[00:00:00] Speaker 01: Case number 22-5214. [00:00:03] Speaker 01: Advocate Christ Medical Center, also known as Advocate Christian Hospital et al. [00:00:08] Speaker 01: Appellants, versus Xavier Becerra, Secretary, United States Department of Health and Human Services. [00:00:15] Speaker 01: Mr. Miller for the appellants, Ms. [00:00:17] Speaker 01: Marcus for the appellate. [00:00:19] Speaker 03: Mr. Miller, good morning. [00:00:24] Speaker 06: May we begin? [00:00:26] Speaker 06: May it please the court, Daniel Miller, appearing on behalf of all appellants. [00:00:30] Speaker 06: This case presents the question of what it means to be entitled to supplemental security income benefits under the disproportionate share provisions of the Medicare Act. [00:00:39] Speaker 06: In 2010 rulemaking, the secretary announced a policy on this very issue. [00:00:44] Speaker 06: And in that 2010 rulemaking, the secretary declared a distinction between a person who is eligible, an SSI eligible individual under Title 16. [00:00:55] Speaker 06: That in itself is not enough to be eligible to be included in the Medicare Act [00:01:00] Speaker 06: the Medicare fraction of the DISH provisions, the Secretary said instead that in addition to being an eligible person, the person has to be entitled to receive a monthly payment from the SSI program in order to be counted. [00:01:14] Speaker 06: In our appeal, we contend that the Secretary's construction is too narrow. [00:01:19] Speaker 06: the construction the secretary has utilized and that remains in place to this day. [00:01:24] Speaker 06: This regards the congressional intent to include all SSI enrollees in the SSI portion of the Medicare fraction. [00:01:32] Speaker 06: And it's also inconsistent with the decision of the Supreme Court and the Empire case decided last year that concerned a corollary provision, which is entitlement to Part A benefits under the Medicare Act. [00:01:43] Speaker 05: The statute by its terms [00:01:47] Speaker 05: defines the entitlement month to month. [00:01:51] Speaker 06: The statute does indeed define entitlement to monthly payment under 1382C. [00:01:59] Speaker 05: And your theory is that entitlement should be defined by reference to enrollment, which is a 24-month period, which is just the unit [00:02:11] Speaker 05: by which the agency processes, you know, is the application still on file? [00:02:17] Speaker 06: I don't think that's the status. [00:02:20] Speaker 06: We believe it should be maintained. [00:02:22] Speaker 06: It should be counted by who is an eligible individual under Title 16, which is defined in 1382A. [00:02:28] Speaker 06: I'm not sure what the 24-month enrollment is that you're referring to. [00:02:33] Speaker 06: A person can become eligible for Medicare. [00:02:36] Speaker 05: Your theory is that [00:02:39] Speaker 05: maybe I misunderstood it, but I thought your theory was anyone who's enrolled. [00:02:43] Speaker 05: It has filled out the application gets the benefit and then [00:02:52] Speaker 05: income goes up so that person doesn't get the benefit in the later month but is still enrolled. [00:02:59] Speaker 06: That's right. [00:02:59] Speaker 06: They are still eligible. [00:03:01] Speaker 06: Person has to apply for SSI title 16 supplemental security income benefits. [00:03:07] Speaker 05: But that's the person I'm saying is not eligible under the statute for that month. [00:03:13] Speaker 06: I would say that they do remain eligible, and this is why under 1382A, Judge, the person is declared by Congress to be an eligible individual for purposes of Title 16. [00:03:24] Speaker 05: And in C1, the statute says eligible for the month based on the income determination, which varies month to month. [00:03:32] Speaker 06: It says that they are then eligible for the monthly payment. [00:03:35] Speaker 06: based upon an income determination that is actually not based upon the person's circumstances in that month, but on a prior month, either one month or two months. [00:03:45] Speaker 06: Okay, but it's month to month. [00:03:46] Speaker 06: It is month to month, and it can alter in some circumstances. [00:03:50] Speaker 06: But the important point is that Congress established who is an eligible individual, and a person does not lose their eligibility under Title 16 because they don't get a monthly payment. [00:04:02] Speaker 06: They remain a participant in the program. [00:04:05] Speaker 05: So you want us to read entitlement to be eligibility and eligibility to be the statement in 1382A without reference to the month-to-month clarification in 1382C1. [00:04:23] Speaker 05: Right. [00:04:23] Speaker 06: 1382C encompasses a variety of circumstances in which a person may qualify for a payment or may not qualify for a payment depending upon individual situations. [00:04:35] Speaker 06: but it does not undermine the person's continuing eligibility as an SSI program participant. [00:04:42] Speaker 06: Other, they could get a payment one month, miss a payment the next month, and then receive a payment in the third month. [00:04:49] Speaker 06: So although there are payment limitations baked into Title 16, that is akin to the payment limitations that the Supreme Court considered an empire and said that those do not disqualify a person from inclusion in the Medicare fraction. [00:05:08] Speaker 04: Empire dealt with an insurance coverage issue, whereas now we're talking about a benefit. [00:05:13] Speaker 04: And it seems that the Social Security benefits are defined as cash benefits. [00:05:19] Speaker 04: So I think that that's an important distinction. [00:05:22] Speaker 06: It's true. [00:05:23] Speaker 06: Empire is a health... Empire concerned Medicare Part A, which is health insurance. [00:05:28] Speaker 06: The Title 16 program is essentially income insurance for the lowest income Americans. [00:05:33] Speaker 06: It's a safety net program that provides for safety net and financial assistance to those most in need. [00:05:41] Speaker 06: So it is not health insurance, true, but it does function as essentially income insurance for those people that are most in need. [00:05:51] Speaker 04: The agency relies on the statute 1381A to say that these are paid benefits. [00:06:01] Speaker 04: And also, there's a regulation, 20 CFR 416.120, which says, as used in this part, supplemental social security income benefit means the amount to be paid to an eligible individual. [00:06:16] Speaker 04: How do you respond to that? [00:06:18] Speaker 06: Because if you look at the regulations, 416.200 and on down, what they first established is a person has to apply for benefits and be determined to be eligible, which means that they meet the basic income and resource qualifications for the program. [00:06:36] Speaker 06: At that point, a person is enrolled in SSI and becomes an eligible person. [00:06:41] Speaker 06: It then goes on to describe the circumstances in which [00:06:44] Speaker 06: they can be eligible for a monthly payment. [00:06:46] Speaker 06: Those are two different steps. [00:06:48] Speaker 06: And if a person meets the monthly, if they don't meet the monthly payment criteria for a particular month, they remain eligible for SSI. [00:06:57] Speaker 06: That's what Congress intended in 1382A. [00:06:59] Speaker 04: I think that's fine, but that doesn't mean that they're entitled to benefits for purposes of this fraction. [00:07:06] Speaker 06: They're not entitled to the monthly stipend. [00:07:08] Speaker 06: That's true. [00:07:10] Speaker 06: However, there are other benefits that accrue to those individuals as well that remain in place, whether they're receiving the monthly stipend or not. [00:07:17] Speaker 04: But those other benefits, they're not under Title 16, are they? [00:07:20] Speaker 06: Some of the benefits are the vocational rehabilitation benefits have been baked into Title 16 since the Vocational Rehabilitation Act of 1973. [00:07:32] Speaker 06: Remember that 85% or more of SSI beneficiaries are disabled. [00:07:39] Speaker 06: Disabled individuals qualify to seek both rehab benefits, and those remain in place whether they're getting the stipend or not. [00:07:47] Speaker 05: Sorry, I thought, is that the ticket to work benefit you're talking about? [00:07:52] Speaker 06: Ticket to work is a program. [00:07:54] Speaker 06: It's in Title XI. [00:07:55] Speaker 06: It's in Title XI. [00:07:57] Speaker 06: That was created in 1999. [00:07:59] Speaker 06: That was a new iteration of voc rehab benefits, but it wasn't the creation of voc rehab benefits. [00:08:05] Speaker 05: The voc rehab benefits- Okay, so where would we find vocational rehabilitation benefits in Title 16? [00:08:15] Speaker 06: In Title 16? [00:08:16] Speaker 06: I'll provide you with a precise citation on rebuttal. [00:08:20] Speaker 06: Okay. [00:08:20] Speaker 06: But in Title 16, it is still the case that [00:08:23] Speaker 06: disabled individuals will be paid or are eligible to be paid for vocational rehabilitation benefits even in months in which they don't receive the monthly stipend from the program. [00:08:36] Speaker 04: So you didn't raise vocational rehabilitation services and take it to work before the district court, did you? [00:08:42] Speaker 06: Aren't you forfeited? [00:08:43] Speaker 06: That issue was not raised. [00:08:44] Speaker 06: However, other program benefits has been raised throughout the course of these proceedings, both before the provider board, before the CMS administrator, and before the federal district court. [00:08:56] Speaker 06: So there are other benefits in addition to vocational rehabilitation. [00:09:00] Speaker 06: For example, Medicare Part D subsidy. [00:09:02] Speaker 06: All SSI recipients. [00:09:05] Speaker 06: get fully subsidized Medicare Part D coverage by virtue of their enrollment in the SSI program. [00:09:12] Speaker 06: That also is paid regardless of whether they're getting the monthly stipend or not from the SSI program. [00:09:19] Speaker 05: So take whatever title of Title 16 site you give for us and think about forfeiture and such. [00:09:28] Speaker 05: But the main other benefits that you rely on are ticket to work and [00:09:35] Speaker 05: automatic enrollment in Part D. But ticket to work is a Title XI benefit and Part D is a Title XVIII benefit. [00:09:45] Speaker 05: So why did those count as being under Title XVI? [00:09:49] Speaker 06: Well, vocational rehabilitation benefits are part and parcel of Title XVI. [00:09:54] Speaker 06: One of the key elements of Title XVI is to return disabled individuals to the workforce. [00:09:59] Speaker 06: So if you review the regulatory provisions for Title XVI, [00:10:03] Speaker 06: you will find copious information about not only their entitlement to vocational rehabilitation benefits, but also the fact that the agency needs to send them information about the right to seek vocational rehabilitation benefits. [00:10:16] Speaker 06: It is not correct to think of Title 16 as merely an income support program. [00:10:22] Speaker 06: One of the key initiatives of Title 16 is to return disabled individuals to the workforce. [00:10:28] Speaker 06: That's why these income supports come into place. [00:10:31] Speaker 06: Now, you mentioned, again, a ticket to work. [00:10:35] Speaker 06: That was created in 1999. [00:10:36] Speaker 06: And at that point, because Social Security Administration is not just Title 16, but also SSDI, so their voc rehab efforts do encompass both programs. [00:10:48] Speaker 06: And when they create a ticket to work, essentially what they were doing was enhancing voc rehab benefits. [00:10:53] Speaker 06: They weren't creating them, they were enhancing them. [00:10:56] Speaker 06: The Voc Rehab Act of 1973 [00:10:58] Speaker 06: is the original source of both rehab for Title 16. [00:11:02] Speaker 06: In Ticket to Work, essentially it was an effort to privatize those efforts to help disabled people return to the workforce. [00:11:10] Speaker 06: So they extended benefits to private companies that would be given a financial incentive to help coach people to get jobs, to give them job training, and to then help them find jobs and maintain them. [00:11:22] Speaker 06: So it's true, that's in Title 11, [00:11:24] Speaker 06: But it's also true that it applies to Title 16 recipients as it does to Title 2 recipients. [00:11:32] Speaker 05: Does your argument depend on our concluding that there is this vocational rehabilitation benefit above and beyond just the monthly paycheck, the monthly check, and that it is in Title 16? [00:11:54] Speaker 06: Yes, our argument does rely upon that. [00:11:58] Speaker 06: That vocational rehabilitation is an independent benefit within Title 16 that attaches to SSI eligible individuals, those who are disabled. [00:12:07] Speaker 06: And again, that's 85% of them. [00:12:09] Speaker 06: But again, there are other benefits as well. [00:12:12] Speaker 06: that accrue to those people based upon their enrollment in the SSI program. [00:12:17] Speaker 06: They get the Part D benefit, all of them get that by the secretary's admission, that far more people receive that subsidy than are being counted in the numerator of the Medicare fraction at this time. [00:12:28] Speaker 05: But if we didn't have vocational rehabilitation and we didn't have Part D, [00:12:36] Speaker 05: Would you be making the same argument? [00:12:39] Speaker 05: Yes, sir. [00:12:39] Speaker 05: Based on 1382A. [00:12:41] Speaker 05: Yes, sir. [00:12:42] Speaker 06: And I'd like to explain why, if I could. [00:12:46] Speaker 06: Even if you were to conclude that the only benefit is the cash benefit, and we would respectfully disagree with that conclusion. [00:12:52] Speaker 06: I understand. [00:12:53] Speaker 06: This is your alternative. [00:12:55] Speaker 06: If the cash benefit is the only benefit, in light of the Empire decision, the fact that a person doesn't receive the cash benefit in one month but may receive it in the month before and the month after still qualifies them to be counted. [00:13:08] Speaker 06: Because what Empire said is that limitations on payment do not disqualify a person. [00:13:14] Speaker 06: And the record before you is undisputed that when these individuals miss a payment, they are not kicked out of the program. [00:13:21] Speaker 06: They don't have to reapply for benefits. [00:13:23] Speaker 06: They remain in the program. [00:13:25] Speaker 06: If the work enhancement opportunity results in them, if the work enhancement opportunity results in them making too much money for a month, the very next month they may not make it. [00:13:38] Speaker 06: The other thing, they may not make enough so they would qualify again, I should say. [00:13:41] Speaker 06: Their benefits are reinstated automatically. [00:13:43] Speaker 04: The reasoning of empire though was very much dependent upon the statutory context, how that word is used within Medicare statute. [00:13:52] Speaker 04: And the statutory context here is very different [00:13:55] Speaker 06: It's different. [00:13:56] Speaker 06: It's true. [00:13:57] Speaker 06: It's different. [00:13:57] Speaker 06: It's somewhat different. [00:13:58] Speaker 06: But you do still have benefits that remain in place, number one, with voc rehab and Part D and, for that matter, medical assistance benefits. [00:14:07] Speaker 06: But you also then have the opportunity, as Empire explained, in a justifying state, counting individuals who have what are called Medicare exhaust days. [00:14:17] Speaker 06: What the court said in Empire is, if the person has Medicare exhaust days, so Medicare did not pay for that care. [00:14:24] Speaker 06: The next spell of illness may be covered by Medicare. [00:14:28] Speaker 06: So if a person on SSI does not receive a monthly payment because they made too much money in their part-time job, they might get the very next month, they might get that check. [00:14:39] Speaker 06: The other important thing to remember is the system that is in place right now does not measure the individual's eligibility month by month. [00:14:48] Speaker 06: The payment computation is based upon data from either one month or two months prior. [00:14:54] Speaker 06: So the information the secretary is using is not measuring the person's financial profile at the time they're hospitalized. [00:15:03] Speaker 04: So in our view- Don't they do this whole payment at the end of the year anyway? [00:15:06] Speaker 04: And then they recode for people who change status later. [00:15:14] Speaker 06: So the secretary acknowledges in their brief that their current system [00:15:19] Speaker 06: I will say that their current system is internally inconsistent and leads to absurd results. [00:15:24] Speaker 06: Because number one, as you say, their rationale is, don't worry. [00:15:28] Speaker 06: We are not counting some people who are eligible. [00:15:31] Speaker 06: They acknowledge that. [00:15:33] Speaker 06: But we fix it later because we run the data 15 months after the fact. [00:15:37] Speaker 06: However, in doing that, it disregards the record, which is that many of these disputes about a person's disability [00:15:46] Speaker 06: or a dispute about whether payment should have been suspended, it takes years, not months, to resolve this. [00:15:53] Speaker 06: So those kinds of problems are not going to be fixed by running the data 15 months later. [00:15:58] Speaker 06: The other problem with that rationale is none of the information is shared with hospitals. [00:16:04] Speaker 06: That is why a mandamus claim is a part of our complaint, because the information we need to verify and challenge our calculation has never been given to the hospital. [00:16:16] Speaker 06: So the government says, trust us in terms of, we're going to fix that later. [00:16:21] Speaker 06: Because they acknowledge they're not counting all eligible people as they do these calculations. [00:16:26] Speaker 06: But they don't give us the information to test that. [00:16:30] Speaker 04: Well, you're asking for the code information, and they don't have the code information. [00:16:34] Speaker 06: SSA has the code information. [00:16:36] Speaker 06: But they receive the data from SSA. [00:16:39] Speaker 04: Not in that form, though. [00:16:40] Speaker 04: But the secretary. [00:16:42] Speaker 06: Go ahead. [00:16:42] Speaker 06: I'm sorry. [00:16:43] Speaker 06: Respectfully, the secretary can get the information it needs from SSA because they're getting it now. [00:16:49] Speaker 06: They can direct SSA. [00:16:51] Speaker 06: It's the secretary's duty to get the appropriate data information from Social Security Administration. [00:16:58] Speaker 04: So I think the secretary is getting what they think is necessary, but they're not getting what you think is necessary. [00:17:03] Speaker 06: And they're not sharing any of the data with hospitals. [00:17:06] Speaker 04: Well, they're sharing the data that they think is necessary, but they're not getting additional information that you think is necessary. [00:17:13] Speaker 06: But the data they share is not adequate under the Medicare Modernization Act, because we are supposed to be able to verify and challenge the dish calculation. [00:17:22] Speaker 06: None of the codes, either for the patients they're counting or for any other patients, are ever provided to hospitals. [00:17:30] Speaker 04: Clothes are not provided to HHS. [00:17:34] Speaker 04: SSA gives it to them in a different form. [00:17:37] Speaker 04: So you're asking them to give you information they don't know. [00:17:41] Speaker 06: But it's within their control to obtain the information. [00:17:44] Speaker 06: It's within their obligation to obtain the information. [00:17:51] Speaker 03: All right. [00:17:52] Speaker 03: Mr. Miller, we'll give you a couple minutes in reply. [00:17:55] Speaker 06: At this point we're on rebuttal. [00:17:57] Speaker 06: Rebuttal? [00:17:58] Speaker 03: Thank you. [00:17:59] Speaker 03: Ms. [00:17:59] Speaker 03: Marcus. [00:18:11] Speaker 03: Thank you, Your Honor. [00:18:12] Speaker 02: Good morning. [00:18:13] Speaker 03: Could you put that microphone down or the podium? [00:18:20] Speaker 02: Is this better? [00:18:20] Speaker 02: Can you hear me now? [00:18:21] Speaker ?: Okay. [00:18:22] Speaker 02: Thank you. [00:18:23] Speaker 02: Good morning. [00:18:24] Speaker 02: I'm Stephanie Marcus from the Department of Justice, and I represent aptly the Secretary of HHS. [00:18:29] Speaker 02: In this case, the District Court properly upheld the Secretary's interpretation of entitled to SSI benefits under Title 16. [00:18:38] Speaker 02: That interpretation best reflects the plain language of the statute in the context of the benefits program to which it refers. [00:18:47] Speaker 02: And as Judge Katz and Judge Pan have recognized, there are elements of the SSI program that distinguish it from the Medicare program that was addressed in MPAL. [00:19:01] Speaker 02: And one of the main ones is that the SSI program is a cash benefit program that does vary. [00:19:10] Speaker 02: And so that a benefit varies and eligibility or entitlement to that benefit varies from month to month based on income and resources. [00:19:19] Speaker 02: That's different from Medicare, which is an insurance program. [00:19:22] Speaker 02: and you are covered by the insurance. [00:19:25] Speaker 02: And that is once you reach age 65, as the Supreme Court said, that's a status based benefit. [00:19:32] Speaker 02: It doesn't change. [00:19:34] Speaker 05: Your friend says there's a vocational rehabilitation benefit in [00:19:42] Speaker 05: Title 16. [00:19:44] Speaker 05: I had sort of written off pick it to work because it's in Title 11. [00:19:48] Speaker 05: But I want to address, I know you're shooting in the dark here because we don't have a site, but what's your understanding? [00:19:54] Speaker 02: We do have only one statutory site in the opening brief, which we refer to on page 35 of our brief. [00:20:01] Speaker 02: It's in footnote five and the sole site they just had. [00:20:05] Speaker 05: I'm sorry, what page? [00:20:06] Speaker 02: This is on page 35. [00:20:08] Speaker 05: Of the red brief? [00:20:09] Speaker 05: Of the red brief. [00:20:11] Speaker 05: Is 1382 D? [00:20:12] Speaker 02: Yes. [00:20:13] Speaker 05: I'm sorry, which title is that? [00:20:15] Speaker 02: Oh, that is the only, I believe that is title 16, but it applies to referrals by the commissioner of individuals under age 16 to the appropriate state agency administering the state program. [00:20:29] Speaker 02: and allows for reimbursement to such state agencies. [00:20:31] Speaker 02: So we are relying on what Congress said the basic entitlement under Title 16 is, and that's set forth under 42 USC 1381A, and it refers to benefits paid by the commissioner. [00:20:52] Speaker 02: And then the [00:20:54] Speaker 02: The plaintiff also referred to a number of regulations about vocational rehab services, but those need to be looked at in the context of the Secretary's long-standing Title XVI regulation under Title XVI, which, as Dungepan pointed out, defines supplemental security income benefit means the amount to be paid to an eligible individual. [00:21:20] Speaker 02: And there's a ticket to work provision that we cited that also defines the Title 16 benefit means a cash benefit. [00:21:29] Speaker 02: We have that, it's a site in our brief. [00:21:32] Speaker 05: For purposes of the section in Title 11. [00:21:34] Speaker 02: Yes, but I mean that's, so we have the Title 16 provision itself, a provision from the ticket to work program that also applies to vocational rehabilitation services and a 19, [00:21:48] Speaker 02: a regulation from the 1970s. [00:21:51] Speaker 02: And all the court needs to do is determine that the secretary's interpretation is at least permissible here. [00:22:00] Speaker 02: And we submit that because of the nature of the SSI benefit program, the interpretation is entirely consistent with the Supreme Court's empire decision. [00:22:13] Speaker 04: Can we talk about cross program recovery? [00:22:16] Speaker 04: Because that seems to be a little unclear in the record. [00:22:20] Speaker 04: Do you know how that's coded? [00:22:22] Speaker 02: Your honor, as we said in our brief, we don't think that's really properly considered in this case. [00:22:28] Speaker 02: But we did, after more discussion of it in plaintiff's reply brief, we did inquire with Social Security [00:22:38] Speaker 02: And our understanding from Social Security is the code remains the same. [00:22:42] Speaker 05: So if the person... This is E101, sorry. [00:22:47] Speaker 02: It's not E01. [00:22:48] Speaker 02: As we said that... E01. [00:22:50] Speaker 02: No, if someone has a payment, is entitled to a payment, that's the only way you could get cost program recovery. [00:22:58] Speaker 04: So it's included within CO1, MO1, or MO2? [00:23:02] Speaker ?: Yes. [00:23:02] Speaker 02: Yes, that's our understanding from Social Security. [00:23:05] Speaker 02: And we also would refer to the statute cited by plaintiff about cross-program recovery itself shows that the agency, if they're going to do the cross-program recovery, which, again, I don't think applies to any of the patients in this case, and it's not relevant to the rulemaking or the actual statutory interpretation, but putting that aside, [00:23:32] Speaker 02: they would only take the lower of 10% of the person's income or the benefit. [00:23:39] Speaker 02: And because the benefit is included in the person's income, our understanding is that they just didn't know of any cases where the whole benefit would be taken anyway, or it would be rare. [00:23:55] Speaker 02: So I guess you're saying, I see. [00:23:57] Speaker 04: Yeah. [00:23:58] Speaker 04: Are you saying that it's, they don't know of any cases where it's reduced to zero, and if it's reduced only somewhat, then it would be a patch. [00:24:05] Speaker 02: Yeah, it theoretically could be, but they also said that the code remains the same. [00:24:10] Speaker 04: Meaning it's within CO1 or MO1 or MO2. [00:24:14] Speaker 02: And again, as we noted in our brief, the EO1 doesn't, it wouldn't be logical in that situation because EO1 is when the person isn't [00:24:25] Speaker 02: you know, entitled to a payment for that month, either because the application has not become effective and those people are not entitled to a payment. [00:24:37] Speaker 02: And that application is yet another reason that this is distinguishable from the Medicare program. [00:24:43] Speaker 02: You have to apply. [00:24:44] Speaker 02: Just being an eligible individual under the standards isn't enough unless you actually apply. [00:24:51] Speaker 02: and your application is granted. [00:24:52] Speaker 02: And the other one is if the person is in a medical facility and there's a limitation on payments for that, and if the income exceeds that, they're not entitled to a payment. [00:25:05] Speaker 02: So that person wouldn't have anything to recover from and cross program. [00:25:12] Speaker 05: So so sorry, just to make sure I got this. [00:25:16] Speaker 05: You are representing to us that a person who is entitled to a payment in a particular month and doesn't get it because of this clawback [00:25:32] Speaker 02: Okay. [00:25:33] Speaker 05: We are not aware of any would not be coded in here. [00:25:38] Speaker 02: That is our understanding your honor. [00:25:40] Speaker 02: But again, I don't mean I thought that's what you were saying in your brief, but it wasn't that well, it's because it's not in the record. [00:25:48] Speaker 02: It's not properly in the record in this case because there's no the program was not [00:25:57] Speaker 02: In this case, cleanup hasn't developed any examples of this happening. [00:26:02] Speaker 02: And because our understanding is also that it is virtually always going to be limited to that 10% of income, that person will still get a payment for the money. [00:26:16] Speaker 04: It just might be reduced. [00:26:17] Speaker 02: Then it would still be CO1, but it would be a lesser. [00:26:23] Speaker 04: And when you confirmed with the SSA before argument, did you ask them about E01? [00:26:31] Speaker 02: We asked them about what the code, would it change the code in the class recovery program. [00:26:41] Speaker 02: And again, this was just some discussions. [00:26:43] Speaker 02: And this is our understanding. [00:26:47] Speaker 02: And I think there's, again, if [00:26:54] Speaker 02: You look at what EO1 means. [00:26:57] Speaker 02: It makes sense. [00:26:58] Speaker 02: That's what we said in our brief. [00:27:01] Speaker 02: And I don't. [00:27:05] Speaker 02: This case is about the reasonableness of the secretary's interpretation and how the secretary interprets the statutory language. [00:27:12] Speaker 02: This plaintiff isn't asking to go back and look at what happened to individual patients or anything. [00:27:18] Speaker 02: And here, we are saying that it's mostly [00:27:24] Speaker 05: Right. [00:27:26] Speaker 05: But they have a fallback argument that even under your interpretation, their coding doesn't operationalize things in the right way because they put people in E01. [00:27:41] Speaker 02: Right. [00:27:41] Speaker 02: And we would refer to the court and to the rulemaking where the secretary went through in the rulemaking on agenda page 18. [00:27:52] Speaker 02: the secretary addressed a number of codes that commenters had brought up in the rulemaking. [00:27:59] Speaker 02: And the secretary went through and explained what those codes were and said why they weren't within the statutory interpretation of entitled SSI benefits under Title 16. [00:28:13] Speaker 02: And that's because under the secretary's interpretation, it means entitled to receive a cash benefit while [00:28:22] Speaker 02: the individuals in the hospital. [00:28:25] Speaker 02: And as plaintiff acknowledges, that doesn't mean that the person actually has to get the cash that month. [00:28:35] Speaker 02: There is, as the rulemaking shows, a 15-month period where SSA may be developing why the person, there could be an appeal. [00:28:46] Speaker 02: They may be figuring out whether the person actually is eligible, and they will retroactively change the code. [00:28:54] Speaker 02: And so it's just whether they're looking at the HHS in determining the disproportionate share percentage is looking at whether the person was entitled to receive payment that month, not whether he or she actually got a payment. [00:29:14] Speaker 05: Can I ask, so suppose we agree with you that enrollment is not sufficient, but you have to look to entitlement to the cash benefit on a month by month basis. [00:29:34] Speaker 05: But I still wonder, [00:29:39] Speaker 05: whether, and that means your opponent's interpretation is wrong, but under your interpretation, you don't count people who are unenrolled for whatever reason, but who meet all of the status-based and income-based requirements for the program. [00:30:04] Speaker 05: Someone who's elderly, someone who's disabled and has no income. [00:30:08] Speaker 05: right? [00:30:09] Speaker 05: And they just, they just haven't gotten around to enrolling. [00:30:14] Speaker 05: Wouldn't we say in plain English, that person is entitled to the benefit and just hasn't filled out the paperwork? [00:30:27] Speaker 05: No, Your Honor. [00:30:29] Speaker 05: And isn't that person [00:30:31] Speaker 05: the kind of person Congress had in mind because that person is poor and has the health complications that come with it, which is what drives this fraction. [00:30:42] Speaker 02: Your Honor, I think that question actually points out the problem with plaintiff's interpretation about anyone eligible or enrolled but not actually entitled to receive a benefit for the month should be included. [00:30:56] Speaker 02: And the statute itself shows that that's not what Congress intended to be entitled to the benefit under Title 16, because in 1381A, it says, [00:31:09] Speaker 02: every agent, blind or disabled individual who is determined under Part A to be eligible. [00:31:15] Speaker 02: So that also refers to Part 42 USC 1382 C7, which is, it's a statutory, not a regulatory requirement that the person apply. [00:31:28] Speaker 02: So I would submit that Congress didn't think a person in, you know, just someone who's sort of eligible in the, out in the air. [00:31:37] Speaker 02: I mean, I see that. [00:31:40] Speaker 05: But on the other hand, it's not applying in some competitive process, applying to an elite college or something. [00:31:52] Speaker 05: You submit the application and it seems pretty pro forma. [00:32:00] Speaker 05: C7 says the application is effective. [00:32:04] Speaker 05: on the first day of the next month after you've become eligible when applied. [00:32:09] Speaker 05: It just seems like this is a matter of paperwork. [00:32:17] Speaker 05: And just one other thought on that, which is just sort of the concept, the concept of entitlement. [00:32:25] Speaker 05: In this program, Congress appropriates whatever funds are necessary to meet the program, which often [00:32:34] Speaker 05: is associated with the word entitlement? [00:32:38] Speaker 02: Well, Your Honor, I think with the application, it's not pro forma because of the income and resource limitations. [00:32:45] Speaker 02: And there are issues such as your spouse's income and resources count in that, too. [00:32:53] Speaker 02: And there are a lot of inquiries the agency needs to make. [00:32:57] Speaker 02: and in determining whether the person actually is eligible. [00:33:02] Speaker 02: So even someone who may think he is, you know, under the income limit, if his wife owns some, you know, a piece of property that would disqualify them, then, you know, he, that, I mean, it is, it's not pro forma and it is the entitlement to the actual cash benefit wouldn't actually invest until the application is done. [00:33:29] Speaker 02: And if there are no further questions, we'll just rest on a brief on the mandate. [00:33:33] Speaker 02: Thank you. [00:33:34] Speaker 03: All right, thank you. [00:33:37] Speaker 03: Mr. Miller, why don't you take two minutes? [00:33:46] Speaker 06: Because the citation you were looking for is 42 USC 1382 H. [00:33:48] Speaker 06: 1382 H? [00:33:53] Speaker 06: Yes, sir. [00:33:53] Speaker 06: OK, we'll check it later. [00:33:55] Speaker 06: Thank you. [00:33:56] Speaker 06: The secretary's interpretation of the statute translates two terms, eligible and entitled. [00:34:02] Speaker 06: And in case after case, that distinction has been rejected. [00:34:07] Speaker 05: That's true, but so does 1381A, whose title is basic entitlement to benefits and all of whose text talks about eligibility. [00:34:19] Speaker 06: Indeed. [00:34:19] Speaker 06: And as Judge Anderson observed in the Hall case in this circuit, those two terms are synonymous. [00:34:26] Speaker 06: Those two terms are synonymous, eligibility and entitlement. [00:34:30] Speaker 06: In the Supreme Court case of Empire, they rejected Empire Health Foundation's attempt to try to draw a distinction between eligibility and entitlement. [00:34:38] Speaker 06: What the court said in Empire is that if you meet basic program qualifications, you should be counted in the distraction. [00:34:46] Speaker 06: And in this case, what that means is the court should follow the congressional definition of who is an eligible person for purposes of this title, which is in 1382A. [00:34:55] Speaker 06: The secretary acknowledges that he is not doing that. [00:34:59] Speaker 06: He is taking a subset of those individuals, only those who receive the monthly payment are being counted. [00:35:06] Speaker 06: So with if I have 40 seconds left, but I would say is the system that is currently in place. [00:35:12] Speaker 06: is arbitrary and increases as the terms are used under the Administrative Procedure Act, because again, the decision is being based upon the individual's financial profile from one or two months prior to the date of hospitalization. [00:35:27] Speaker 06: The system that they're currently using counts three codes, two of which include people who are not eligible for payment, and many of the codes being excluded are for people who are in fact eligible for payment. [00:35:39] Speaker 06: So in our view, the system that they have in place should not stand. [00:35:43] Speaker 06: It's also, to us, the idea that they're using a subset of people for purposes of the Medicare fraction numerator, but all SSI enrollees receive the Part D benefit. [00:35:54] Speaker 06: It's another illustration that it's not a reasonable interpretation of the statute. [00:36:01] Speaker 06: Are there other questions for me? [00:36:03] Speaker 06: I don't think so. [00:36:03] Speaker 06: Thank you. [00:36:03] Speaker 06: Thank you very much.