WEBVTT 00:00:00.070 --> 00:00:06.560 We'll hear argument first this morning in Case 23-715, Advocate Christ Medical Center versus Becerra. 00:00:06.560 --> 00:00:08.075 Ms. Sherry. 00:00:08.075 --> 00:00:15.755 Mr. Chief Justice, and may it please the Court: The same words in the same sentence should have the same meaning. 00:00:15.755 --> 00:00:21.200 Today, we are talking about the words "entitled to benefits" in the DSH adjustment. 00:00:21.200 --> 00:00:39.800 Just two terms ago, in Empire Health, this Court looked at the words "entitled to benefits under Medicare Part A" and said that it means qualifying for the Medicare Part A program. "Entitled to SSI benefits" in the same sentence should mean the same thing, qualifying for the SSI program. 00:00:39.800 --> 00:00:49.365 A person qualifies for the SSI program when she applies and is determined eligible, and that eligibility lasts until it is terminated. 00:00:49.365 --> 00:00:59.395 The government disagrees because it says that there's no such thing as an SSI program and the only SSI benefit is a monthly cash payment. 00:00:59.395 --> 00:01:07.155 But Congress created what it called a national program, and it created a program of income insurance. 00:01:07.155 --> 00:01:20.740 This is a program where a person who's low income enough to qualify in the first place is promised a minimum guaranteed income for a calendar year, and in the months where that income is not needed, the cash payment is suspended. 00:01:20.740 --> 00:01:24.865 Nothing is terminated, and other benefits remain available. 00:01:24.865 --> 00:01:38.785 In the end, this is about DSH, and DSH is about ensuring that hospitals are reimbursed for low-income patients that are less healthy and that are costlier to treat, and health does not change overnight. 00:01:38.785 --> 00:01:44.080 The government's interpretation simply does not count that low-income population. 00:01:44.080 --> 00:01:48.915 It does not count the low -income Medicaid patient coming out of a nursing home. 00:01:48.915 --> 00:01:52.675 It does not count the low-income patient waiting for her first check. 00:01:52.675 --> 00:01:56.415 And the list of those it does not count goes on and on. 00:01:56.415 --> 00:02:05.830 A DSH proxy that does not measure the low-income population is no proxy at all. I welcome the Court's questions. 00:02:05.830 --> 00:02:14.505 Are there other benefits other than cash under -- under, what is it, Title XVI? 00:02:14.505 --> 00:02:15.500 There are. 00:02:15.500 --> 00:02:28.880 There are non-cash benefits, including Medicaid continuation, and you can find that in 1382h(b), and there's also vocational rehabilitation, which you can find in Title XVI under 1382d. 00:02:28.880 --> 00:02:34.090 You know, the government's response to that, I think, is twofold. 00:02:34.090 --> 00:02:42.930 It's to say that non-cash is not income but probably more so to say that those aren't benefits under Title XVI. 00:02:42.930 --> 00:02:49.090 But they're both housed in Title XVI. They're both triggered by being program-eligible under Title XVI. 00:02:49.090 --> 00:02:58.875 And especially when it comes to Medicaid continuation, it's referred to as a benefit under 1382h, which is in Title XVI. 00:02:58.875 --> 00:02:59.955 The -- 00:02:59.955 --> 00:03:21.585 Could you clarify for me the Medicare -- the Medicaid regulation that the government replies --relies on? It's some --it has something to do with, if someone's on Medicaid, if they receive more than $30 a month in income, they're no longer eligible for SSI? 00:03:21.585 --> 00:03:22.340 Yeah. 00:03:22.340 --> 00:03:28.060 So --so this comes out of the SSI statute, and it makes sense when you're thinking of -- of SSI. 00:03:28.060 --> 00:03:36.400 So the reasoning behind it is that while you're in a facility where Medicaid is paying for your daily needs, you don't need the full payment. 00:03:36.400 --> 00:03:43.080 Instead, you'll get this $30 comfort payment but only if your income is actually under $30. 00:03:43.080 --> 00:03:47.010 And for most people, because you get a Social Security check, that's not going to be the case. 00:03:47.010 --> 00:03:58.650 And I think that's one of the most significant problems with the government's approach, is it doesn't count any of those individuals as low income for purposes of the Medicare fraction. 00:03:58.650 --> 00:04:08.310 And it's really significant because we have two different fractions here, right? One measures low income based on SSI. The other one measures it based on Medicaid eligibility. 00:04:08.310 --> 00:04:21.940 And so these are people that are, by definition, Medicaid-eligible and so low income when you think about the Medicaid fraction, yet because of the way they do the calculation here, they're actually not counted in either fraction. I think, in Empire -- 00:04:21.940 --> 00:04:45.850 Now I -- I am a little concerned about the Medicaid situation because, as I understand it, when people are placed in nursing homes, they assign all of their income to the nursing home, and Medicaid then picks up whatever the difference is between that income and whatever the --the authorized charge is. 00:04:45.850 --> 00:04:58.935 So, by the government counting the SSI as income to the patient, they're ignoring that the patient is only seeing about $30 a month. 00:04:58.935 --> 00:05:01.900 Yeah, and -- and I think even less than that. 00:05:01.900 --> 00:05:16.650 I mean, I think the real problem with the government's approach is that person, in -- in the terms of the -- the regulations, is thought of to be eligible for SSI but not payable, and those individuals just aren't counted at all for DSH purposes. 00:05:16.650 --> 00:05:38.305 And so I think there was an assumption in Empire Health that low-income individuals would be in one fraction or the other, one box or the other, but this takes these individuals who are indisputably low income in their hospital month and it doesn't count them at all. And I think this is one of the places where the government's arguments confuse the purposes of the SSI statute and the purposes of DSH. 00:05:38.305 --> 00:05:43.990 And so, you know, maybe there's a good reason why they don't get a check, maybe there's not, as Your Honor pointed out. 00:05:43.990 --> 00:05:47.640 But whatever the answer to that question is, it's specific to SSI. 00:05:47.640 --> 00:05:55.290 For DSH, there's absolutely no reason why they shouldn't be counted as low income for purposes of figuring out the hospital's reimbursement. 00:05:55.290 --> 00:05:56.160 Thank you, counsel. 00:05:56.160 --> 00:06:06.140 Ms. Sherry, am I correct -- I just want to clarify that you're not challenging any of the specific codes, because people fall out for different reasons, you know, wrong address and all of that, some of the S codes? 00:06:06.140 --> 00:06:06.510 Yes. 00:06:06.510 --> 00:06:11.815 But you're not challenging any of those, and the D.C. Circuit held that those challenges were waived? 00:06:11.815 --> 00:06:19.555 So -- so I think what was going on in the D.C. Circuit was really challenges to what kind of happens behind the curtains as far as the counting goes. 00:06:19.555 --> 00:06:23.960 The challenge that we have is just to what the interpretation of the language should be. 00:06:23.960 --> 00:06:33.690 And, under our interpretation, all of those codes would be counted because our view of it is that it's about program eligibility and someone is -- 00:06:33.690 --> 00:06:36.100 But, if you lose, which let's just assume -- 00:06:36.100 --> 00:06:36.485 Yes. 00:06:36.485 --> 00:06:46.000 -- if you --if you lost, it's still possible for you in other litigation, if -- even if not on remand, if it's waived, to challenge particular codes? 00:06:46.000 --> 00:06:47.550 I think it depends. 00:06:47.550 --> 00:07:03.350 I mean, I think the government's view -- if the government's interpretation prevails here, I think all of those codes would be out because the government is -- is defending what --or I think defending, although maybe ask them, but I think defending what CMS is doing, which is only counting three codes. 00:07:03.350 --> 00:07:06.555 And that's at pages 47 and 48 of their brief. 00:07:06.555 --> 00:07:23.665 And so, if -- if their interpretation prevails, they will continue to just count the three codes. And you can imagine litigation about whether they're doing that correctly, and there has been litigation, you know, with respect to that, but as far as our differing interpretation goes, I think we're at two different extremes. 00:07:23.665 --> 00:07:43.840 Because it seems to me like if you're eligible for a monthly payment because your income was low enough, but you didn't get the check because -- for all of the various administrative reasons why you might not get it, I could imagine you satisfying the statutory definition even under the government's approach but yet still be entitled to a check that somehow the codes don't account for. 00:07:43.840 --> 00:07:44.300 Yeah. 00:07:44.300 --> 00:07:46.960 So I --I'm curious as to what the government's view are. 00:07:46.960 --> 00:07:58.320 I -- I can say that CMS is not counting those individuals, right, because they're only counting the three codes, and I think they're basing it -- we call it an actual receipt rule. Maybe it's an actually sent rule. 00:07:58.320 --> 00:08:04.780 But they're only counting those for which a payment has been sent by the time they do the matching process, so 15 months after. 00:08:04.780 --> 00:08:11.810 And anyone who doesn't have one of those three codes at the time, which would include all the individuals you're talking about, just wouldn't be counted. 00:08:11.810 --> 00:08:20.805 But I don't think you can just draw the line at those individuals because there's a second category, including the nursing home patients, who are still eligible. 00:08:20.805 --> 00:08:25.800 They're just not payment-eligible in a particular month. They're not due a payment in that month. 00:08:25.800 --> 00:08:30.665 And the government, I think, admits that all of those individuals fall out under their approach too. 00:08:30.665 --> 00:08:33.090 It includes those in their first month of eligibility. 00:08:33.090 --> 00:08:40.355 So they just went through the application process and were found to be low income, yet they 're not entitled to a check their very first month. 00:08:40.355 --> 00:08:43.000 Those individuals would not be counted. 00:08:43.000 --> 00:08:50.935 Also in the other category, there's individuals who are in prison, who also aren't counted because they're not due a check. 00:08:50.935 --> 00:09:03.580 That might make a lot of sense when it comes to SSI. It doesn't make any sense when it comes to DSH because the individuals who are low income who are in prison certainly aren't getting any healthier when they're transferred to a hospital. 00:09:03.580 --> 00:09:14.680 So, as a textual matter, you seem to be distinguishing program eligibility, as you say, and eligibility for a payment, and I'm just wondering whether that's pretty common. 00:09:14.680 --> 00:09:19.750 I mean, I sort of conceive of other benefits programs in the federal scheme in a similar way. 00:09:19.750 --> 00:09:36.010 I sort of thought that's what we were saying in Empire, that you could have Medicare where you have criteria for program eligibility, but just because you don't get the benefit doesn't mean that you don't qualify for the DSH fraction. 00:09:36.010 --> 00:09:37.910 Is that sort of how your argument works? 00:09:37.910 --> 00:09:38.880 It is, right. 00:09:38.880 --> 00:09:49.240 There's a differ ence between whether you have a right to payment at a --at a particular time or for a particular service and whether you are in the program, whether you are entitled to benefits under the program. 00:09:49.240 --> 00:09:54.365 And we're making the same distinction here that the Court made in Empire Health in that respect. 00:09:54.365 --> 00:09:59.250 And I think you could look --I mean, in terms of the actual textual language, you can look at a few provisions. 00:09:59.250 --> 00:10:21.990 The most notable one in the SSI statute we point out in our brief, it's in -- on pages 60 --sorry, 34A and 35A of the statutory addendum, and it's this financial records provision, and it basically says: You authorize us to access your financial records, and that authorization lasts until cessation of your eligibility for benefits under Title XVI. 00:10:21.990 --> 00:10:32.420 And the government agrees that that has to mean program eligibility because, otherwise, it would be a very nonsensical system to have to get reauthorization every single month. 00:10:32.420 --> 00:10:40.610 And the regulations confirm that because they say that the authorization is valid until there has been a terminating event. 00:10:40.610 --> 00:10:50.000 And so your argument just in terms of the purposes, because you brought that up before, is that you view DSH as trying to get at those people that -- 00:10:50.000 --> 00:10:52.430 Trying to get at the larger group of individuals. 00:10:52.430 --> 00:11:03.900 The larger group of program eligibility because it doesn't, in your view, make any sense that whether or not a person gets a payment is --has some sort of relationship to the DSH fraction? 00:11:03.900 --> 00:11:19.430 That's exactly right. And if you look, actually, at the legislative history for DSH in the Senate report and in the conference report, where they're talking about the Senate bill, the language is the same there as it is now when it comes to SSI at least. 00:11:19.430 --> 00:11:30.800 And for that language, they describe it as wanting to count those who are enrolled in the SSI program, so both acknowledging that there is a program and focusing on the class of enrollees. 00:11:30.800 --> 00:11:44.600 And I think that is most consistent with the DSH purpose, but I think it's also most consistent with the text of DSH, which talks about "entitled to benefits," plural, and also excludes one particular benefit, which is state supplementation. 00:11:44.600 --> 00:11:58.060 So it's a broad definition, but it's also a nuanced one that would include everything else that is not excluded, which includes the cash benefits but also includes things like Medicaid continuation and also vocational rehabilitation. 00:11:58.060 --> 00:12:00.180 Both are within Title XVI. 00:12:00.180 --> 00:12:18.475 Can I step back a minute, Ms. Sherry, and just ask you about the nature of your argument? Because you start both in the briefs and then again this morning, you know, by saying "entitled to benefits" can't mean the same thing when it's used twice in one -- can't mean different things when it's used twice in one sentence. 00:12:18.475 --> 00:12:31.145 But, of course, this is "entitled to benefits under Medicare" and "entitled to benefits under SSI." And -- and Empire was all about what "entitled to benefits under the Medicare program" meant. 00:12:31.145 --> 00:12:40.405 I mean, it did a sort of micro-analysis of the Medicare statute and its structure and its purposes and its text. 00:12:40.405 --> 00:12:58.490 So, if we thought that the SSI program was completely different, if we thought that -- and I know your argument is that it's not -- but, if we thought that, this argument about the language can't mean different things in the same sentence would completely go away, isn't that correct? 00:12:58.490 --> 00:13:01.940 Partially. So I want to clarify. 00:13:01.940 --> 00:13:08.015 We think you have to st art with the DSH statute, and we think you have to start with Empire, but that's not to say you shouldn't look to the SSI statute. 00:13:08.015 --> 00:13:12.440 You need to do that to determine whether someone qualifies for a program. 00:13:12.440 --> 00:13:34.850 Now, as far as what "entitle" means, I do think there would still be an oddity in terms of saying "entitled" does not mean right to payment, it means eligible in one part, then "entitled" means right to payment, it doesn't mean eligible, and then you get down to "eligible" and you say it doesn't mean right to payment, it means the same as the first "entitled" but not the second "entitled." So I do think that would be a complicated thing to do. 00:13:34.850 --> 00:14:01.790 Wel l, I --I guess the question, though, is, you know, what it means to be entitled to benefits under either program. And if you thought what it meant is -- is very different to --you know, that "entitled to benefits under Medicare" was very different from "entitled to benefits under SSI" or, similarly, that "eligibility for benefits under Medicare" was very different from "eligibility for benefits under SSI," then that's the way you would read the statute, correct? 00:14:01.790 --> 00:14:04.550 I -- I think that's true if you focus on -- on benefits. 00:14:04.550 --> 00:14:06.710 And the only thing I'm pushing back on -- I would agree with you. 00:14:06.710 --> 00:14:17.660 I mean, if you took "entitled to" and you ran it through the SSI statute and it became clear it's a term of art, it always means right to payment, you would, you know, probably overcome the presumption and read it back in. 00:14:17.660 --> 00:14:20.410 But "entitled to" is not a term of art in the SSI statute. 00:14:20.410 --> 00:14:21.700 It's rarely used. 00:14:21.700 --> 00:14:22.680 And so that doesn't work. 00:14:22.680 --> 00:14:23.350 I mean, just to put this -- 00:14:23.350 --> 00:14:23.690 But then the other -- 00:14:23.690 --> 00:14:55.480 -- at its most starkest form, you know, suppose -- and I -- I know that you vigorously resist this, and -- and I'm not suggesting the -- I'm just -- let's just assume for a second that SSI was, like, not an insurance program of the kind that Medicare is, nor is it a program that gives you a panoply of benefits but that, instead, it was simply a -- a cash subsidy that is given on a month-to-month basis. 00:14:55.480 --> 00:14:56.280 Let's just say that. 00:14:56.280 --> 00:14:59.125 And I know you have a thousand objections to that. 00:14:59.125 --> 00:15:10.750 But, I mean, then you would say: Well, you know, then the government has to be right, notwithstanding that it's "entitled to," "entitled to" in the statute. 00:15:10.750 --> 00:15:11.020 Right. 00:15:11.020 --> 00:15:18.110 That would be a different case because you would say, when you qualify for the SSI benefits, it is limited just to that monthly right to payment. 00:15:18.110 --> 00:15:32.850 I mean, if it was just people off the street, right, there's no program, there's no application process, just every month you call up, say, I checked these three boxes, give me a check, the next month you call up again, and there's no application process, there's no program, there's no other benefits, yes, it would be completely not okay. 00:15:32.850 --> 00:15:32.910 Yeah. 00:15:32.910 --> 00:15:32.970 The -- 00:15:32.970 --> 00:15:41.755 So it's just that, you know, just to put it in its starkest form, in the end, this is a question about the nature of SSI, right? If you're right, you win. 00:15:41.755 --> 00:15:44.175 If the government is right, the government wins. 00:15:44.175 --> 00:15:57.745 In the sense of is SSI a program that gives you lots of different kinds of benefits once you qualify for it, one might go away, but you retain the others, or is SSI just a monthly check that you get in the mail? 00:15:57.745 --> 00:16:00.005 I think that is a key part of the analysis. 00:16:00.005 --> 00:16:07.580 I would hesitate to say it's everything because I think you still have to come back to the text of DSH, and I think yo u still have to come back to the purpose of DSH. 00:16:07.580 --> 00:16:07.730 And -- 00:16:07.730 --> 00:16:08.240 And so -- 00:16:08.240 --> 00:16:08.670 Well, your -- 00:16:08.670 --> 00:16:10.225 -- so how -- go ahead. 00:16:10.225 --> 00:16:10.570 Go ahead. 00:16:10.570 --> 00:16:20.955 I mean -- I mean, your lead argument is -- and it's -- you know, it's catchy when you read it -- that the phrase "entitled" -- "entitled to benefits" can't mean two things. 00:16:20.955 --> 00:16:28.890 But following up on what Justice Kagan was asking, I don't see how th e government's argument does that at all. 00:16:28.890 --> 00:16:32.260 What you're saying seems to me, when you think about it, terribly superficial. 00:16:32.260 --> 00:16:34.620 It's the nature of the entitlement. 00:16:34.620 --> 00:16:42.860 So "entitled to benefits" can mean exactly the same thing in these two contexts, but it -- you know, "entitle" -- it's the nature of the entitlement. 00:16:42.860 --> 00:16:48.655 So, if the entitlement is different under Medicare and under SSI, then that argument falls apart. 00:16:48.655 --> 00:16:51.420 So I think there's two ways to look at the government's argument. 00:16:51.420 --> 00:16:54.330 One is it's interpreting "entitled" to mean two different things. 00:16:54.330 --> 00:16:57.000 I think, during the Empire Health argument, that was a concern. 00:16:57.000 --> 00:17:00.970 It was Problem 1 with the government's interpretation there. 00:17:00.970 --> 00:17:11.180 But I think, even if you don't read it that way and you read it as focusing just on the qualifications for the program and SSI being different, it doesn't hold up on that ground either. 00:17:11.180 --> 00:17:21.350 So you can take, you know, everything about the same word meaning the same thing and put it to the side and just focus on the SSI statute, and it doesn't look different in any way that matters to then Medicare Part A. 00:17:21.350 --> 00:17:21.440 Okay. 00:17:21.440 --> 00:17:23.540 So we get -- we get to those arguments. 00:17:23.540 --> 00:17:28.415 Now another argument that you have is that this is like Empire Health. 00:17:28.415 --> 00:17:46.190 But isn't Medicare different from SSI in at least two very important effect -- respects that Empire Health emphasized? SSI payments are not automatic and they're not enduring. 00:17:46.190 --> 00:17:49.710 Isn't that -- that true? And that is not true of Medicare? 00:17:49.710 --> 00:17:56.980 They --there are differences, but the differences, I think, actually, as far as it not being automatic point in our direction. 00:17:56.980 --> 00:18:11.410 So, yes, you need to apply to be entitled to SSI benefits, but I think that helps our interpretations because, basically, there are application bookends on either side that show that there is a program that you are eligible for. 00:18:11.410 --> 00:18:15.630 And so the difference here is Medicare Part A, you're automatically entitled. 00:18:15.630 --> 00:18:17.030 Here, you have to apply. 00:18:17.030 --> 00:18:19.390 But, once you apply, then we're in the same world. 00:18:19.390 --> 00:18:25.610 Then you are entitled to SSI benefits and you're entitled to them until you've been terminated from the program. 00:18:25.610 --> 00:18:31.800 The statute distinguishes between suspensions and terminations, and the regulations do the same thing. 00:18:31.800 --> 00:18:41.800 Part -- subpart (m) of the regulations separate out suspensions from terminations, and you can't be suspended unless there's something to be suspended from. 00:18:41.800 --> 00:18:44.930 And so I think the application distinction works in our favor. 00:18:44.930 --> 00:18:47.040 The -- keep going. Sorry. 00:18:47.040 --> 00:18:47.575 Oh, no. 00:18:47.575 --> 00:19:01.390 Well, I think the question from both Justice Kagan and Justice Alito, at least as I understand them, is -- boils down to is SSI similar in relevant respects to Medicare for purposes of interpreting this statutory provision. 00:19:01.390 --> 00:19:04.795 And I think the government emphasizes two things, maybe more. 00:19:04.795 --> 00:19:21.270 One, that Medicare's an insurance program and SSI, they say, is not. And, two, at least the big picture that I understand, people drop in and out of SSI more readily than they do on Medicare. 00:19:21.270 --> 00:19:29.110 And I think how we analyze those two questions determines how similar SSI is to Medicare at least as I understand it. 00:19:29.110 --> 00:19:35.975 So I want you to focus on the -- insurance description and the falling in and out as distinct from Medicare. 00:19:35.975 --> 00:19:36.300 Sure. 00:19:36.300 --> 00:19:41.260 So, on the insurance distinction, this is -- you know, it's not health insurance, obviously, but it's income insurance. 00:19:41.260 --> 00:19:44.390 It's not just this monthly payment to strangers on the street. 00:19:44.390 --> 00:19:45.010 The whole concept 00:19:45.010 --> 00:19:49.395 What do you mean by the word --I'm going to ask the government this too --what do you mean by the word "insurance"? 00:19:49.395 --> 00:19:50.780 Almost assurance. 00:19:50.780 --> 00:19:59.845 So -- so the -- the concept here is that you're guaranteed a minimum income for the calendar year once you're part of the program, once you've applied and been accepted. 00:19:59.845 --> 00:20:12.745 I think of it as if, you know, you have a college graduate whose parents say congratulations, go get yourself an apartment, and we will send you a rent check for every month in which you don't have enough money to cover rent. 00:20:12.745 --> 00:20:27.075 And so, if you have a job and you're making money and you can cover it, you're on your own, but if you come up short, we'll cover the difference, and we'll do that until you've been able to string together 12 months where you've been able to pay for your own rent, at which point deal's off, you're on your own. 00:20:27.075 --> 00:20:33.010 That's really what the SSI program is. So it's not just the cash payment in a given month or making up the difference. 00:20:33.010 --> 00:20:38.020 It's knowing that you're guaranteed this minimum income for as long as you're in the program. 00:20:38.020 --> 00:20:51.620 And then the -- the dropping out, I think one of the government's suggestions is you can drop out of SSI more readily and somehow that, for purposes of the questions Justice Kagan and Justice Alito were asking, makes SSI relevantly different. 00:20:51.620 --> 00:20:52.210 Right. 00:20:52.210 --> 00:20:55.830 So I don't think that's a distinction either. 00:20:55.830 --> 00:21:03.120 I'm not sure, even if it were, it would matter, but I don't think it's a distinction because there's two kind s of eligibility and it depends what the government is talking about. 00:21:03.120 --> 00:21:08.875 There's program eligibility, and individuals do not drop out of the program all that often. 00:21:08.875 --> 00:21:23.250 I think the --the statistics the government give -- and it's in the Joint -- 25 Appendix from the court of appeals; it's at page -- is that about 350,000 people in -- I think it's in 2009 were terminated for excess income. 00:21:23.250 --> 00:21:27.140 First of all, that's about 5 percent of the population. 00:21:27.140 --> 00:21:40.160 But, if you look more closely at those who are likely to be Medicare-eligible, so over the age of 65, and that's at the bottom of that page, it's roughly about 35,000 people total who drop out. 00:21:40.160 --> 00:21:45.680 The reality is most stay in this program for a long time, and so I think it's actually quite stable. 00:21:45.680 --> 00:21:47.545 Do people drop out of Medicare -- 00:21:47.545 --> 00:21:49.740 I think people drop out 00:21:49.740 --> 00:21:49.860 -- when -- 00:21:49.860 --> 00:21:50.980 -- when they're no longer disabled -- 00:21:50.980 --> 00:21:51.170 Correct. 00:21:51.170 --> 00:21:52.450 -- would be the primary example. 00:21:52.450 --> 00:21:52.510 Yeah. 00:21:52.510 --> 00:21:56.580 And so I --I think, you know, once you get down to it, it's pretty comparable. 00:21:56.580 --> 00:22:10.680 And then, if you look at payment eligibility in terms of, like, the month-to-month payments, in Empire Health, it was recognized that people might not get payment for particular services because they've exceeded the 90 days, for example, or because a primary payor is paying. 00:22:10.680 --> 00:22:14.670 So there's some lack of stability when it comes to payment for Medicare Part A. 00:22:14.670 --> 00:22:24.870 And then you translate that over to SSI and they again point to statistics -- and this is the prior page, 146, of the Joint Appendix from the court of appeals -- and that number is higher. 00:22:24.870 --> 00:22:32.220 It's about 600 -- I think 650,000 individuals in 2009 who were suspended for excess income. 00:22:32.220 --> 00:22:43.350 But, again, if you focus on the over-65 number, it's about 71,000 people. And so, even when it comes to payment eligibility, it's not nearly as variable as they suggest it is. 00:22:43.350 --> 00:22:45.800 Ms. Sherry, if we might take a hypothetical. 00:22:45.800 --> 00:22:58.000 Let --let's say I have a 70-year-old person who's deemed eligible for SSI because of his income but then certain months in the year makes over a million dollars a month. 00:22:58.000 --> 00:23:01.000 I know that's unlikely, but let's just suppose it. 00:23:01.000 --> 00:23:03.990 Is he entitled to benefits for the full year? 00:23:03.990 --> 00:23:09.680 I would -- I --I would say he probably doesn't meet the resource qual- -- so -- so you need to have -- 00:23:09.680 --> 00:23:11.750 He's not eligible for those months. 00:23:11.750 --> 00:23:14.350 Well, he's probably not eligible to begin with, but if -- even if we assume he's -- 00:23:14.350 --> 00:23:15.280 But --no, but let's -- let's just -- 00:23:15.280 --> 00:23:16.310 --spending the million dollars -- 00:23:16.310 --> 00:23:18.090 No, no, let's assume at the beginning of the year -- 00:23:18.090 --> 00:23:18.210 Yeah. 00:23:18.210 --> 00:23:27.745 -- for some months, he is indeed entitled to and eligible for benefits and -- and he gets them, but then, in certain months, he makes well in excess of the -- the income threshold. 00:23:27.745 --> 00:23:28.390 So -- so he -- 00:23:28.390 --> 00:23:31.700 Is he entitled to benefits under your view for the full year? 00:23:31.700 --> 00:23:35.480 He -- he is until he's terminated from -- from the program. 00:23:35.480 --> 00:23:37.570 And I think there's one good explanation for it -- 00:23:37.570 --> 00:23:37.750 So he's -- 00:23:37.750 --> 00:23:38.280 -- and one reason -- 00:23:38.280 --> 00:23:39.440 -- entitled to benefits -- 00:23:39.440 --> 00:23:39.580 Yes. 00:23:39.580 --> 00:23:41.530 -- even though he's not eligible for them? 00:23:41.530 --> 00:23:48.760 He's not eligible for the cash payment, and -- and let's just assume he's also not eligible for, you know, Medicaid continuation and -- and vocational rehab. 00:23:48.760 --> 00:23:56.050 He's still entitled to benefits, and that's because of the concept of conditional entitlement that was at issue in Empire Health as well. 00:23:56.050 --> 00:24:00.030 Entitlement coexists with limitations on payment. 00:24:00.030 --> 00:24:01.845 That's what the Court said in Empire Health. 00:24:01.845 --> 00:24:07.430 And the statutory language the Court relied on for that in Medicare Part A is also present in SSI. 00:24:07.430 --> 00:24:21.250 And so, if you look a t the SSI statute, 1381a, it talks about being eligible for payment or I think it says "paid subject to the provisions of this chapter" and then the comparable language in Medicare Part A. 00:24:21.250 --> 00:24:25.050 I mean, it seems to me Medicare is quite different from this in that respect. 00:24:25.050 --> 00:24:37.320 I mean, the -- there were lots of arguments in Empire Health, but one of the main ones was, even if you had reached the cap on hospital care, there were other kinds of care that you could access under Medicare. 00:24:37.320 --> 00:24:46.280 So you had reached the cap in terms of your hospital stay, but you could get outpatient treatment for some other condition. 00:24:46.280 --> 00:24:48.985 So the Medicare was not going away. 00:24:48.985 --> 00:25:02.335 But, here, the only thing that there is, which really is the cash payment, is going away in the months in which the person receives more than the threshold income, isn't that right? 00:25:02.335 --> 00:25:03.025 So, I -- I mean -- 00:25:03.025 --> 00:25:04.300 There's nothing left? 00:25:04.300 --> 00:25:27.340 --again, assuming this person is not eligible for Medicaid continuation and vocational rehab, there's the guarantee, but I -- I think this is where you have to take a step back and look at the purposes of DSH because I think you can come up with this hypothetical example, but I do think it pales in comparison to the real -world categories of low-income individuals who are left out if you're looking at the two on a scale. 00:25:27.340 --> 00:25:34.975 And even with the $1 million hypothetical, that person -- you know, DSH is not looking at low income for low income's sake. 00:25:34.975 --> 00:25:41.390 It's looking at it because it's trying to identify a class of individuals who are less healthy and more costly for the hospital. 00:25:41.390 --> 00:25:51.880 And so, if that person was low income enough to qualify in the first place, just because he's getting a million dollars in one month is not going to change his health overnight in a way that's going to matter to the hospital's bottom line. 00:25:51.880 --> 00:25:53.050 Thank you -- thank you, counsel. 00:25:53.050 --> 00:25:56.030 Justice Thomas, anything? Justice Alito? 00:25:56.030 --> 00:26:43.920 Assume -- assume that the vocational rehabilitation benefit that you th ink is a part of Title XVI and the 1382h that you think is a part of it, how about if we disagree that the vocational rehab is a -- is a program run separately from Title XVI? So what are you left with? Are you left only with the argument that this is a -- and it's a powerful argument, I'm not denigrating it -- that this is an insurance program for a year, that you're guaranteed payment at least if your income is low for that year, so if you don't get it one month, you're still going to be getting it the second, third, or fourth? That sounds like a program to me too. 00:26:43.920 --> 00:26:53.040 But part of your argument that some of my colleagues are focused on is the fact that there are no other benefits for that month. 00:26:53.040 --> 00:26:53.710 Right. 00:26:53.710 --> 00:27:01.550 So, if you disagree on the non-cash benefits, then, yes, we are arguing that it is a program -- it's an income insurance program. 00:27:01.550 --> 00:27:05.920 And you don't need the non-cash benefits to agree with us on that and rule for us on that. 00:27:05.920 --> 00:27:08.835 I think it's an additional -- it's icing, so to speak. 00:27:08.835 --> 00:27:21.140 I think you do have to, though -- if you agree that there's non -cash benefits, there's no way to rule for the government because their position rests on it only being about cash. 00:27:21.140 --> 00:27:22.870 So I don't think we need the non-cash benefits to win. 00:27:22.870 --> 00:27:33.720 So why don't you spend a moment on the government's counter-arguments as to why those two provisions are not part --they're not additional benefits? 00:27:33.720 --> 00:27:33.940 Sure. 00:27:33.940 --> 00:27:39.435 So let me start with vocational rehabilitation just because I touched a little bit on Medicaid continuation already. 00:27:39.435 --> 00:27:43.840 It is a benefit provided under Ti tle -- you know, it's housed in Title XVI. 00:27:43.840 --> 00:27:47.500 You can look at 1382d, which is in Title XVI. 00:27:47.500 --> 00:27:55.340 It was 6 -- it is 1615 of the Social Security Act, so very much in Title XVI. 00:27:55.340 --> 00:28:03.055 Secondly, it is funded by Title XVI. The appropriations under 1381 is where the funding comes from. 00:28:03.055 --> 00:28:08.460 And you qualify it if you are a Title XVI disability beneficiary. 00:28:08.460 --> 00:28:19.560 And so the person who is in the SSI program is getting reimbursement or the state is getting reimbursement for that benefit because they are covered by -- by Title XVI. 00:28:19.560 --> 00:28:22.820 So in every which way it's a Title XVI benefit. 00:28:22.820 --> 00:28:35.345 The government's counter-argument, putting the non-cash issue to the side, is that it shouldn't qualify as under Title XVI essentially because it's also under Title XI and it's also under states. 00:28:35.345 --> 00:28:39.470 That doesn't hold up because it reads "under" as exclusively under. 00:28:39.470 --> 00:28:47.650 And yet, in DSH itself, they excluded state supplementation benefits, which are not exclusively under Title XVI. 00:28:47.650 --> 00:28:49.540 They're provided by states. 00:28:49.540 --> 00:28:55.530 Yet Congress understood them to be benefits under Title XVI such that they needed to be excluded. 00:28:55.530 --> 00:29:00.200 And so there's a real inconsistency between those two positions. 00:29:00.200 --> 00:29:13.710 On Medicaid continuation, almost all of the same arguments, you can find it in 1382h. It is 1619(b), and it is also triggered by eligibility in the SSI program. 00:29:13.710 --> 00:29:25.810 But, on that one too, you can look throughout Title XVI and see it referred to as a benefit under 1382h. --1383j is one place to look. 00:29:25.810 --> 00:29:29.750 I believe it's also in subsection (k) and subsection (p). 00:29:29.750 --> 00:29:30.780 Thank you. 00:29:30.780 --> 00:29:34.140 Justice Kagan? Justice Gorsuch? Justice Kavanaugh? 00:29:34.140 --> 00:29:35.930 I have a couple questions. 00:29:35.930 --> 00:29:46.660 On Justice Gorsuch's hypothetical about the SSI millionaire, I mean, that's unlikely to happen in the real world, but it could happen. 00:29:46.660 --> 00:29:59.640 But couldn't it also happen that someone on Medicare has, you know, golden insurance, private insurance that's going to cover them, so they never really need Medicare even though they're in the Medicare program? 00:29:59.640 --> 00:30:00.280 Yes. 00:30:00.280 --> 00:30:04.030 And I -- I suspect that's -- that's somewhat more -- more likely than the million -dollar -- 00:30:04.030 --> 00:30:07.150 It -- it is more likely why? Why is -- I think it is more likely. 00:30:07.150 --> 00:30:08.365 Why is that more likely? 00:30:08.365 --> 00:30:11.660 Well, because everyone is entitled to Medicare when they -- when they turn 65. 00:30:11.660 --> 00:30:22.780 And some who have turned 65 are -- are quite well off and they have amazing insurance. And so I --I think the million-dollar hypothetical is a hypothetical for -- for a reason. 00:30:22.780 --> 00:30:41.330 The reality is the individuals who do not get payments in certain months because of excess income are probably not the millionaire or the lottery winner or any of those other hypotheticals you can come up with but, instead, are individuals who slightly pop over the income threshold by a small amount in a month, only to fall back under it the following month. 00:30:41.330 --> 00:30:48.415 And that's the reason why there are so few that are terminated from the program, because they can't string together 12 months of income stability. 00:30:48.415 --> 00:30:58.340 So, for people who do pop over for a month, over the limit, most of them stay in the program because they're back under the limit at some point, is that correct -- 00:30:58.340 --> 00:30:58.840 That's correct. 00:30:58.840 --> 00:30:59.390 -- percentage -wise? 00:30:59.390 --> 00:30:59.950 That's correct. 00:30:59.950 --> 00:31:01.460 A large percentage of them, right? 00:31:01.460 --> 00:31:03.090 Yes, a very significant percentage. 00:31:03.090 --> 00:31:10.330 Then, on Medicare as well, it was going away. 00:31:10.330 --> 00:31:18.195 I -- I mean, I might have a different understanding --in fact, it's almost certain I have a different understanding of Empire than Justice Kagan does, but -- (Laughter.) 00:31:18.195 --> 00:31:36.110 -- I thought -- I thought Medicare was going away for that day if you had the private insurance, but we nonetheless -- the Court nonetheless said you'r e still entitled to Medicare even though you didn't have any Medicare coverage for that day. 00:31:36.110 --> 00:31:37.190 Is that -- 00:31:37.190 --> 00:31:37.770 That's right. 00:31:37.770 --> 00:31:45.910 And I think, you know, there's a couple different things that come in there, but I think that's where the conditional entitlement comes in. It's the season ticket holder example from the Empire Health briefing. 00:31:45.910 --> 00:31:46.100 Okay. 00:31:46.100 --> 00:31:47.370 And then last question. 00:31:47.370 --> 00:31:59.940 This is very technical, but what happens in the real world may affect how plausible it is that Congress would have chosen one interpretation over another. 00:31:59.940 --> 00:32:08.360 So, if you lose, what's going to happen, realistically, to rural hospitals and urban hospitals that serve safety net -- as safety nets? 00:32:08.360 --> 00:32:08.620 Yeah. 00:32:08.620 --> 00:32:12.925 So, here, I would point to the amicus briefs, which -- which go through it in some detail. 00:32:12.925 --> 00:32:44.345 The reason Congress created the DSH adjustment to begin with was because of the higher cost of treating a low-income population, and hospitals that treat a disproportionate share need this money in order to stay afloat for --for many hospitals. And for others, the point is to provide -- to incentivize them to provide the services that are needed to service this vulnerable and at-risk population, and without a proper reimbursement under the formula, tha t's going to be very difficult and has been very difficult for hospitals to do. 00:32:44.345 --> 00:32:48.820 And hospitals will close, or do you think that's not realistic? 00:32:48.820 --> 00:32:49.610 No, I think that is -- 00:32:49.610 --> 00:32:52.850 An amicus brief suggests rural hospitals are going to close. 00:32:52.850 --> 00:32:54.220 I -- I think that is realistic. 00:32:54.220 --> 00:33:10.015 I mean, the amicus briefs go in some detail about how close the margins are and how difficult it is and how significant the -- the DSH adjustment and the particular amount of the DSH adjustment is not only to DSH but to other programs that piggyback off of eligibility for DSH. 00:33:10.015 --> 00:33:10.390 Okay. 00:33:10.390 --> 00:33:11.385 Thank you. 00:33:11.385 --> 00:33:13.500 Justice Barrett? Justice Jackson? 00:33:13.500 --> 00:33:29.025 Yes. Justice Kagan asked you how close is this to Medicare given the way the DSH statute is constructed, and I guess I'm a little concerned that how close it is or how much it looks like or how much it operates like is really beside the point. 00:33:29.025 --> 00:33:54.780 So, if we set aside Medicare for a second and we just look at this program, and if we assume, as Justice Kagan does, that this is just about the cash payment, I am wondering about the distinction that you're drawing between eligibility for the program, which we can call entitlement, versus eligibility for the payment. 00:33:54.780 --> 00:34:10.325 As I understood it, eligibility for the program, or entitlement, gives you the assurance that in any month during the next year when you fall below the income cap, the government will send you a check. 00:34:10.325 --> 00:34:12.080 So that's what's left. 00:34:12.080 --> 00:34:19.835 Even in a month where you don't get a check, you know that maybe next month you will if you don't have this extra cash coming in. 00:34:19.835 --> 00:34:20.920 Am I right about that? 00:34:20.920 --> 00:34:22.910 That's absolutely right. And for more than a year. 00:34:22.910 --> 00:34:30.390 You have that assurance for so long as you haven't been able to string together 12 consecutive months of higher income. 00:34:30.390 --> 00:34:40.110 And you also have the government working for you in that effort, right? So, when you apply, you apply to this program, and you have to meet the eligibility criteria. 00:34:40.110 --> 00:34:45.440 I'm looking at the statute, and it gives the criteria of you being aged or blind or disabled. 00:34:45.440 --> 00:34:53.645 Do you have a certain income? Do you have certain resources? And the statute says: Shall be an eligible individual for the purposes of this subchapter. 00:34:53.645 --> 00:35:10.560 Setting aside all the other benefits, if I'm just focusing on the cash benefit, I would think one of the things that comes with that is the government, every month, is monitoring your finances, and in any month in which you go below the payment, they will send you a check automatically. 00:35:10.560 --> 00:35:11.610 Is that right? 00:35:11.610 --> 00:35:13.160 I think that's right in part. 00:35:13.160 --> 00:35:14.600 And the government can correct me if I'm wrong. 00:35:14.600 --> 00:35:19.700 I think, when you fall below it, you might have to make a phone call and request reinstatement. 00:35:19.700 --> 00:35:23.410 That's a regulatory requirement. It's not in the statute itself. 00:35:23.410 --> 00:35:23.510 But -- 00:35:23.510 --> 00:35:24.760 But you're entitled to do that? 00:35:24.760 --> 00:35:25.220 Absolutely. 00:35:25.220 --> 00:35:30.050 You know, X person on the street who's not enrolled in the program can't just ask the government for money. 00:35:30.050 --> 00:35:35.920 You get to do that because you are an entitled person and you met those original criteria, right? 00:35:35.920 --> 00:35:36.500 Exactly. 00:35:36.500 --> 00:35:45.235 And that is the real difference, right, the -- the person on the street, right? This is not a case where every month you're just walking up to a window, filling out a form, and then walking aw ay with a check. 00:35:45.235 --> 00:35:47.820 Once you're in the program, you're in the program. 00:35:47.820 --> 00:35:56.980 And you get the benefit of picking up the phone and calling the government and saying: Please send me my check -- or the government does it automatically -- in any month in which you are entitled to --to get it, right? 00:35:56.980 --> 00:35:57.320 Right. 00:35:57.320 --> 00:36:05.990 And you authorize the government to have access to your financial records for so long as you're in the program so they can continue to check your income against the guaranteed monthly income. 00:36:05.990 --> 00:36:06.645 Thank you. 00:36:06.645 --> 00:36:08.615 Thank you, counsel. 00:36:08.615 --> 00:36:10.450 Mr. McDowell. 00:36:10.450 --> 00:36:26.530 Thank you, Mr. Chief Justice, and may it please the Court: The DSH provision is designed to compensate hospitals for serving a disproportionate share of low-income patients. And in the Medicare fraction, Congress used a patient's entitlement to SSI benefits as a proxy for determining whether the patient is low income. 00:36:26.530 --> 00:36:36.980 SSI benefits are monthly cash payments made by SSA when a person meets eligibility requirements in a particular month, including the requirement of having low income in that month. 00:36:36.980 --> 00:36:49.490 Thus, as HHS has consistently recognized since Congress enacted the Medicare fraction, a person is entitled to SSI benefits only when he satisfies the requirements for a cash payment during the month of his hospital stay. 00:36:49.490 --> 00:36:53.730 That interpretation is fully consistent with the one this Court upheld in Empire Health. 00:36:53.730 --> 00:37:24.270 The Medica re fraction uses two distinct phrases, "entitled to benefits under Medicare Part A" and "entitled to SSI benefits under Title XVI." And while the word "entitled" means the same thing within both phrases, benefits under Medicare Part A are fundamentally distinct from SSI benefits under Title XVI. Petitioners claim that a person is entitled to SSI benefits even if he is not owed a cash payment during the month of his hospital stay so long as he received at least a single cash payment sometime within the year prior to his hospital stay. 00:37:24.270 --> 00:37:27.360 But SSI benefits are monthly cash paymen ts. 00:37:27.360 --> 00:37:34.275 So, if a person is not entitled to the cash payment in a particular month, he's simply not entitled to SSI benefits in that month. 00:37:34.275 --> 00:37:52.180 Petitioners also claim that SSI benefits under Title XVI include not only cash payments but also certain non-cash benefits. But those non-cash benefits are not supplemental security income benefits because they are not cash payments made by SSA, nor are they provided under Title XVI. 00:37:52.180 --> 00:38:00.225 Ultimately, Petitioners would routinely count patients as low income even though they are earning too much income to be entitled to an SSI benefit. 00:38:00.225 --> 00:38:09.790 That approach is flatly inconsistent with Congress's choice of SSI entitlement as the proxy for low-income status. I welcome the Court's questions. 00:38:09.790 --> 00:38:21.165 Petitioner argues that the whole purpose of this formula is to determine low-income population that is served, which is a good point. 00:38:21.165 --> 00:38:35.505 So the -- and that enrollment in the SSI program is only for people who are low income, even though people may fall in and out of the --the monthly payment requirement. 00:38:35.505 --> 00:38:38.820 Why isn't she right -- why isn't Petitioner right? 00:38:38.820 --> 00:38:41.030 So, Justice Thomas, I think our position -- 00:38:41.030 --> 00:38:42.850 I understand the statutory argument. 00:38:42.850 --> 00:38:43.185 Yeah. 00:38:43.185 --> 00:38:51.500 So what difference does it make in a practical sense if your reading is accepted or her reading is accepted? 00:38:51.500 --> 00:38:51.850 Right. 00:38:51.850 --> 00:38:59.915 So I think ours gets to the purpose of the DSH provision better because ours is more precise at capturing low-income people in the month of their hospitalization. 00:38:59.915 --> 00:39:05.300 We're only going to count someone as low income if they've established that they are low income in the month of their hospitalization. 00:39:05.300 --> 00:39:09.770 But why does that matter? I -- I --I'm so confused by your argument, I have to say. 00:39:09.770 --> 00:39:30.305 I'm struggling to understand why an individual's eligibility for payment in a particular month has any bearing on the goals of compensating hospitals for the higher cost of low-income people. So let me give you a hypothetical. Imagine a man who's lived well below the poverty line for his entire life. 00:39:30.305 --> 00:39:34.950 He has a range of health conditions that result from that kind of upbringing. 00:39:34.950 --> 00:39:43.460 When he turns 65 in January, he applies for SSI payments and starts receiving them in February pursuant to the statute and the regulations. 00:39:43.460 --> 00:39:46.940 Let's say in June he comes into a bit of cash. 00:39:46.940 --> 00:39:48.370 He inherits some jewelry. 00:39:48.370 --> 00:39:49.380 He sells it. 00:39:49.380 --> 00:40:04.545 He picks up an extra shift at work. He gets money back from a friend who owes it to him, okay? We can all agree that if the extra cash he gets in June brings him above the threshold, he doesn't get a cash payment that month because now he's above the threshold. 00:40:04.545 --> 00:40:11.990 But the Medicare fraction, I thought, was not about how much cash a patient had in any particular month. 00:40:11.990 --> 00:40:15.200 It's about how costly it would be to treat this person. 00:40:15.200 --> 00:40:22.510 And I don't understand why it is less or more costly in June, when he has the heart attack, than in May, when he didn't -- 00:40:22.510 --> 00:40:22.930 Your Honor -- 00:40:22.930 --> 00:40:24.370 -- when he doesn't get the cash payment. 00:40:24.370 --> 00:40:43.430 So, Your Honor, I think that understanding of the statute rests on an erroneous premise in Petitioners' argument, which is their misreading of subsection (a), which is entitled "Eligible Individual Under 1382." They think that means you look back to the person's income over the last calendar year in the application to see has this person been poor for the last calendar year. 00:40:43.430 --> 00:40:45.950 If that were how the statute worked, I would agree with you that -- 00:40:45.950 --> 00:40:57.120 But why isn't that the part of the statute that DSH is referring to? I mean, it's clear that that part of the statute says this person, the person for the year, shall be eligible under SSI. 00:40:57.120 --> 00:40:58.705 That's in the statute. 00:40:58.705 --> 00:41:16.735 So what I'm asking is, doesn't it make more sense that the DSH program, which is trying to capture people who are low income in this general sense because they will have more serious and more difficult to treat, costly to treat, health issues, why isn't it referring to (a)? 00:41:16.735 --> 00:41:19.630 And what I -- what I'm saying is (a) -- they are misreading (a). 00:41:19.630 --> 00:41:20.570 That is not how (a) works. 00:41:20.570 --> 00:41:20.820 Okay. 00:41:20.820 --> 00:41:33.405 So let me -- I thought the choice was between (a) and (b). You say the DSH program is referencing (b), which is --or, sorry, (c), excuse me, which is the provision that says you get a payment in a particular month. 00:41:33.405 --> 00:41:45.170 And my question to you is, why would Congress care about whether you're getting a payment in a particular month as the marker of whether you are low income and it's more costly? 00:41:45.170 --> 00:41:53.910 Because that is the entirety of the SSI statute. (a) does not work the way that Your Honor is posting. (a) is establishing the income limit for SSI eligibility. 00:41:53.910 --> 00:41:59.615 It's phrased in terms of a calendar rate, but it is set monthly according to subsection (c)(1). 00:41:59.615 --> 00:42:04.865 And just to give you -- just to explain why textually that has to be right, Section 1382b is about -- 00:42:04.865 --> 00:42:06.830 I'm not asking you a textual argument. 00:42:06.830 --> 00:42:08.380 I'm ask --I'm just asking you a purpose. 00:42:08.380 --> 00:42:21.600 You -- your argument seems to result in people who get cash payments who have the exact same income level as someone who didn't get a cash payment, one is counted and one is not. 00:42:21.600 --> 00:42:28.020 And what I'm asking you is, why would Congress have set up the DSH program to make that distinction? 00:42:28.020 --> 00:42:31.960 Because Congress picked up the SSI entitlement proxy as an off-the-rack proxy. 00:42:31.960 --> 00:42:33.390 It was a preexisting metric. 00:42:33.390 --> 00:42:35.930 It existed in 19 -- since 1972. 00:42:35.930 --> 00:42:37.150 Congress was acting in 1986. 00:42:37.150 --> 00:42:40.060 It just picked up this indirect proxy measure. 00:42:40.060 --> 00:42:42.270 It doesn't have to be perfect a hundred percent of the time. 00:42:42.270 --> 00:42:46.750 Theirs is not perfect a hundred percent of the time either, as Justice Gorsuch's hypothetical shows. 00:42:46.750 --> 00:42:53.240 And my point is that ours is more precise at capturing low-income people because we are looking to whether they establish low-income status and -- 00:42:53.240 --> 00:42:58.750 So let's talk to that, okay, whether it is more precise. 00:42:58.750 --> 00:43:01.255 Let me give you the hypotheticals. 00:43:01.255 --> 00:43:11.050 Someone's eligible, joins SSI in January, is hospitalized in January, but they receive no cash payment in January. 00:43:11.050 --> 00:43:15.970 They're going to get it on February 1 because they just joined the program. 00:43:15.970 --> 00:43:17.540 Are you including those people? 00:43:17.540 --> 00:43:22.930 So, if they just joined, under the statute, those would not -- those people would not be entitled to benefits in the first month. 00:43:22.930 --> 00:43:23.730 And I think that -- 00:43:23.730 --> 00:43:30.570 Even though they are eligible because their -- they didn't make more money? They should be. 00:43:30.570 --> 00:43:33.765 It's only they happen to join the program the month they got sick? 00:43:33.765 --> 00:43:35.210 Your Honor, they're not eligible. 00:43:35.210 --> 00:43:36.680 That's an eligibility criteria. 00:43:36.680 --> 00:43:40.830 It says you're not eligible for payment until the second month after your application, and it's basically -- 00:43:40.830 --> 00:43:40.980 All right. 00:43:40.980 --> 00:43:45.045 So it's not capturing people with low income even. 00:43:45.045 --> 00:43:45.460