out the categories of patients who are covered by medicaid and the types of services that will be covered by medicaid everyone here also agrees that the secretary may but need not include in this calculation the state of patients the secretary regarded as being secretary has never regarded the patients at issue as eligible for medicaid and that's really the heart of this dispute is whether in fact these patients have been regarded as being a little for medicaid health solution and whether the secretary has then there's also roman a two and on the roman at two the language speaks in terms of ranting the hospitals the hospital just as hospitals may include so that's the language we have on the books that we take as a given i think everybody agrees or should agree that this means that hospitals may include something and then the question is what's the something that they may include and what the provisions that has all day is attributable to populations eligible  under a waiver approved who aren't medicaid eligible and who also don't have a card that gives them a substitute for medicaid so that you know you're  treated as one step move from medicaid eligible but still covered under a demonstration project but as to what the hospital can get reimbursed from the state hospital in reimbursement for the care from the state that that person is not part of the population s considered the full and my answer to that question is if the demonstration project promises the government will make payment to a hospital on behalf of a particular patient then yes that patient is eligible but that's not the situation we have here there is no promise to make payments on behalf of particular patients instead what we have is a pool of money that is available to the state to be distributed to hospitals that have hi to be some money for each patient as i understand the mechanics of how the state actually operates to the carrier owner the money is not reimbursement for a patient it's reimbursement for the hospital costs and you know that is a about the history of how this regulations promulgated help understand why it freaks down this way so course in two thousand and six when it too was actually the st version of this regulation in two thousand ruminative was probably get attention but there are some demonstration projects that grant medicaid coverage for sort of limited discrete services things like and with planning things that aren't the full rights that are coverage that's traditionally available to patients and logically the way this breaks down is there are two questions here one are the patients regarded as eligible for medicaid for the purposes of this calculation and two if so how does the secretary elected because the course secretary has discretion background of this as you say is fair skin stern but some services under demonstration projects are too far disconnected from traditional medicaid and they write this regulation to address that problem but in doing so they true two lines which i think earth the government here one is that one category family planning etc is a different and this demonstration project extends to medical assistance as defined in medicaid and medicaid defines medical assistance to include inpatient service or you have people under this project getting inpatient services and then  your and then your next point as well but if you don't know their own particular patient isn't title being might not get one hundred cents or zero dollars eighty cents on the dollar it's all sort of generalized in amorphous and of that point the regs satis that the key is eligibility as opposed to whether particular items or services were covered or paid under the demonstration in a long list of those cases hospital to try to service because they're getting this medicaid money under the state plan and because the amount of money they get under the state plan can be tied to patients that are uninsured we should treat these uninsured patients as if they were eligible for medicaid and that's exactly what's happening here the same type of money the only difference is that this money is made available under the terms of a demonstration project rather than a state plan  oh so you're on the regular no one says that you are eligible for medicaid if you are eligible for in patient household services under either estate plan or demonstration by another and it gives two very specific think the point i'm trying to make you know so maybe that's what i'm not getting right in patient hospital services seems like it's an intuitive concept right it's what's covered in part is medicare it's a term which referenced in one of these definitions is in medicaid  and it's the term it's one of the key terms in this regulation in patient hospital service and this is in the context of a study statutory scheme that doesn't require is not how that rating these patients the demonstration project very clearly lays out who is eligible for medicaid under the demonstration project and it doesn't not with these patients were not included in any category of patients that is eligible for medicaid under those i'm not sure this gets you home but i understand your argument which is that to me it doesn't seem like inpatient hospital sort of is doing the work necessarily under your view of the world it's that it's eligible is doing the work because what you mean by eligible is that the patien actually cover something so that the hospital can't go after the patient anymore what that hospital has to do is go after the insurer which is medicaid or effectively medicaid under demonstration project the hospital is going after some other p money not after the individual and what you say is on their own in that one when the patient is not eligible for inpatient hospital services under a demonstration project even if they show up at the hospital and even if they are given inpatient services they're still not eligible under a demonstration project on lost the hospital can actually go after them or the cost of care and under a demonstration project you conceive of at the hospital i think i think i understand at least  treated as covered under medicaid even though they're not within the where parameters of traditional medicaid eligibility but what the demonstration is expand that field of individuals we can call that expanded population that they're covered they have a card they go in insurance except they're there the hospital can't go after them individually for the cost there then there's the other type of demonstration project where the hospital gets reimbursed for giving them care and some measure but the hospital can't go after the individual for the cost of  regulation because i think what the hospitals would say no both those categories qualify and you would say no only the one category where the individuals are actually covered qualify as that of the roman at two it speaks in terms of hospitals it gives hospitals demonstration projects and that and maybe i'm looking in the wrong place but that to me is in large measure where the rubber hits the road in this case and it's interesting the moment one speaks in terms of the patient being eligible for hospital and roma that he speaks in terms of the populations being eligible for matching payments but they're not talking they're not even speaking and that's what the same reference point because one talking about being eligible for the matching payments the other one's talking about being all jewel for the service populations as to which title nineteen matching payments are available if we look at that if we if we read it that way then i think what the district court ought and what the six circuit think and what the hospital thing is  that this population is covered because as this population had a one thousand matching payments are in fact available to the hospital under a demonstration project a hospital going out and as a consequence of providing care to be the individuals it's actually getting title nineteen inpatient public services also applies here you know the question here is whether the patient is eligible for this you know not containment and traditionally understood is coverage that's that you know but the coverage comes from the federal state government cooperate and provide the matching payments to cover your interest and so here are under construction or miss two is a patient still aren't eligible the patient isn't eligible because there's no coverage whatsoever you know the hospitals ultimately there is a school of money that ultimately pays for i post the federal and state government and that money is available to the hospitals but the money is not high to a particular patient or particular patient services and the fact that that money is why that's the case then let me talk to the governments to texel argument for one argument that there needs to be medicaid coverage meaning the trappings of traditional medicaid and nd their idea that there's a vested right meaning that they really eligible to mean and puzzlement let me explain why both those sexual arguments are wrong and then let me finish just by asking about the two cases that they cite most of these in a case and the university of washington because if you realize why those cases don't apply you understand why the government doesn't interpret th statute in the regulations correctly but let me just start off real quickly judge brinn of us and you're absolutely correct that under the st part of the statute what it says that patients are eligible for medical assistance under state plan there's re general requirements that apply there for medical assistance and edina makes this pretty clear the st requirement is that it has to have federal matching funds or the whole point of it is that there is a medicaid coverage because the federal government has agreed that the services and care that that in population receive will be specifically masked with funds from the federal government not just their federal funds and might be used but the federal government has specifically agreed to use matching funds and then the nd thing that often applies is that it's limited under the statute to eligible populations as defined in the statute now the x the nd part does but wait a nd they can also be counted if they are regarded as such because they receive benefits under demonstration project what that means is that it's allows the secretary to look at new innovation programs that do different ways of charging or delivering care to new types of populations that's the difference between under a state plan and under demonstration project so if you look through the regulations you populations that are eligible for matching payments i e they're eligible for medical assistance are those requirements met yes they are the secretary of prove the demonstration project the patients receive in patient hospital services under that project and the is five where you go down to that your or your honour's this gets to the government's two arguments the st argument is that you can read that different than what the plain text suggest because it must be eligible for medicaid coverage and if you look at experimental medicaid is medical assistance that is provided with federal matching funds but can i just cannot just be for one second there so i think everybody's on a common understanding in this respect that it's  that there are demonstration project demonstration projects that expand the field of coverage beyond what the medicaid regulations is that you would otherwise allow for but then there are two different types of demonstration projects there's one medicaid or payment but that person you know they have a medicaid card they wouldn't qualify ordinarily but the demonstration project expand the field of coverage so that they can now qualify and then there's another type of demonstration project under which we're not talking about the st type but we're talking about a hospital being able to go to the state and get payment as reimbursement for supplying care to somebody is not part of this expanded pool but the state runs out of the hospital can still get payment from the state as reimbursement from providing care to them and the issue in this case regards that nd category demonstration projects and then the question is does everybody agree to the st category demonstration projects it is something that the hospital can put in the numerator the question is whether the  category of demonstration project is something that the hospitals can put in the numerator and then that begs the question of where textually do you find a home or that it is a demonstration project and where textually the government say no those are the those types of payments are out so it's iran or let me just say this is that i agree with you there are lots of i thought demonstration projects with different ways of delivering care but i want to be careful because your hypothetical is assuming a distinction that isn't built into the statute or the regulation point so the government's idea of saying there must be medicaid coverage is to suggest that there's a distinction you're saying that there are some projects with patients that have cards and everything like that i think i understand this but i believe that actually it true that there are different types of demonstration projects that can be divided into these two categories you may be right to legally that's a distinction without a different purpose the dispatcher needs regulations but i just want to and the government think that the factual distinction is also a legal one one hundred there's lots of different demonstration projects that do different types of things and you could have a demonstration project in category one and category two but what i'm resisting is those categories are not they're just made up by the that are cited specifically here where the courts are saying no eligible under the statute does not mean entitlement patients what it means is that you're eligible to receive to be able and eligible to receive which means you're part of the population that has the federal matching funds that will pay for your care if you get that care best friend of ours in the recent one squishing back on your allegories is that in order to create those two categories have any legal meaning you have to st in the government's argument that coverage means its data looks like traditional medicaid with the card the whole point of an experimental demonstration project is to allow a hot of they experiment with different ways of providing services and for the secretary's decide when he approves the demonstration project whether that's acceptable or not which is what he did here and then the nd thing is that you don't look at individual patients you look at patient populations you don't look at vested right because that's not in the statute an operator precedence what you look at is are they eligible which is regulations were changed to make clear that it's regardless of whether particular items of services were covered under the state plan or the authorized waiver because the question is whether they're eligible to receive under the terms of the demonstration project and roman that to answers that patients they went into the hospital and they received care that care was matched by the several government and the federal government paid for a portion of their care and because of the demonstration project they were eligible there for that experimental medicaid coverage that they otherwise would not have been eligible to receive and therefore they are regarded as such under the statute you're getting this to just to be taxable they didn't receive coverage right it's just that they have received care and as to that care the hospitals the key in there was that it was just charitable care that wasn't eligible for matching payments at the federal government had agreed to pay was significant about a demonstration project is that the federal government has specifically agreed that there will be federal funds that are matching and available for these purposes so that when that patient gets the services provided and it ultimately gets paid to the hospital it is matched by federal funds for that fine patient group and for the inpatient hospital services they receive your honor if i could but i think it's really helpful now to take a look at the cases diena and university of washington cases you will note that the th circuit back has those cases because they say well that has nothing to do with demonstration project it's only about a plant why is that significant why did the th circuit say that was the reason the th circuit said that is to go back to the statute medical assistance under the statute again has two requirements in general one is there has to be federal matching funds where the federal government has agreed to pay a portion or part of this care and then to it has to be an eligible patient through what happens in the state plans that the government is relying on is that the states have taken some other pot of money in that case of medicaid it's just not matching funds for medical assistance it's just a federal pot of money and they've reallocated for charity care and what the courts say in both of those cases is one that doesn't count because the federal government has an agreed to match for the medical assistance actually pay for those services and number two is that the eligible patient groups in those cases are limited by the numerators patient groups in the statute those are the categorically and medically needed so you can't expand the patient group under a state plan and that's why they lose the whole point is that was not that in most cases because not race is but the states could have won those cases if instead of expanding it themselves unilaterally under state passed plan if they'd gone to the secretary and the secretary had a a demonstration project where waive the requirements of limiting it to those eligible patient groups and expanded the population which is exactly what happened here your honour's famous i'm almost at the end here let me just close with the following thoughts because i think the court understands the different arguments every judge that has considered this issue has ruled against the government because the plain text of the regulation reads the way that we suggest and what the government is trying to do with after the fact bring in new requirements that the regulations and statutes simply don't have accepting the government's position means that you have to read eligible not to mean eligible as it's been interpreted by courts than in the one thousand nine hundred and ninety s but instead to mean in title that there's a vested right that's not in the statute the statute distinguishes between entitlement and eligibility and every one of those cases we decide on page twenty two dollars of our brief and the number of cases they cite go against the government's position and finally the government suggesting that this is just about traditional met medicaid and patien eligible for traditional medicaid completely ignores the whole point of an experimental demonstration project the whole idea that the secretary is allowed to waive requirements in order for states to bring in new populations of patients and treat them and regard them as if they would be eligible for medicaid and for all those reasons the district court's well reasoned decision here is correct and we would urge this court to affirm thank you mr parrish  eligible for medical assistance in burma again if you have culture this is the basic stuff that of the court system to be eligible for medical assistance there has to be a promise by the federal government to pay for particular specified services on behalf of a medical assistance because you know even though the hospital refused more money for treating uninsured uninsured or underinsured haitian that money was available to hospitals specifically because those uninsured and under insured patients were not eligible of the services for individuals and here you know we don't have a promise by the federal government to pay for part or all of a certain specified services there's a pool of money just tribute it's all health care providers in state and the state has chosen to level but on a temporary basis we want to expand out and cover people who are above that income level and so that would be expanded coverage of those those patients who are included in the demonstration project above a certain level would certainly be eligible