[00:00:02] Speaker 02:
Case number 15-5310, Central United Life Insurance Co.

[00:00:07] Speaker 02:
at Elle, versus Sylvia Matthews-Burrow and her official capacity as Secretary of the U.S.

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Department of Health and Human Services at Elle Appellants.

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Mr. Tenney for the Appellants, Mr. Sorensen for the Appellees.

[00:00:19] Speaker 01:
May it please the court.

[00:00:21] Speaker 01:
The regulation at issue here prevents fixed indemnity products from being sold as an alternative to major medical coverage without providing protection against high out-of-pocket medical costs on which Congress required that all major medical plans provide.

[00:00:39] Speaker 01:
As the rulemaking record reveals,

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Many consumers don't realize if they had if they were to have products like this They don't realize the inadequacy of their coverage until they become sick And then they're unable to pay their high medical expenses because they're they're fixed an enemy plan or other inadequate coverage Doesn't provide that sort of protection.

[00:00:58] Speaker 01:
Is there any empirical data on that?

[00:01:01] Speaker 01:
I'm sorry empirical data on People being confused about this um

[00:01:08] Speaker 01:
There weren't data in the form of statistics in the record.

[00:01:10] Speaker 01:
There were a number of consumer groups that submitted comments that said that this was a problem.

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And they didn't have any data either.

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I don't believe there was data submitted in the record, neither was there data submitted the other way.

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The rulemaking record that the agency was relying on relied on basically comments from several different groups.

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One was from groups like the American Heart Association, Consumers Union, and these are cited in our briefing, that discuss the problems that consumers have when they don't have adequate

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coverage and the possibility of confusion.

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And then the second set of materials that was in the administrative records was from, upon which the agency relied came from the insurance industry, which discussed how fixed indemnity products were typically sold as a supplemental product.

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The American Insurance Association, for example, said that all of its members sold the product as a supplemental product.

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And so the agency based on

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The record that it had before it concluded that it was appropriate to ensure, and this is also consistent with the statutory scheme, that the fixed indemnity products just don't amount to an adequate alternative for

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for major medical coverage.

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And it's clear from plaintiff submissions in this case, although plaintiffs didn't participate in the rulemaking.

[00:02:37] Speaker 03:
Well, they may not be the same as the minimum insurance requirements, but it may be good for people who aren't obligated to obtain minimum essential coverage.

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And what interest does the government have in

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telling those people you can't have this fixed indemnity product until you get the minimum essential coverage that you're not obligated to get.

[00:03:01] Speaker 01:
This isn't a question of obligating people to get minimum essential coverage.

[00:03:05] Speaker 03:
This is a question about what... Well, you can't buy this other product unless you also have that.

[00:03:09] Speaker 01:
No, I understand that, but your question related to the government's interest.

[00:03:12] Speaker 01:
Congress has regulated the insurance products that can be sold and has

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and has a detailed scheme that says if you're selling major medical coverage it has to have certain characteristics including cost sharing limits and other things that we've discussed in our briefing.

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And so the question before the agency is whether Congress would have

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whether it's necessary and appropriate in carrying out those provisions to allow an entity, such as the plaintiffs in this case, to sell a product, to market it or to sell it to people and say, this can be your only coverage against major medical expenses, which is really what they're saying this should be.

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but that it doesn't have to satisfy any of those requirements.

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And Congress has made clear that if you're selling something as medical insurance, as medical coverage, that it's supposed to have these characteristics.

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So it's really a consumer protection measure.

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It's not a mechanism to require people to purchase insurance if they don't want to purchase insurance that is either addressed by different provisions of the statute or not at all.

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It's a question of what products can be sold.

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Do you have the same rule for the

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Because this is the individual insurance market.

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Do you apply this same rule for the group health insurance market?

[00:04:22] Speaker 01:
No, this rule applies only to the individual market.

[00:04:24] Speaker 03:
Why wouldn't you have that same problem for the group market then?

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Would you not have the same concerns or is it, you know, people, my understanding was people may also want this

[00:04:33] Speaker 03:
to cover lost wages while they are sick or to cover deductibles or other expenses they're having to lay out even with an insurance plan.

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And I assume that's why it gets marketed to group health insurance as well as individual.

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I just don't understand why it would be different.

[00:04:48] Speaker 01:
I mean, just the group, it's really a function of the practical answer to your question is that the regulation for the group market and the regulations for the individual market are done differently.

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There are different agencies involved.

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And the rule here was an HHS rule that just applied only to the individual market.

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And the agency didn't, in this rulemaking, take up whether this should also be done for the group market.

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But in answer to the question of why people would want the coverage, that's exactly right.

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The understanding is that people do want this for lost wages.

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They do want this for deductibles and other things.

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And that's why it is available and sold.

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And as the American Insurance Association pointed out in AFLAC as well, which is a major provider, it's sold as supplemental coverage.

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And so people can buy it.

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And they can buy it in the individual or group market.

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And it supplements their insurance.

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And if you look at the brochures that are in the record here, which weren't in the administrative record, but give you an indication of the argument the plaintiffs are making,

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It's clear that what they're doing is they're saying, this is going to help you pay for your health care.

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They say that explicitly on page 126 of the joint appendix in their brochure.

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So this is an effort not to sell it in the manner that Your Honor described to allow people to replace lost wages, to pay deductibles, to have other expenses.

[00:06:04] Speaker 01:
There were comments in the rulemaking record suggesting that it could be used for transportation.

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It could be used for child care if you have to go to the doctor.

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And that would all make sense as supplemental insurance.

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But if this is the only way you're going to pay

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if you are getting sick, it just isn't suitable for that.

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Aren't people entitled to make that choice?

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Well, Congress made a determination when it enacted a broad series of regulatory provisions about what insurance products needed to have.

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If you say that Congress made a determination, but Congress enacted the Public Health Service Act, correct?

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That's right.

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And that gives two requirements for when you can sell this product.

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And if the seller has met those two requirements, then how can the agency impose a third requirement?

[00:07:03] Speaker 01:
Well, I mean, that's not even the argument the plaintiffs are making here, because they're not challenging the disclosure requirement that was required by the very regulation that's at issue here.

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The point is, if you look at what Congress was doing, it had a category of accepted benefits.

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And those are all things that would be either

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supplemental to or just entirely separate from regular health insurance, liability insurance, dental plans, vision plans, those sorts of things.

[00:07:28] Speaker 01:
And fixed indemnity insurance and the rulemaking record that I discussed earlier and just the nature of the plan suggests that it was thought of as in the same category.

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This is something you would get as a supplement.

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And of course, Congress wouldn't require or wouldn't expect

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that if you're buying a supplement to your health insurance plan that it has to have all of the characteristics that are required of major medical insurance.

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And if you look at the actual requirements, what they talk about is the relationship between

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the fixed indemnity product and your health insurance.

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They talk about that it can't be coordinated, it has to be independent, and it needs to be a separate policy of insurance.

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So as the agency pointed out in the rulemaking, Congress was presuming that people had other coverage and that this was just a product that was going to be sold as a supplement.

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And so the question is whether it was necessary and appropriate in carrying out all of these provisions, both making sure that fixed indemnity was playing the function that Congress contemplated for it, and also making sure that the requirements for insurance were being complied with, whether it was necessary and appropriate for the agency to take this step.

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And we submit that that was well within the agency's discretion here.

[00:08:43] Speaker 03:
Just to be clear, is your, because I

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I thought your argument below was that this was interpretive as to either independent and uncoordinated or what it means to be fixed indemnity, and in particular, as I read the Federal Register, the expansion of fixed, the definition of fixed indemnity insurance to include service products rather than per term products.

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And it seemed, at least in the Federal Register, that it was that,

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new additional interpretation of what constitutes fixed indemnity insurance, extending it out to per-service products, that was why you felt you needed this limitation on who could buy it and you needed the notice provision.

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Those two came together.

[00:09:28] Speaker 03:
But now here it sounds like you're not making that interpretive argument, you're just making this interstitial argument.

[00:09:35] Speaker 01:
I mean, we're emphasizing the interstitial argument.

[00:09:37] Speaker 01:
We are still relying on, as I just discussed a moment ago, the language of the statute, both in terms of the non-coordinated provision that I discussed.

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And in terms of just the overall statutory structure of accepted benefits.

[00:09:54] Speaker 01:
In response to you.

[00:09:55] Speaker 03:
So are you making both arguments?

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Because the argument before, as you were making it in response to Judge Brown's question, sounded to me like an interstitial one, that there's this gap that's been, Congress implicitly assumed this thing was here, a gap has been created.

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We are filling it in, as opposed to this is part and parcel of our new definition of fixed indemnity insurance to include per-service products.

[00:10:19] Speaker 01:
We are relying here, as we did in the district court, on the grant of regulatory authority to make regulations that are necessary and appropriate to carry out the statute.

[00:10:34] Speaker 01:
And so I'm not sure that there is a strict dichotomy between interpretive and interstitial, and that was discussed to some degree by the Supreme Court in the Long Island carry-home case.

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But I think that it's fair to say

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that our submission here is that this is within the agency's regulatory authority under that provision.

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In answer to your question about the definition of fixed indemnity in terms of per service and per period, it's true that

[00:11:04] Speaker 01:
If you understand fixed indemnity products to include, you know, as that regulatory definition currently exists, then the need for, the need to prevent them being sold as primary insurance goes up.

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Now, obviously that distinction or that particular regulatory change hasn't been challenged here.

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That's motivated in some, the need for to expand it

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both reflects the agency thought what was actually in the market and what state regulators thought the insurance was appropriately used for, and also reflects a difficulty if you're going to say it just has to be per period, then there actually becomes some difficult line drawing questions because if you say, all right, it's going to be $100 if you go to the hospital and $50 if you go to the doctor, is that per period?

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And so the agency concluded that, no, you could actually split it up in a per service way.

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And it's true that the more you break it out, the more critical it becomes that it not turn into a mechanism to provide something that is sold as major medical insurance, but without any of the protections that Congress deemed appropriate for such coverage.

[00:12:20] Speaker 01:
All right.

[00:12:21] Speaker 01:
Thank you.

[00:12:28] Speaker 00:
Thank you, Your Honor.

[00:12:30] Speaker 00:
There is nothing in the statute, there is nothing in the record that lends any support to the fixed indemnity rule, to the prohibition against the sale of fixed indemnity plans that are allowed under the statute

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on the basis that the individual purchasing does not possess minimum essential coverage.

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And I will start off where counsel for the government started out, even though it is kind of a tertiary issue.

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And that is the value of these policies.

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Judge Ginsburg, Judge Millett, I believe you both mentioned Judge Millett especially.

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that these are valuable policies to a number of individuals, particularly those who cannot afford minimum essential coverage under the Affordable Care Act and are not eligible for subsidies, the so-called Medicaid gap, as it's been referred to.

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These individuals and others who have a philosophical objection to purchasing minimum essential coverage are not required to do so, and this may serve as an alternative.

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And the benefits of these programs have been recognized not only in the comments that were submitted during the rulemaking process,

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by states, by the National Association of Insurance Commissioners.

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They've also been recognized in the amicus brief that was submitted in this case by states, again, who represent entire populations.

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It was more importantly recognized by Congress.

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Congress established a particular exemption for fixed indemnity plans within the context of the Public Health Services Act.

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and they qualified those as accepted benefits for the very reason that they do provide exceptional value for certain individuals.

[00:14:03] Speaker 03:
Am I right that there was prior to this amendment there had been debate about whether fixed indemnity plans included per service or were just

[00:14:14] Speaker 03:
I guess, term, only included per term plans consistent with an IRS statute.

[00:14:20] Speaker 00:
Am I right?

[00:14:21] Speaker 00:
Yes, there was some debate.

[00:14:22] Speaker 00:
The debate did not actually extend prior to this case and this rulemaking, I should say, into the individual sphere.

[00:14:29] Speaker 00:
The first time this really arose was in an FAQ in 2013, in which for the first time to our knowledge,

[00:14:34] Speaker 00:
HHS instructed that, in its view, these policies only may cover per duration service.

[00:14:41] Speaker 00:
But that was in the context of the group market alone.

[00:14:44] Speaker 00:
It didn't extend to the individual market, and there was no reason to expect that.

[00:14:47] Speaker 03:
But then there certainly was at least some ambiguity about what fixed indemnity rule

[00:14:51] Speaker 03:
meant, and then my understanding is that as a package deal here, they said fine, we've looked at this whole issue and fine, and we will construe fix indemnity to include per service.

[00:15:03] Speaker 03:
We hear you on that, but once you start selling things, here's for your prescription, here's for the procedure the doctor performed, then it starts looking an awful lot more like insurance and people will be confused.

[00:15:20] Speaker 03:
the two come together for them and then this confusion problem arises.

[00:15:24] Speaker 00:
I don't believe so, Your Honor.

[00:15:25] Speaker 00:
We would argue that there is no dis... I mean that the fixed indemnity policy was defined actually in the proposed regulation of HHS in this particular case as a service that... as a plan that provides a set amount of cash, money, whatever compensation for a particular procedure.

[00:15:41] Speaker 00:
It wasn't per service or per duration.

[00:15:43] Speaker 03:
Well, they were explicit in the Federal Register that there was this debate out there and they were extending it to it.

[00:15:48] Speaker 00:
They certainly said that this is what they were going to do, but that was the first time it was raised.

[00:15:52] Speaker 00:
And this is...

[00:15:52] Speaker 00:
The point is actually kind of a moot one, because whether it's per service or per duration, that does not answer the fundamental question here, which is, however you interpret fixed indemnity plan, the requirement they have imposed here is not an interpretation of fixed indemnity plan, rather it is a restriction, a new condition on the definition of accepted benefit under the statute, under the Public Health Services Administrative Act.

[00:16:15] Speaker 03:
Is the notice requirement a new condition as well?

[00:16:19] Speaker 03:
I'm sorry?

[00:16:19] Speaker 03:
Is the notice requirement also a forbidden?

[00:16:22] Speaker 00:
Condition it could certainly be viewed that way.

[00:16:25] Speaker 00:
It has been what is it?

[00:16:26] Speaker 03:
Is it or is it?

[00:16:27] Speaker 03:
What is your position?

[00:16:28] Speaker 00:
I would say that it is to be quite I mean, okay, so that has to go to Let's not be challenged.

[00:16:32] Speaker 00:
Is it it is not and the reason it has not been challenged is not a concession on our part It was simply that we already provided this information in the brochures We had no reason to challenge this notice because we already inserted the states require something comparable

[00:16:45] Speaker 00:
They do not.

[00:16:45] Speaker 00:
We did this on our own volition.

[00:16:47] Speaker 00:
Certain states did.

[00:16:48] Speaker 00:
Not all didn't.

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But our brochures did so.

[00:16:50] Speaker 00:
And in fact, the agents, as the declarations show, just provided this information because we didn't want to have any lack of clarity in our interactions with consumers.

[00:16:58] Speaker 00:
We didn't want them to have confusion over whether the policy they were purchasing was major medical or fixed indemnity policy.

[00:17:05] Speaker 00:
We told them up front, this is not major medical.

[00:17:07] Speaker 00:
This is a different type of policy.

[00:17:09] Speaker 00:
And that is why we did it.

[00:17:10] Speaker 00:
And that's why we didn't challenge the notice provision.

[00:17:13] Speaker 03:
If there had been, if they actually had a substantial record of enormous confusion and harm to consumers, if they came, imagine an agent comes forward with a massive record like that, is there anything they could do given the statutory provision or is it your position that no, they could not even demand notice?

[00:17:35] Speaker 00:
I think that's a separate question.

[00:17:37] Speaker 00:
I'm willing to concede on the margins there may be some allowance in that circumstance for a notice requirement or to impose certain restrictions, but that would have to be premised on the basis of the statute.

[00:17:48] Speaker 03:
That's what I'm trying to ask.

[00:17:49] Speaker 03:
Is this just a plain statutory language that no matter what the record of

[00:17:55] Speaker 03:
harm the agency comes forward with, the statute says what the conditions are, and that's what the conditions are, and if you've got a problem, take it to Congress.

[00:18:03] Speaker 03:
Or is your position that, look, since there's ambiguity in room around the edges here, the record here does not support the existence of a problem?

[00:18:13] Speaker 03:
And so without evidence of a real problem, the agency doesn't have the authority to add to the list of conditions.

[00:18:21] Speaker 00:
It would have to take two steps.

[00:18:22] Speaker 00:
One, there is not evidence, but if there was, they would have to identify a particular statutory provision that is either ambiguous or grants them the authority to adopt this particular requirement.

[00:18:33] Speaker 03:
There's nothing ambiguous about this provision that would allow that.

[00:18:36] Speaker 00:
Well, they haven't even identified a provision that they argue is ambiguous.

[00:18:40] Speaker 00:
If you go back to the Federal Register, both the proposed regulation and the final rule, they do not.

[00:18:44] Speaker 03:
Do you think there's anything here that would allow, anything ambiguous enough to allow it on that record?

[00:18:49] Speaker 03:
Do you think there's anything ambiguous in the language that would allow the addition of a notice requirement to stop confusion if they had the record of confusion?

[00:18:59] Speaker 00:
I think if you wanted to make an argument regarding independent and non-coordinated, perhaps you could make an argument

[00:19:04] Speaker 00:
that in order to establish independent and uncoordinated to be offered by, and again that is an offered by requirement under the statute, then you could possibly say that in terms of proving that it's offered by, non-coordinated, independent about the coverage, you have to provide notice to the individual who is purchasing, the insurer has to say, this is not major medical, it's not coordinated with that, is it independent from that?

[00:19:25] Speaker 00:
That is something you might be able to get.

[00:19:27] Speaker 00:
But again, that is not what occurred in this case.

[00:19:30] Speaker 00:
And this is getting down to the comment that Judge Brown indicated, the question you had, which is there are two requirements here.

[00:19:36] Speaker 00:
The statute is crystal clear.

[00:19:38] Speaker 00:
If you have a fixed indemnity policy, then if that qualifies as an accepted benefit if two conditions are met.

[00:19:46] Speaker 00:
One, it is offered as an independent non-coordinated benefit.

[00:19:50] Speaker 00:
Two, it is sold under a separate certificate or policy of insurance.

[00:19:55] Speaker 00:
Those are the only two conditions that are set forth in the statute.

[00:19:58] Speaker 00:
The statute does not say anything about minimum essential coverage for purchasing it, and it does not in any way vest the agency with authority to adopt additional regulations, much less anything with respect to minimum essential coverage.

[00:20:10] Speaker 00:
And that really should be the start and the end of the analysis in this case, because the very essence, the prerequisite of any administrative rulemaking is a delegation of authority by Congress in a specific statutory provision, in specific statutory language that can be identified in the agency rulemaking.

[00:20:30] Speaker 00:
Nothing in the rulemaking, nothing in the briefs in this case, nothing in the argument today identifies a specific provision, specific language of the statute.

[00:20:39] Speaker 03:
Why isn't this like Long Island Home and Care, where you had a list and the agency said, yes, but there's a problem that's now developed.

[00:20:50] Speaker 03:
given the evolution of the home service care industry.

[00:20:54] Speaker 03:
And we need to add a third condition, and that is that you not be implied by a third party.

[00:21:00] Speaker 03:
How is that different?

[00:21:02] Speaker 00:
And that is not exactly what happened, Your Honor, if I may disagree a little bit with how you characterized it.

[00:21:07] Speaker 00:
What happened in Long Island, and in fact what happened in Home Care Association, which is the subsequent DC Circuit case, is that you had ambiguous language in the statute.

[00:21:17] Speaker 00:
That is, the scope of the exemption that applied to those individuals employed in domestic service employment.

[00:21:23] Speaker 00:
The Supreme Court found, and this court held thereafter, that that language was not clear as to whom it applied, whether it applied not only to individuals who were employed by the homeowners themselves, but also by third-party agencies.

[00:21:36] Speaker 00:
And given that ambiguity, it was a classic Chevron situation in which you had an agency looking at ambiguous language and they were able to take their expertise and apply it within the boundaries set by the delegation of congressional authority and decide how it should apply.

[00:21:51] Speaker 00:
And that could be based, and that could differ, based on how the agency viewed the problem as developing.

[00:21:57] Speaker 00:
That is not what you have in this case.

[00:21:58] Speaker 00:
You have in fact the precise opposite.

[00:22:01] Speaker 00:
There is no ambiguous language that has been cited in the Public Health Services Act or in the Affordable Care Act that would give HHS authority, any delegated authority, to make a regulation of this sort.

[00:22:13] Speaker 00:
So whatever problem they see developing, and again, they have no evidence of consumer confusion or anything of that nature, but even if they did, the statute is clear.

[00:22:21] Speaker 00:
There are two conditions.

[00:22:23] Speaker 00:
If those two conditions are met, not only does the statute not give authority to HHS, if I may continue, not give authority to HHS to promulgate a regulation of this sort.

[00:22:33] Speaker 00:
In fact, if you look at 42 USC 300 GG 21 C2 as well as 63 B, both of those are the accepted benefits analyses.

[00:22:47] Speaker 00:
They incorporate the provision referring to fixed indemnity policies, and they say if those two conditions are met,

[00:22:53] Speaker 00:
the statute shall not apply.

[00:22:55] Speaker 00:
In other words, Congress has declared when those two conditions are met for a fixed indemnity policy, there shall be no federal regulation.

[00:23:03] Speaker 00:
There cannot be a clearer expression of congressional intent that these policies shall be allowed to continue without regulation, without a requirement of minimum essential coverage, which, by the way, didn't even exist when these particular provisions were enacted.

[00:23:18] Speaker 00:
And there is no way to find that there is any basis for it, even if there was some premise in the administrative record for that.

[00:23:26] Speaker 00:
And if I may, just close with one final comment to the extent of it.

[00:23:31] Speaker 00:
And all you've heard by counsel for the government is arguments regarding legislative purpose.

[00:23:37] Speaker 00:
the catch-all provision, the agency rulemaking, the general rulemaking clause, those clauses and purpose arguments have been rejected case after case, including the ones we cite on page 21 of our brief, as insufficient to justify a regulation.

[00:23:52] Speaker 00:
You have to have a specific provision that has not been cited here.

[00:23:56] Speaker 00:
It wasn't mentioned in the agency rulemaking.

[00:23:58] Speaker 00:
Even if it was, you couldn't affirm on that basis because it does not support the regulation in this case.

[00:24:06] Speaker 04:
Thank you.

[00:24:08] Speaker 04:
I know Mr. Tinney had no time left.

[00:24:13] Speaker 04:
You have one minute if you need it.

[00:24:15] Speaker 01:
Thank you Your Honor.

[00:24:20] Speaker 01:
Council alluded to the fact that consumers might want this particular type of coverage.

[00:24:25] Speaker 01:
It's noteworthy that no consumer in the rulemaking proceeding came forward and said that they wanted this coverage as their only medical coverage, and no consumer has participated in this lawsuit and said that.

[00:24:36] Speaker 01:
And as we pointed out in our brief and HHS pointed out in the rulemaking,

[00:24:39] Speaker 01:
consumers who can't afford more comprehensive plans can get what's known as catastrophic coverage, which would include free preventive care and a high deductible plan that would cover other types of expenses.

[00:24:51] Speaker 01:
And that's the type of major medical coverage that Congress wanted people who were having trouble affording more expensive plans to get.

[00:24:57] Speaker 01:
In terms of a need to tether it to the statutory language, as counsel recognized, the statute does talk about independent and non-coordinated.

[00:25:06] Speaker 01:
Council seemed to acknowledge that that might

[00:25:08] Speaker 01:
in his view be an opportunity for the agency to make sure that this is really being offered as an independent and non-coordinated benefit.

[00:25:17] Speaker 01:
He said that would be enough for a warning, but obviously that's what's going on here.

[00:25:20] Speaker 01:
Why wouldn't a notice be sufficient?

[00:25:22] Speaker 03:
Why didn't the agency have an obligation to try the notice first?

[00:25:28] Speaker 01:
There was comments in the rulemaking, and the agency relied on them, about low levels of health literacy.

[00:25:35] Speaker 01:
Family USAs submitted a comment that if people don't have experience with healthcare costs, it would be difficult for people to follow and understand exactly what was gonna happen if they had major medical expenses, AARP.

[00:25:47] Speaker 03:
Some people are now supposed to make some sort of attestation about their minimal essential coverage.

[00:25:51] Speaker 03:
That seems to me to require more.

[00:25:54] Speaker 03:
insurance literacy than just to read a notice and say, hey, you may have a tax payment if you don't get insurance too.

[00:26:03] Speaker 01:
No, because the attestation, and obviously the seller of the insurance can make this clear.

[00:26:08] Speaker 01:
The attestation is just saying, yes, I have health insurance.

[00:26:11] Speaker 01:
They have to make the same attestation on their tax forms.

[00:26:13] Speaker 01:
This isn't a question of people making

[00:26:16] Speaker 01:
parsing the notice, figuring out exactly what they are and aren't getting, and understanding how it's gonna be affected if they get really sick.

[00:26:22] Speaker 01:
This is a question of people making factual statements about what insurance coverage they do or don't have.

[00:26:27] Speaker 03:
That's a very different matter.

[00:26:28] Speaker 03:
I just have one other quick question.

[00:26:32] Speaker 03:
If this particular provision were to be struck down, would the per service versus per term aspect of the regulation also have to go down, since they came together as a package in the Federal Register?

[00:26:44] Speaker 01:
I mean, the district court enjoined just the operation of the one provision we've been talking about here today.

[00:26:52] Speaker 01:
The question of what the agency would do in response if that injunction were upheld is something the agency would have to determine.

[00:26:59] Speaker 01:
Thank you, Your Honor.

[00:27:02] Speaker 04:
Thank you.

[00:27:03] Speaker 04:
The case will be submitted.