was involved in medicaid understood that when the court said the the medicaid proxy included those patients days for patients who were eligible for medical assistance under state plan approved under subchapter nineteen that included patients that were not in the traditional medicaid but that had been included under a dish program such as kentucky has under such a dish program in kentucky is program particular issue me a dish disproportionate share hospital yawner all the it's now recognize they used to have to brief this but it's now recognized and admitted by c m s that a hospital that treats a disproportionate share of indigent patients low income patients has additional costs that aren't recognized or aren't paid for in the in the does in the d r g methodology of paying for that patient care so for instance if i go to the hospital and a big dish generally is use that term as it is it is it is accepted the question is how how you computed and whether you can if i understand it right is what effect whether you can up your medicare share payment be even closer if you wish well i mean you're not in kentucky and then i have to put in a little cabin off here there's a saying there's an adage when you know when medicaid program you know one medicaid program and i think that's important in these cases so when it comes to that is there are so many waivers and so many variations well in different ways of doing it and what's also important yawner is what somebody calls medicaid in one state they might call something different another state or sometimes indigent care is use one way in one state and choose differently in another state a lot of these cases that have gone against hospitals in other states talk about general assistance days as if they were part of when you say you're referring to the the the ninth circuit in d c circuit cases  a number of district court cases also but there's been a lot of confusion or conflation maybe is the word between what are dish payments that pay directly for an expansion in the medicaid program through a population pain directly for that care as we do in kentucky and other dish programs that do not pay directly but pay indirectly through maybe through it's more of a proxy or maybe they're using it but isn't the whole issue here not not the overall label but whether your computations are trying to include people who are not in the conventional sense quote medicaid eligible and it is these people who are on the k h c p they're not people that are medicaid eligible in the overall statutory sense and you're trying to get them into the computation isn't that really th the basic issue here whatever you whatever label you give to the program i think the basic issue yonder is a little bit different in that is whether these are people that are provided medical assistance under state plan title nineteen approved state plan and they are in order to have a medicaid program it's required that you have a dish program and that has to be approved by the secretary and there's different ways you c not it is i mean that he's just stating the issue is the issues that is the issue your honor but we're not pumping it up and what we have what we have done in kentucky is we've in essence expanded our medicaid program to another population a population don't get medicaid but get casey h b right with liberation a low income people additional low income not qualify for medicaid well they could qualify for medicaid but they can't be in the under they can think they qualify for medicaid that's right under kentucky's program in the manner in which it's set up but what kentucky has done is you have categorically needy people and you have medically needy people categor needy i have to admit i'm sorry medically needy have to be included in your medicaid program categorically needy don't and you can include some of them include all of them generally speaking very roughly and i'm sure there are six categories and so forth you're talking about a group of people who maybe not be insured but they're not low income the income is not low enough to get them in the manic right they're not as low as kentucky may be at the poverty level or some other standard but they're not low enough to but the important thing about this is kentucky has expanded coverage by putting these people in their trade c p program if you're a poor state like kentucky that's a smart way to do things if you if you put them all in your if you put all the categorically needy in your medicaid program you still have to have a dish program that then adds in the pays additional compensation and you have to do it through some other means the smart thing if you're poor state like kentucky is but the medically needy in there put some of the category and we need as much money as you think you have with your thirty percent match that you have to put up put the rest in your cage c p program that way you're satisfying your dish requirement but you're also expanding care to this population and if you didn't do that you'd have to if you put a member here you still have to come up with a dish match if you're poor a state like kentucky that's how you expand the title nineteen plan to cover more people it's an expansion population that's covered now if you get into and in kentucky an important station and we make here is kentucky then pays for that care directly the hospital has to provide care to those cade c p patients they don't get a dish payment the amount of the payment is determined by the days of care that you provide to kate c p patients and and then it's more applied times a per diem amount that is supposed to be the cost of providing for that patient and that's the payment at the hospital gets if you look at the dina case and things and other cases they talk about these patients are in those other states are not paid for directly under the dish program in that state and then they get off into things like charity care and  days and i think totally get off track with that and get anybody there is a problem that is trying to be addressed here there is no question that these small hospitals take a disproportionate share of low income patients and and paying patients or drawing doll somewhere else like anybody disputes that i think the problem and what we need to understand from you is how this statutory framework works because this is a very complicated series of medicare and medicaid provisions and calculations so it seems that we are banging on about the very particular way that the statutes define the categories that we're going to be covered so how is it that you can make your group that you want to include the kentucky hospital play and fit within the definition because it seems to me that you have some problems with enabling you to get the medicaid fraction to include this category of people that your plan to file on medicaid eligible well i think your honor the way that we do it is once again go back to the plain language thirteen ninety five w when it which it talks about medical assistance and the and i don't think it's disputing now these people and link medical assistance to those enumerated individuals that you have an issue there i don't think it's proper to link medical assistance and tie it only to those enumerated individuals that that's what the medicaid statute says but that's not what the medicare statute says and i think if congress said it was just on the words are defined differently medicare medicaid well i think you have to put them in their context and i think if congress had meant to limit it just to those enumer types of individuals they would have said so in the many care statute they could have said very easily medical assistance for the catholic under the statute under the state plan approved under subchapter nineteen dish pavement dish patients are receiving medical assistance under a state plan approved under title nineteen if congress had meant to limit it they could have said medical assistance for medically and categorically needy individuals under a state plan part of the issue here too is we have a plain language in that in the medicare statute we also have the intent of congress which is to be expansive and i think they're being expansive by using that language instead of using a word like medicaid eligible or by categorically medically needy individuals and then in two thousand and five they demonstrated i think with a d or a in which they said the secretary has been including patients who are not eligible under title nineteen programs at all the eleven fifteen waiver populations but has been including individuals isn't that isn't  of the legislative parag that if they want to choose the pickle category for urban hospitals they can do it if they want to do the eleven fifteen category for life or programs i can do it and we're bound by that if yours is not one of those exceptions well i agree with your honor on that except for i think what they've demonstrated for one the only exclusion they put in the medicare statute is those patients that also are eligible under part a so they know how to exclude people when they want to exclude people and they didn't exclude the medicaid dish population that is that directly receives medical assistance here the other thing is  what they've said in the d r a was passed is they've said in essence the secretary was including people that were approved under title eleven and not title nineteen so they don't fit in the language of the statute as we give it but by golly they're right in the secretar right we're going to give the secretary discretion to include people outside of title nineteen because we do want this to be expansive because we do recognize that the purpose behind this whole this whole exercise that we're going through is to make sure that hospitals that treat disproportionate shares of energy and people receive the additional reimbursements that they're entitled to and the other questions from you let me ask one question just because the tongue tends to trip over medicare medicaid to make sure which went in your brief and i know if you have it in front of you but at page four of your brief in the your review statement it says appellants our medicare d s h the medicare acting creases the amount of their medicaid reimbursement and i read the other brief using medicare at that point because the reimbursement that we're arguing about is medicare reimbursement is it not that's right  but see that under the present law in line six or page four and that was what i stumbled over and it may just meant a fact may just be a typo i don't think it affects your legal argument but it the sixty six line of page four increases the amount of their medicaid reimbursement through the medicaid proxy that's what i'm looking at me with my you're all right well i would agree that would be a type of ok i did and less unless you come for the department of health and human services as i take at the core understand the phrase eligible for medical assistance under a story approved plan and on a state plan approved under some chapter nineteen is the technical way of referring to eligibility for providing medical care to the specified groups of individuals now one part of the medicaid plan that has to be approved is the way our state chooses to distribute medicaid dish payments so the secretary does have to confirm that the medicaid plan gets all of the federal requirements including the way they distribute dish payments but that doesn't somehow confer a state initiative that sort of cross reference there into a state plan that is the subject of the secretary's approval you're saying the secretary doesn't or maybe even can't turn these not medicaid eligible people into medicaid eligible people by by approving a plan or waiving that let me ask you about the  ninth what i call the ninth circuit case of the ninth circuit is washington med center versus sebelius third center is a dean a regional versus leavitt your adversary seem to say well they have different names of their somewhat really different  as the as our case here or are they different in meaningful ways you think they're indistinguishable from this case in any material sense and all three circuit courts that have addressed this question the third circuit also affirmed the district court decision in the cooper case step one then it becomes impossible for your client to change your mind statute that it congress has in fact recognize the need of many small community hospitals in take a hugely disproportionate share of indigent clientele and treat them  doesn't why doesn't that congressional intent inform your evaluation of the statute i think that that may have been the overarching attempt but congress chose a very particular mechanism for achieving at a tent and that particular mechanism that you know balanced all sorts of different considerations including for instance sheer administer billeted you know they're registered if history makes clear that congress thought about you know making hospitals count all low income patients and it expressly rejected that approach and decided to use a proxy a sort of rough proxy i would also remind you that i know this all gets sort of a little bit confusing but we are in the medicare statute here and the overarching purpose of the medicare statute is not so clearly sort of directed to low income patients that side into this is that the medicare statute includes a dish medicaid calculation yes so congress put it in there and that has been the question becomes who qualifies for that and our i recognize that there are very particular exceptions you're opposing counsel would suggest that this may be one that fits i know we have eleven fifteen we know we have pickle amendments the urban hospital the recognition of the cost in the urban centers to treat the indigent your argument is very simply that we have to look at the words of the statute and it does not cover this category he moved yes that is our argument with respect to the pickle dish i mean that's not an exception the statute sets forth just two different ways of calculating these dish payments they're not flip sides of each other they're just sort of two different ways that cover groups with slightly different sort of patient days and eligible patient days and again congress told us which patient days those were in turn and again and policy is in the congress wants to help these hospitals but not in a limitless way  choose some limit and was i really fair or put to your adversary that this is a way that the state attempts to pump up their medicare reimbursement or maybe doesn't attempt to do it but it's a side effect of by putting in this schip program they now want to argue that it pumps up their medicare reimbursement i think that's accurate and the other thing i would know is that this is a longstanding has consistently has overruled those decisions and has had the same interpretation that we're putting forth here for a quite long time long before idea you used an acronym was it r d is it regional director or what's you said something that sounds like r d you're r b i'm sorry the i don't want to interrupt my colleagues colloquy because i'm learning from it but i want to ask a question about the constitutional issue first and not really so much how to resolve it because it's very hard to for a plaintiff to win a rational basis challenge where distinction but there is such a challenge here at least made at this level and and we can either deal with it on the merits or we can deal with it on the grounds that week that it's not properly addressed and i'm a little bit i take it that your argument is is that it's not before us that is that is are and it's not before us although it's raised but the argument is it wasn't raised before the p r b and i take the cases that support that to be along the lines of four or five age of social security  and so forth which say that you have to go through a certain procedure but i always took and i know in wearing another hat i had a lot to deal with the four or five g and four or five h and so forth a little bit familiar with it but not with more recent cases that it tangled with ok we took it to be that you had to go through you had to go to the right agency and get a final decision from the agency before you could have jurisdiction in court never i didn't ever take it as you had to raise certain issues before those issues could be in court is that clearly the law because i took the cases to be cases where where you know for instance in this context you had to go to the p r b you couldn't go b they get a final decision from the p r b and now when they go to court they raise the argument that they can only win on in court and they're told well you didn't we didn't we don't have jurisdiction to hear that issue because you didn't raise it before an agency that didn't have power to decide it then i'm i'm wondering if that's a proper statement of the law are you with me i am with you i think that is how the law works in this area i'm sorry i think that is how the law works in this area in the sense that the hospitals raise this argument we're reviewing a final decision of the administrators here and the hospitals raise this argument for the first time after the record was closed in this case after the procedural rules of the board established that no new arguments are to be made if they made the argument the agency that they're addressing it could not have ruled in their favor well on that argument but even the jurisdictional provision that would sort of that we're looking at here the thirteen ninety five o f you know expressly provides what's supposed to happen if you are raising an argument that you don't think that the board is going to be able to consider  certainly cited in the briefs and it explains that it says that you have to raise to the p r be a constitutional issue that we cannot rule on it provided it explains a mechanism by which you can obtain judicial review of issues  you know four or five age or whatever the equivalent whatever the language that corporates four five four and i think you know the secretary's decision here was this was not an argument that you guys appropriately were raised at the appropriate time in our proceedings and for that reason it didn't address the question so i think even if the court concluded that for some reason that was wrong i do think that that would need to go back to the agency to allow the agency that the chaps say we don't have madison or has said with respect agencies they don't have to follow the const decide to something that it's doing violates the constitution i mean your citation on page forty seems by omission to the nuclear energy institute case it says issues not raised or weight will not be considered and then you say because the secretary has not issued a final decision on the equal protection arguments i read that as saying if the secretary why did to me can't can t agencies say we're not going to enforce something that's unconstitutional i mean solicitor general sort of did that in the gay marriage cases i mean i think i'm i'm not entirely clear on the scope of the agency's authority to ultimately resolve that issue i do know that the agency has a process by which it determines whether or not it thinks it has the authority and i think that there are also institutional reasons that even constitutional when various sorts of legal challenges that go to the p r b are you know that could be heard by a court should be filtered through the agency is to provide them with an opportunity to think about those issues as they make all of their various administrative really like they might say oh we want to interpret it to avoid a constitutional issue or something exactly what's your best case for the idea that the jurisdictional limitation in four or five age that carries over into the medical care statute is one that deals with  issue exhaustion rather than claim exhaustion in other words you kind of have exhausted all those remedies but if you haven't brought up some additional issue that leads to a reversal of what the agency issue when the when the claim for relief has been carried through all of the administrative procedures properly but a issued or an issue that would have led to a different  l page for that is a typo ok i think easy to do i was in front of a judge once on a medicaid case and he said i have to start paying attention this is going to be on this soon i'm sixty years old and i said no i'm a troll as far as  protection is concerned that was raised just briefly at the p r b level and then it was raised with the ministry who refused to address it but there is a cooper decision this administration wasn't properly i think that's what he said down it's been a it's been a while since i'm sorry that was just wrong that it wasn't raised before that yes it was and it was and it was just briefly raised but there's a cooper decision and the district court decision on this it came out a few months ago in which the court said that equal protection those courts and as i read the d n a case in the more i read it i don't know that i disagree so much with a kez it's once again it's more decided on the facts they're not really saying the interpretation of the law is wrong in the d n a but they say  that the high cap patients in ohio were not eligible for medical assistance because they weren't paid the hospitals were paid for treating those patients and then later on they say  they they say that what they talk about direct payment but i mean once again oh how might do it or differently than kentucky but in kentucky were directly paid by this title nineteen state plan with  assistance unemployment and medical assistance indigent program they were state programs and what the state did is when they ran out of money then they started tapping into the dish program but it was and if a hospital was not a dish hospital they went ahead and paid them under the general assistance and their medical and my program and so that was a different set of facts there that was were at the very most their dish program was treating patients as a proxy but we don't treat patients as a proxy these kate c p patients are not proxies but there are patients who get paid they go in they have to qualify they get a card in the old adage if it looks like a duck and walks like a duck and quacks like a duck it must be a duck they look exactly like the medicaid patients they get the exact same care the only difference is the hospital gets paid about half of what they get paid for treating the medicaid patients and congress recognizes that and then to the a c a now these kate see patients are starting to become ca patients and so the federal government instead of paying seventy percent fifty percent of the cost of treating these patients is now starting to pay one hundred percent which is in kentucky one hundred percent of seventy five percent of the cost of treating these patients and so congress recognizes that these are patients that has that effect going forward this whole argument that is when you say they come under the a c a is that going to change the argument on either side well it may move this issue eventually though that's not clear at this point in time your honor because i mean the story yeah yeah historically doesn't change the argument other than the evidence once again congress is intent we want to take care of these these these hospitals and every hospital in kentucky is a dish hospital except for closer shriners hospital that doesn't take medicaid money and you get hospitals out in the state and kentucky seventy percent of the reimbursements are government reimbursements so if you're dependent on medicaid or medicare for reimbursements you are in trouble and so i would agree i mean this is not a deliberate attempt to pump up medicare reimbursements but it is a side effect and it's a side effect that congress has condoned that congress congress intended and once again with the