eligible for some benefit the deficit reduction act one of two several things the first thing that it did was it created well it's a funding going to several different places essentially there is funding for those affected individuals and evacuees who do not have to pay for uncompensated care costs for those want to jump ahead of what they have to say if i were if i were in charge of the case and the first thing that i would say as to why this is incorrect is paying a premium assistance to people is not creating eligibility for inpatient hospital services which is what is required under the secretary's regulation and that to me would be a key reason why that decision would be wrong how do we treat the letters from h h s the hospitals rely on in this what letter of level of deference if any to week or to the well your honor that the letters i think only underscore this point that there is of course a population under the waiver that is eligible for inpatient hospital services even answer my question at all you wanted to characterize the letters but i'm asking you what level of deference we are to give if any to those letters the letters help provide substantial effort as for the secretary's reasonable decision here h ok thank you thank you we have your argument you've saved time for a bottle c much more organized than i am i'm it's good to be organized at oral argument if you can be very much so you're on the case really should be decided by what the secretary says the radio its own regulation means what the secretary said in two thousand in a response in the final rule is that days utilized under section eleven fifteen expansion waivers waivers that expand the number of people eligible will be included in the medicaid portion the days utilized under any approved sectionalism fifteen expansion waiver in the future would be included in this calculation your honor if we listen to the secretary in two thousand this becomes a very easy case unfortunately the secretary keeps saying over and over now that that's not what the regulation means we don't think the secretary is entitled to walk that back regarding a couple of points your hon r the uncompensated care pool payments were subject to audit the letter said that they would be there was an audit in the record includes an audit of the university of mississippi medical center this was not simply handing out free services or her counsel say well the hospitals could have sent a bill they were getting addresses from people here on our who the addresses they gave didn't have houses there anymore that is the kind of situation they were dealing with the hospitals there's no allegation anywhere at the hearing where testimony was put on no allegation at the hospitals were derelict or that they didn't do a good enough job or that they didn't comply with the plans for strict requirements they did what they were supposed to i heard that counsel say that well you know they're not really providing services to people under this you know that these aren't special services they're getting because of the waiver but they are the hospitals who are required to follow him tell your are without the waiver if you came in in an emergency then they would have had to stabilize you that would have been the only requirement instead rather than turn people away they had people come in and they gave them treatment for medically necessary conditions because the secretary had told them ok you're going there's a care pool and you are going to be paid back for providing these benefits to these people regarding the end of the secretary's backed off two things from the briefs number one no longer claiming that the careful isn't under the waiver which is a good thing and has backed off the matching payments issue now the focus is on w at they were really eligible for inpatient hospital benefits we don't see the distinction your honor the people came in they received benefits health care and the hospitals were reimbursed what do you make of opposing twenty eight a letter judge jackson last october ok thanks we'll well we don't understand the distinction she says the plain language of the regulation on him big us legal requires that all patient pays attributable through  roughly equivalent authorized demonstration project this was roughly equivalent people came in there was no limit they got all the benefits under the mississippi state plan inpatient hospital benefits there's no issue there so we think that actually support your honour's please hold the secretary to what the secretary has said the rule meant over and over again until this case came up