here but i want to start out with the chronology and you know what we think are issues of applying university of washington in this case given the history in phoenix memorial and  that was what i say as a general rule a panel not sitting on bank may not overturn circuit court precedent and the precedent involved in that case was an interpretation of the statute and one panel decided to stan the parties argue that the panel's interpretation of the statute should be disregarded in light of intervening precedents in other cases and this court said that's that's not the way we do business here and i think that's a big part of what we want to say today in the legacy emanuel case this is a really complicated area so i'm going to i'm going to try to simplify it to the extent that that's possible of that's a chore this court first dealt with these issues in legacy emanuel and that was a case where the government which has never been particularly has spent both to disproportionate share hospitals and adjustments said we don't care if the person is eligible for medicaid we look at whether the days are paid we look at whether the there's money going with the days and this court said no in legacy emanuel somebody is eligible for medicaid you have to count the day whether or not the days are paid we then move on to portland advantaged and this court was faced with the prospect of individuals who at that time were in an eleven fifteen waiver project and their services their inpatient services were covered as as under title nineteen but the individuals weren't eligible and my former colleagues from the from the government argued that that doesn't cut it the days have to the people have to be medically needy they have to be categorically needy and that is the scope of the statute and if somebody doesn't satisfy those enumerated criteria then you can't count the days and this court said no the principle that i'm i discern from the cases is that you either have to be eligible and covered or you have to be the beneficiary of one of these secretarial approvals under what is section fifteen eleven fifteen eleven fifteen and if you don't fall into those two categories then you're not covered so can you help me yeah because something with that issue or because in because i think that's what the case well in portland adventist and again this is there's a lot of fracture pieces here but it's important to venice a involved a period of time before eleven fifteen days were covered in the manner that you said and this court said we don't really care secretary whether you've pronounced these days covered because as far as the ninth circuit is concerned when these individuals are funded under a state plan they are covered they're receiving medical systems under a state plan phoenix memorial then went on said crisper terms i think than portland adventist met you know we hold that it's clear and unambiguous that if you were funded under title nineteen that is deemed to be medical assistance and the reason the secretary decided in two thousand to cover eleven fifteen waiver per individuals going forward was because they were going to be regarded as funded and it was the funding that caused the inclusion of that eleven feet is that is that the funding or the eligibility sought algebra let me ask the source of the question so i thought that the real problem here that the government was barking at was that a state like washington which has a big heart and it is has been very generous to low income patients who need medical care but are nonetheless above the cut off line for eligibility for medicare medicaid basically the state tried to an act health care coverage as part of the safety net for the citizens but that the that the feds are balking at that because the secretary of health and human services doesn't get a say in who's the state determines to be eligible for coverage and they're not eligible under the guidelines that congress has and acted i think i've been right and it is no disrespect to  cherry it's not a matter of a court picking out a rationale and propping up the secretary's position in two thousand when the secretary decided to record it so first of all we have ninety nine sixty two it's the government's manual before the two thousand regulation and it says she a patient's charity care patients and eleven fifteen waiver patients who are not eligible for medicaid cannot be counted there's three places in that manual where all of those categories are treated as danica as indistinguishable then the secretary separate terri had a revelation in two thousand and said you know the purpose of this thing is not to be so hyper technical it's to protect the hospitals that treat low income patients and the eleven fifteen waivers are protect only look cover only low income patients once they're part of a waiver program process but the notion that medicaid dish covered individuals are not subject to secretarial approval that's i don't want to say the lie but that's the misconception i mean i do this is i understand how i think a program the state gets a block grant a sum of money from h h s to pay for medicaid patients right and and that's fine as long as the patients meet medicare medicaid eligibility requirements but what do we do with a situation which we apparently have in washington where the state decides to be more generous than congress has been with regard to setting eligibility for coverage under medicare on every state more or less i'm not sure barack zona but most states have been more generous since hundred eighty seven when a year after the medicare dish statute congress and acted the medicaid there statute and in and at that point congress added the medicaid dish provision in said doesn't the approval trigger the section fifteen eleven no no that's not that's that's that's that's a misconception there's these are basically what is it i guess i don't assume what is it that the secretary's approving because as i read your briefs yeah i think there was a concession that the secretary has not approved this class of charity care for washington state that the secretary's approval is in the record it's indigent disproportionate share hospital and i did a show and the document in the record says approval date five twenty six ninety three effective ten one ninety two that's the state plan and guess who was approved by the secretary if you flip to the next page it's five seventy one that's the ga you this program and then if you flip to the next page which is record eleven thirty six it says transmetal nine hundred ninety two twenty five approval day five twenty six ninety three effective ten one ninety two so in order for these categories to have been reimbursable to washington state they had to be packaged as part of a medicaid dish adjustment to the state plan amendment that medicaid state plan amendment is in effect of unless it's approved by the secretary so the notion that an eleven fifteen waiver which is really if you play this game on a regular basis what you know is that states use eleven fifteen and traditional medicaid almost interchangeably which is why the secretary in all the manuals before two thousand lumped all these categories together as though they were unitary so they're basically poor people who are not eligible for medicaid these two categories in washington they have maximum incomes of one hundred percent of the federal poverty level they are poor people and then the labor people i got to jump in because the only reason i showed up to hear you talk on the stand why you think we can get around our earlier decision you haven't yet addressed that it seems to me everything you're saying makes perfect sense if we were working on a blank slate but i view that decision as having decided th arguments that you want to put forward so why don't we get around that this is i think it's not a blank slate i think it's kind of a fractured slate and the reason for that is what i refer maybe a little too cleverly to is the improvident concession when this case was argued a provision of the same statute as clearly meaning under chevron one the opposite of what two prior decisions of this panel construed and so i guess what i'd say is i'm i'm not quite sure how one got to university of obvious care what you're saying today once the opinion is written if there's no reference to well i'm trying to understand how the panel could university of washington could construe the same sentence the same phrase of the same section of a statute so you do agree that there is a procedure in the ninth circuit of what we do whenever there's irreconcilable opinions right when there's an interest conflict writing and that is to know we're all for it right that's right now in  university of washington none of the judges there was no judge that ever wanted to hear this case on bonk right and it was a same issue right but that's because you know if you and i don't want to go back to the facts but let me oral argument and i don't know who the judges were because they're just you hear the voices you don't know the names but when the counsel in that case said i invite this court to apply which by the way interprets a statute as requiring eligibility not finding as a lawyer reading that who does this kind of work are most fell off my chair and so did the court because one panelist said two minutes and some odd seconds and i don't understand your position isn't it fatal because these are numerated categories if you're going to tell us to apply edina you're going to lose four minutes and some are seconds into the argument the court again said so you're telling me that we should follow it dana doesn't that for close your argument so i guess my view as to why this case came out the way it did is because somebody gave away the store and for some reason i still can't explain invited the court to apply edina which it did and having been s you really asking us to revisit the university of washington to go using this case as the platform to go on to overturn w m c when there was no petition for terminal want forever possible but it can be done but it wasn't done and it's and and now we're kind of stuck because if if the panel were to make a sou a spontaneous bank call in this case we would have to say we disagree with the reasoning of our colleagues in you w m c in the court should go and bank on this case to use it as the platform of the vehicle to overturn a case that the court didn't choose to revisit back then i i don't well i mean i've been doing this for i think the issue that creates the conflict you're not well situated to ask to be reheard based on a mistake that you invited and what i say in response to your question at home and is that not that i'm asking this this this court this court doesn't need to decide even at this juncture what's right or wrong and he needs to realize that six judges said this statute is satisfied by funding and then three judges university of washington having been invited to apply the d c circuits approach differently very differently starkly differently concluded that the statute didn't mean funding it made it meant the very thing that this circuit rejected rejected that argument in the earlier case so i mean it is it is what it is it's not the situation that i wish i had or you you know i had but that being said i don't think you sacrifice the well being of twenty six hospitals in a broader case because in some particular case there was a concession that took that stirred the court steered the court in that direction and it's interesting judge leighton who i think did a great job trying to dig into a dense case i don't agree with the outcome but i admire his analysis and efforts he said the law has evolved and were constrained by a d n a well you know since when is the ninth circuit constrained by the d c circuit but that that's what happened i don't know if i want to get into that it please the court i'm tyll miller on behalf of the acting secretary as the court's query with opposing counsel suggests university of washington controls this case the court would have to go in order to reverse the district court and if the on boat court were to reverse the district court it would create a conflict with the d c circuit and the third circuit you shouldn't do that because the university of washington decision was correct it is a complicated area but it's actually a simple case the stat means the medicare dish provision at issue here means eligible for medical assistance under title nineteen and title nineteen tells us what that means now opposing counsel has suggested that there is a conflict within this court's cases i don't think that's right i think there's a clear through line in the four precedents in this area legacy emanuel portland adventist phoenix memorial and university of washington and that's  assistance you know you're covered and i think we can thread the cases as i was asked to mr gallon by looking at the one case that said well that dealt with secretarial approval under fifteen eleven and the other case which said that you have to be eligible under either medicare or medicaid requirements and i think there's included here that if you don't meet either ventist is that the court was taking as background there that eleven fifteen patients were eligible if you look this is a quote from the portion of portland of venice that describes the situation of people in and in an expansion project in oregon it says the latter group who became eligible for services paid for with medicaid funds by reason of the secretary's waiver so the court was saying the secretary's waiver here makes you eligible and the government said but the funding comes from something other than medicaid queen issue before the court important event where does the funding come from and does that matter so eligibility has always been the touchstone in the circuit and that's correct because that's the correct way to read eligible for medical assistance under title nineteen because title nineteen funding is it's a service provided for in the state plan for which the federal government provides matching fees and and i just read to you the parts of the state plan and which the federal government provides matching fees for m i n g a you know in phoenix memorial which was the second case in which this court reiterated that funding established medical assistance under a plan the court said our case involves years prior to ninety seven these people weren't in the waiver they weren't receiving any federal funding and the difference between portland and in venice and phoenix was was their money sourced from title nine hundred paying for the days that's what we have here the third circuit by the way says it's ambiguous the ways and saying each one is clear and trumps the other go ahead so if it's not ambiguous don't we have to give the secretary chevron deference well actually this court gave chevron deference in portland to the funding rationale that's where that's what judge ludwig said before he was reversed by the panel and nazareth there's plenty of judges have looked at this including six judges on this court and said you know if it's funding as well as if it's  read patients who for such days were eligible for funded medical assistance no eligible for medical systems it all depends on what medical center to me means eligible to receive treatment that the federal government is as you're eligible for medical assistance is defined in two different ways in different parts of the statute which is part of we why this court i said said it's not one it's not the other it's both and medical system or two and one thousand or three is anything in a state plan that's paid for it's considered medical systems that's what we started out before we got to university of washington and if i may there's one point i want to make that i that i think is important and i don't want to walk out of here and having omitted this you know portland event is said we want to read this statute in a way that accomplishes congress intent because his intent is to protect hospitals treat lots of poor people and that's what drove this decision the decision in portland which the court called congress's overarching intent the supreme court recently in king vs burwell said intent is elevated in status in chevron and else can't read a statute in a way that this serves the purpose and the purpose was to protect hospitals that treat poor people for which there is a connection to medicaid and i want that sort of the hospitals ever gone through services great firms like y and to lobby congress to well change the statute in order to make clear well actually that this category of patients are covered what congress did under the affordable care act you know which you know may or may not be on life support was it the clear that anybody up to one hundred thirty eight percent of the medicaid level she should be deemed eligible for medicaid so right now today these individuals are not waiver people they are medicaid out in that sense but they've always been medicaid eligible in the funding many different things and saying it's clear and unambiguous chevron to you shouldn't read a statute in the way that undermines its fundamental and overarching purpose i went back to see what was it that drove this court to find that all day all low income days associated should be considered and i dug back and back and took another look at the legislative history and i found where the proxy came from was in the house report and if i  congress said this is the house report and it's a choice ninety nine dash two forty one nine hundred eighty five and it's page fourteen and fifteen indeed and i think this is what this court was thinking of the first time around in developing the adjustment the committee search for a proxy measure for low income the committee reviewed available information from the american hospital association and other sources and determined after extensive review that use of medicaid days as a proxy most accurately reflected the factor the committee was trying to measure the presence of low income patients the committee did not want to impose additional burdens administrative burdens on hospitals or patients therefore the committee rejected any direct measures of income and the proxy could easily be implemented in one nine hundred ninety six now additional low income individuals were added to the mix in eighty nine eighty seven a year later when congress increased the low income load by providing for medicaid  congress is talking in language of inclusion and and remediation not not let's go to the hospitals when i then flip to the next page if i may the congress goes on in the report it says because of concern that the proxy measure low income might substantially understate the presence of low income patients and some hospitals most particularly public hospitals in states where the medicaid eligibility standards are stringent this provision also includes a limit exception and that's where they also recognize state only funded days so what the secretary now wants is a world in which poor people who are funded only by the state can get you dish poor people who are funded by the feds but  categorically medically needy can be counted but poor people who are funded under a state plan who are poorer than the state funded people should be ignored based on the talismanic incantation of two words that don't exist in the statute medically necessary thank you very much it never hurts to ask for the pleasure to have you here the case just argued is submitted and we will next hear argument in the case of four of us energy limited versus one