John G. Roberts, Jr.: We'll hear argument first this morning in Case 23-715, Advocate Christ Medical Center versus Becerra.
John G. Roberts, Jr.: Ms. Sherry.
Melissa Arbus Sherry: Mr. Chief Justice, and may it please the Court: The same words in the same sentence should have the same meaning.
Melissa Arbus Sherry: Today, we are talking about the words "entitled to benefits" in the DSH adjustment.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: A person qualifies for the SSI program when she applies and is determined eligible, and that eligibility lasts until it is terminated.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: But Congress created what it called a national program, and it created a program of income insurance.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: Nothing is terminated, and other benefits remain available.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: The government's interpretation simply does not count that low-income population.
Melissa Arbus Sherry: It does not count the low -income Medicaid patient coming out of a nursing home.
Melissa Arbus Sherry: It does not count the low-income patient waiting for her first check.
Melissa Arbus Sherry: And the list of those it does not count goes on and on.
Melissa Arbus Sherry: A DSH proxy that does not measure the low-income population is no proxy at all. I welcome the Court's questions.
Clarence Thomas: Are there other benefits other than cash under -- under, what is it, Title XVI?
Melissa Arbus Sherry: There are.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: You know, the government's response to that, I think, is twofold.
Melissa Arbus Sherry: It's to say that non-cash is not income but probably more so to say that those aren't benefits under Title XVI.
Melissa Arbus Sherry: But they're both housed in Title XVI. They're both triggered by being program-eligible under Title XVI.
Melissa Arbus Sherry: And especially when it comes to Medicaid continuation, it's referred to as a benefit under 1382h, which is in Title XVI.
Melissa Arbus Sherry: The --
Sonia Sotomayor: 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?
Melissa Arbus Sherry: Yeah.
Melissa Arbus Sherry: So --so this comes out of the SSI statute, and it makes sense when you're thinking of -- of SSI.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: Instead, you'll get this $30 comfort payment but only if your income is actually under $30.
Melissa Arbus Sherry: And for most people, because you get a Social Security check, that's not going to be the case.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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 --
Sonia Sotomayor: 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.
Sonia Sotomayor: 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.
Melissa Arbus Sherry: Yeah, and -- and I think even less than that.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: But whatever the answer to that question is, it's specific to SSI.
Melissa Arbus Sherry: 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.
Sonia Sotomayor: Thank you, counsel.
Amy Coney Barrett: 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?
Melissa Arbus Sherry: Yes.
Amy Coney Barrett: But you're not challenging any of those, and the D.C. Circuit held that those challenges were waived?
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: The challenge that we have is just to what the interpretation of the language should be.
Melissa Arbus Sherry: 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 --
Amy Coney Barrett: But, if you lose, which let's just assume --
Melissa Arbus Sherry: Yes.
Amy Coney Barrett: -- 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?
Melissa Arbus Sherry: I think it depends.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: And that's at pages 47 and 48 of their brief.
Melissa Arbus Sherry: 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.
Amy Coney Barrett: 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.
Melissa Arbus Sherry: Yeah.
Melissa Arbus Sherry: So I --I'm curious as to what the government's view are.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: They're just not payment-eligible in a particular month. They're not due a payment in that month.
Melissa Arbus Sherry: And the government, I think, admits that all of those individuals fall out under their approach too.
Melissa Arbus Sherry: It includes those in their first month of eligibility.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: Those individuals would not be counted.
Melissa Arbus Sherry: Also in the other category, there's individuals who are in prison, who also aren't counted because they're not due a check.
Melissa Arbus Sherry: 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.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: I mean, I sort of conceive of other benefits programs in the federal scheme in a similar way.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: Is that sort of how your argument works?
Melissa Arbus Sherry: It is, right.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: And we're making the same distinction here that the Court made in Empire Health in that respect.
Melissa Arbus Sherry: And I think you could look --I mean, in terms of the actual textual language, you can look at a few provisions.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: And the regulations confirm that because they say that the authorization is valid until there has been a terminating event.
Ketanji Brown Jackson: 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 --
Melissa Arbus Sherry: Trying to get at the larger group of individuals.
Ketanji Brown Jackson: 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?
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: Both are within Title XVI.
Elena Kagan: 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.
Elena Kagan: 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.
Elena Kagan: I mean, it did a sort of micro-analysis of the Medicare statute and its structure and its purposes and its text.
Elena Kagan: 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?
Melissa Arbus Sherry: Partially. So I want to clarify.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: You need to do that to determine whether someone qualifies for a program.
Melissa Arbus Sherry: 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.
Elena Kagan: 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?
Melissa Arbus Sherry: I -- I think that's true if you focus on -- on benefits.
Melissa Arbus Sherry: And the only thing I'm pushing back on -- I would agree with you.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: But "entitled to" is not a term of art in the SSI statute.
Melissa Arbus Sherry: It's rarely used.
Melissa Arbus Sherry: And so that doesn't work.
Elena Kagan: I mean, just to put this --
Melissa Arbus Sherry: But then the other --
Elena Kagan: -- 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.
Elena Kagan: Let's just say that.
Elena Kagan: And I know you have a thousand objections to that.
Elena Kagan: 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.
Melissa Arbus Sherry: Right.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Elena Kagan: Yeah.
Brett M. Kavanaugh: The --
Elena Kagan: 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.
Elena Kagan: If the government is right, the government wins.
Elena Kagan: 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?
Melissa Arbus Sherry: I think that is a key part of the analysis.
Melissa Arbus Sherry: 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.
Brett M. Kavanaugh: And --
Melissa Arbus Sherry: And so --
Samuel A. Alito, Jr.: Well, your --
Brett M. Kavanaugh: -- so how -- go ahead.
Brett M. Kavanaugh: Go ahead.
Samuel A. Alito, Jr.: 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.
Samuel A. Alito, Jr.: But following up on what Justice Kagan was asking, I don't see how th e government's argument does that at all.
Samuel A. Alito, Jr.: What you're saying seems to me, when you think about it, terribly superficial.
Samuel A. Alito, Jr.: It's the nature of the entitlement.
Samuel A. Alito, Jr.: 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.
Samuel A. Alito, Jr.: So, if the entitlement is different under Medicare and under SSI, then that argument falls apart.
Melissa Arbus Sherry: So I think there's two ways to look at the government's argument.
Melissa Arbus Sherry: One is it's interpreting "entitled" to mean two different things.
Melissa Arbus Sherry: I think, during the Empire Health argument, that was a concern.
Melissa Arbus Sherry: It was Problem 1 with the government's interpretation there.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Samuel A. Alito, Jr.: Okay.
Samuel A. Alito, Jr.: So we get -- we get to those arguments.
Samuel A. Alito, Jr.: Now another argument that you have is that this is like Empire Health.
Samuel A. Alito, Jr.: 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.
Samuel A. Alito, Jr.: Isn't that -- that true? And that is not true of Medicare?
Melissa Arbus Sherry: They --there are differences, but the differences, I think, actually, as far as it not being automatic point in our direction.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: And so the difference here is Medicare Part A, you're automatically entitled.
Melissa Arbus Sherry: Here, you have to apply.
Melissa Arbus Sherry: But, once you apply, then we're in the same world.
Melissa Arbus Sherry: Then you are entitled to SSI benefits and you're entitled to them until you've been terminated from the program.
Melissa Arbus Sherry: The statute distinguishes between suspensions and terminations, and the regulations do the same thing.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: And so I think the application distinction works in our favor.
Brett M. Kavanaugh: The -- keep going. Sorry.
Melissa Arbus Sherry: Oh, no.
Brett M. Kavanaugh: 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.
Brett M. Kavanaugh: And I think the government emphasizes two things, maybe more.
Brett M. Kavanaugh: 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.
Brett M. Kavanaugh: And I think how we analyze those two questions determines how similar SSI is to Medicare at least as I understand it.
Brett M. Kavanaugh: So I want you to focus on the -- insurance description and the falling in and out as distinct from Medicare.
Melissa Arbus Sherry: Sure.
Melissa Arbus Sherry: So, on the insurance distinction, this is -- you know, it's not health insurance, obviously, but it's income insurance.
Melissa Arbus Sherry: It's not just this monthly payment to strangers on the street.
Melissa Arbus Sherry: The whole concept
Brett M. Kavanaugh: What do you mean by the word --I'm going to ask the government this too --what do you mean by the word "insurance"?
Melissa Arbus Sherry: Almost assurance.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: It's knowing that you're guaranteed this minimum income for as long as you're in the program.
Brett M. Kavanaugh: 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.
Melissa Arbus Sherry: Right.
Melissa Arbus Sherry: So I don't think that's a distinction either.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: There's program eligibility, and individuals do not drop out of the program all that often.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: First of all, that's about 5 percent of the population.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: The reality is most stay in this program for a long time, and so I think it's actually quite stable.
Brett M. Kavanaugh: Do people drop out of Medicare --
Melissa Arbus Sherry: I think people drop out
Brett M. Kavanaugh: -- when --
Melissa Arbus Sherry: -- when they're no longer disabled --
Brett M. Kavanaugh: Correct.
Melissa Arbus Sherry: -- would be the primary example.
Brett M. Kavanaugh: Yeah.
Melissa Arbus Sherry: And so I --I think, you know, once you get down to it, it's pretty comparable.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: So there's some lack of stability when it comes to payment for Medicare Part A.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: It's about 600 -- I think 650,000 individuals in 2009 who were suspended for excess income.
Melissa Arbus Sherry: 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.
Neil Gorsuch: Ms. Sherry, if we might take a hypothetical.
Neil Gorsuch: 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.
Neil Gorsuch: I know that's unlikely, but let's just suppose it.
Neil Gorsuch: Is he entitled to benefits for the full year?
Melissa Arbus Sherry: I would -- I --I would say he probably doesn't meet the resource qual- -- so -- so you need to have --
Neil Gorsuch: He's not eligible for those months.
Melissa Arbus Sherry: Well, he's probably not eligible to begin with, but if -- even if we assume he's --
Neil Gorsuch: But --no, but let's -- let's just --
Melissa Arbus Sherry: --spending the million dollars --
Neil Gorsuch: No, no, let's assume at the beginning of the year --
Melissa Arbus Sherry: Yeah.
Neil Gorsuch: -- 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.
Melissa Arbus Sherry: So -- so he --
Neil Gorsuch: Is he entitled to benefits under your view for the full year?
Melissa Arbus Sherry: He -- he is until he's terminated from -- from the program.
Melissa Arbus Sherry: And I think there's one good explanation for it --
Neil Gorsuch: So he's --
Melissa Arbus Sherry: -- and one reason --
Neil Gorsuch: -- entitled to benefits --
Melissa Arbus Sherry: Yes.
Neil Gorsuch: -- even though he's not eligible for them?
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: Entitlement coexists with limitations on payment.
Melissa Arbus Sherry: That's what the Court said in Empire Health.
Melissa Arbus Sherry: And the statutory language the Court relied on for that in Medicare Part A is also present in SSI.
Melissa Arbus Sherry: 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.
Elena Kagan: I mean, it seems to me Medicare is quite different from this in that respect.
Elena Kagan: 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.
Elena Kagan: So you had reached the cap in terms of your hospital stay, but you could get outpatient treatment for some other condition.
Elena Kagan: So the Medicare was not going away.
Elena Kagan: 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?
Melissa Arbus Sherry: So, I -- I mean --
Elena Kagan: There's nothing left?
Melissa Arbus Sherry: --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.
Melissa Arbus Sherry: And even with the $1 million hypothetical, that person -- you know, DSH is not looking at low income for low income's sake.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
John G. Roberts, Jr.: Thank you -- thank you, counsel.
John G. Roberts, Jr.: Justice Thomas, anything? Justice Alito?
Sonia Sotomayor: 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.
Sonia Sotomayor: 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.
Melissa Arbus Sherry: Right.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: And you don't need the non-cash benefits to agree with us on that and rule for us on that.
Melissa Arbus Sherry: I think it's an additional -- it's icing, so to speak.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: So I don't think we need the non-cash benefits to win.
Sonia Sotomayor: 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?
Melissa Arbus Sherry: Sure.
Melissa Arbus Sherry: So let me start with vocational rehabilitation just because I touched a little bit on Medicaid continuation already.
Melissa Arbus Sherry: It is a benefit provided under Ti tle -- you know, it's housed in Title XVI.
Melissa Arbus Sherry: You can look at 1382d, which is in Title XVI.
Melissa Arbus Sherry: It was 6 -- it is 1615 of the Social Security Act, so very much in Title XVI.
Melissa Arbus Sherry: Secondly, it is funded by Title XVI. The appropriations under 1381 is where the funding comes from.
Melissa Arbus Sherry: And you qualify it if you are a Title XVI disability beneficiary.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: So in every which way it's a Title XVI benefit.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: That doesn't hold up because it reads "under" as exclusively under.
Melissa Arbus Sherry: And yet, in DSH itself, they excluded state supplementation benefits, which are not exclusively under Title XVI.
Melissa Arbus Sherry: They're provided by states.
Melissa Arbus Sherry: Yet Congress understood them to be benefits under Title XVI such that they needed to be excluded.
Melissa Arbus Sherry: And so there's a real inconsistency between those two positions.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: I believe it's also in subsection (k) and subsection (p).
Sonia Sotomayor: Thank you.
John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
Brett M. Kavanaugh: I have a couple questions.
Brett M. Kavanaugh: On Justice Gorsuch's hypothetical about the SSI millionaire, I mean, that's unlikely to happen in the real world, but it could happen.
Brett M. Kavanaugh: 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?
Melissa Arbus Sherry: Yes.
Melissa Arbus Sherry: And I -- I suspect that's -- that's somewhat more -- more likely than the million -dollar --
Brett M. Kavanaugh: It -- it is more likely why? Why is -- I think it is more likely.
Brett M. Kavanaugh: Why is that more likely?
Melissa Arbus Sherry: Well, because everyone is entitled to Medicare when they -- when they turn 65.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: 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.
Brett M. Kavanaugh: 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 --
Melissa Arbus Sherry: That's correct.
Brett M. Kavanaugh: -- percentage -wise?
Melissa Arbus Sherry: That's correct.
Brett M. Kavanaugh: A large percentage of them, right?
Melissa Arbus Sherry: Yes, a very significant percentage.
Brett M. Kavanaugh: Then, on Medicare as well, it was going away.
Brett M. Kavanaugh: 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.)
Brett M. Kavanaugh: -- 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.
Brett M. Kavanaugh: Is that --
Melissa Arbus Sherry: That's right.
Melissa Arbus Sherry: 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.
Brett M. Kavanaugh: Okay.
Brett M. Kavanaugh: And then last question.
Brett M. Kavanaugh: 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.
Brett M. Kavanaugh: So, if you lose, what's going to happen, realistically, to rural hospitals and urban hospitals that serve safety net -- as safety nets?
Melissa Arbus Sherry: Yeah.
Melissa Arbus Sherry: So, here, I would point to the amicus briefs, which -- which go through it in some detail.
Melissa Arbus Sherry: 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.
Brett M. Kavanaugh: And hospitals will close, or do you think that's not realistic?
Melissa Arbus Sherry: No, I think that is --
Brett M. Kavanaugh: An amicus brief suggests rural hospitals are going to close.
Melissa Arbus Sherry: I -- I think that is realistic.
Melissa Arbus Sherry: 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.
Brett M. Kavanaugh: Okay.
Brett M. Kavanaugh: Thank you.
John G. Roberts, Jr.: Justice Barrett? Justice Jackson?
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: So that's what's left.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: Am I right about that?
Melissa Arbus Sherry: That's absolutely right. And for more than a year.
Melissa Arbus Sherry: You have that assurance for so long as you haven't been able to string together 12 consecutive months of higher income.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: I'm looking at the statute, and it gives the criteria of you being aged or blind or disabled.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: Is that right?
Melissa Arbus Sherry: I think that's right in part.
Melissa Arbus Sherry: And the government can correct me if I'm wrong.
Melissa Arbus Sherry: I think, when you fall below it, you might have to make a phone call and request reinstatement.
Melissa Arbus Sherry: That's a regulatory requirement. It's not in the statute itself.
Melissa Arbus Sherry: But --
Ketanji Brown Jackson: But you're entitled to do that?
Melissa Arbus Sherry: Absolutely.
Ketanji Brown Jackson: You know, X person on the street who's not enrolled in the program can't just ask the government for money.
Ketanji Brown Jackson: You get to do that because you are an entitled person and you met those original criteria, right?
Melissa Arbus Sherry: Exactly.
Melissa Arbus Sherry: 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.
Melissa Arbus Sherry: Once you're in the program, you're in the program.
Ketanji Brown Jackson: 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?
Melissa Arbus Sherry: Right.
Melissa Arbus Sherry: 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.
Ketanji Brown Jackson: Thank you.
John G. Roberts, Jr.: Thank you, counsel.
John G. Roberts, Jr.: Mr. McDowell.
Ephraim McDowell: 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.
Ephraim McDowell: 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.
Ephraim McDowell: 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.
Ephraim McDowell: That interpretation is fully consistent with the one this Court upheld in Empire Health.
Ephraim McDowell: 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.
Ephraim McDowell: But SSI benefits are monthly cash paymen ts.
Ephraim McDowell: 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.
Ephraim McDowell: 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.
Ephraim McDowell: Ultimately, Petitioners would routinely count patients as low income even though they are earning too much income to be entitled to an SSI benefit.
Ephraim McDowell: 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.
Clarence Thomas: Petitioner argues that the whole purpose of this formula is to determine low-income population that is served, which is a good point.
Clarence Thomas: 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.
Clarence Thomas: Why isn't she right -- why isn't Petitioner right?
Ephraim McDowell: So, Justice Thomas, I think our position --
Clarence Thomas: I understand the statutory argument.
Ephraim McDowell: Yeah.
Clarence Thomas: So what difference does it make in a practical sense if your reading is accepted or her reading is accepted?
Ephraim McDowell: Right.
Ephraim McDowell: 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.
Ephraim McDowell: 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.
Ketanji Brown Jackson: But why does that matter? I -- I --I'm so confused by your argument, I have to say.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: He has a range of health conditions that result from that kind of upbringing.
Ketanji Brown Jackson: When he turns 65 in January, he applies for SSI payments and starts receiving them in February pursuant to the statute and the regulations.
Ketanji Brown Jackson: Let's say in June he comes into a bit of cash.
Ketanji Brown Jackson: He inherits some jewelry.
Ketanji Brown Jackson: He sells it.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: But the Medicare fraction, I thought, was not about how much cash a patient had in any particular month.
Ketanji Brown Jackson: It's about how costly it would be to treat this person.
Ketanji Brown Jackson: 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 --
Ephraim McDowell: Your Honor --
Ketanji Brown Jackson: -- when he doesn't get the cash payment.
Ephraim McDowell: 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.
Ephraim McDowell: If that were how the statute worked, I would agree with you that --
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: That's in the statute.
Ketanji Brown Jackson: 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)?
Ephraim McDowell: And what I -- what I'm saying is (a) -- they are misreading (a).
Ephraim McDowell: That is not how (a) works.
Ketanji Brown Jackson: Okay.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: 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?
Ephraim McDowell: 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.
Ephraim McDowell: It's phrased in terms of a calendar rate, but it is set monthly according to subsection (c)(1).
Ephraim McDowell: And just to give you -- just to explain why textually that has to be right, Section 1382b is about --
Ketanji Brown Jackson: I'm not asking you a textual argument.
Ketanji Brown Jackson: I'm ask --I'm just asking you a purpose.
Ketanji Brown Jackson: 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.
Ketanji Brown Jackson: And what I'm asking you is, why would Congress have set up the DSH program to make that distinction?
Ephraim McDowell: Because Congress picked up the SSI entitlement proxy as an off-the-rack proxy.
Ephraim McDowell: It was a preexisting metric.
Ephraim McDowell: It existed in 19 -- since 1972.
Ephraim McDowell: Congress was acting in 1986.
Ephraim McDowell: It just picked up this indirect proxy measure.
Ephraim McDowell: It doesn't have to be perfect a hundred percent of the time.
Ephraim McDowell: Theirs is not perfect a hundred percent of the time either, as Justice Gorsuch's hypothetical shows.
Ephraim McDowell: 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 --
Sonia Sotomayor: So let's talk to that, okay, whether it is more precise.
Sonia Sotomayor: Let me give you the hypotheticals.
Sonia Sotomayor: Someone's eligible, joins SSI in January, is hospitalized in January, but they receive no cash payment in January.
Sonia Sotomayor: They're going to get it on February 1 because they just joined the program.
Sonia Sotomayor: Are you including those people?
Ephraim McDowell: So, if they just joined, under the statute, those would not -- those people would not be entitled to benefits in the first month.
Ephraim McDowell: And I think that --
Sonia Sotomayor: Even though they are eligible because their -- they didn't make more money? They should be.
Sonia Sotomayor: It's only they happen to join the program the month they got sick?
Ephraim McDowell: Your Honor, they're not eligible.
Ephraim McDowell: That's an eligibility criteria.
Ephraim McDowell: It says you're not eligible for payment until the second month after your application, and it's basically --
Sonia Sotomayor: All right.
Sonia Sotomayor: So it's not capturing people with low income even.
Ephraim McDowell: So --
Sonia Sotomayor: So your -- you made a statement.
Sonia Sotomayor: We now have a group of people that are not captured at all.
Sonia Sotomayor: Then you have the second hypothetical, which is that her income was high in January, so on February 1, her income has gone back down, but she's not going to get a payment because, on -- in January, her income was high.
Ephraim McDowell: That's --that's not correct, Your Honor.
Sonia Sotomayor: Oh.
Ephraim McDowell: That is based on a misreading of (c)(1) and (c)(2) of --of Section 1382.
Ephraim McDowell: So Section (c)(2) would apply in the situation where someone is transitioning from ineligibility in a month to eligibility in the month.
Ephraim McDowell: And what (c)(2) says is that in your first month back into eligibility, you look at your income in that month to determine whether the person is entitled to benefits.
Sonia Sotomayor: But she still didn't get a check.
Ephraim McDowell: She would get a check, is what I'm saying.
Sonia Sotomayor: But when -- when is she going to see it? She's not going to see it on February 1.
Ephraim McDowell: She would see it in February --she would get it --she would get the check for purposes of February.
Ephraim McDowell: And our rule does not turn on whether she actually receives the payment.
Ephraim McDowell: Our rule is not an actual receipt rule.
Ephraim McDowell: We've explained that extensively in the 2010 regulation.
Ephraim McDowell: We do not apply an actual receipt test.
Ephraim McDowell: We look to whether someone satisfies the statutory requirements for a cash payment during the relevant month in question.
Ephraim McDowell: Whether they actually receive a check is irrelevant.
Amy Coney Barrett: I'm --I'm confused about that, actually, because I was asking your friend on the other side these questions about, well, if there was some snafu because it bounced because of an address or something like that, whether they were challenging those codes, and she said no.
Amy Coney Barrett: But why isn't that an actual receipt rule if those people are excluded?
Ephraim McDowell: They're -- so the way that works is, if they provide an address later in a --in a subsequent month, we will go back and retroactively reinstate benefits for the prior month, and then that retroactive reinstatement will be counted for purposes of the numerator.
Ephraim McDowell: So those --those people will be reflected in the numerator because, when -- once they provide the address, we will go back and --
Amy Coney Barrett: Retroactively? So then the hospital gets the benefit of the different DSH fraction later?
Ephraim McDowell: Exactly, because our data set goes 15 months beyond the end of the fiscal year precisely so that we can capture those retroactive benefits reinstatements once suspensions are lifted for administrative reasons.
Ephraim McDowell: That's, again, in the 2010 rule.
Ephraim McDowell: We discuss it towards the end of our brief.
Brett M. Kavanaugh: Can I ask about the similarities --
Ephraim McDowell: Yeah.
Brett M. Kavanaugh: --and differences with the Medicare? So, as you're exploring these answers, you can bounce in and out of actually receiving social -- I mean SSI payments.
Brett M. Kavanaugh: You're in the program, they say, for a year, but you might not receive payments in a particular month.
Brett M. Kavanaugh: Right so far? Medicare, the argument on the other side is similar in the sense that you're in the program, you qualified for Medicare, but you might have private insurance.
Brett M. Kavanaugh: Lots of people do.
Brett M. Kavanaugh: And, therefore, any particular hospital stay in a given day, week, month might be paid for by your private insurance, not by Medic are. So, even though you're not getting Medicare payments, Medicare is paying zero, that, we said in Empire, is still going to be counted because you're in the program.
Brett M. Kavanaugh: So what's the difference between those two things?
Ephraim McDowell: The difference goes to the structure of the statute.
Ephraim McDowell: So, with Medicare Part A, there is a threshold eligibility determination, which is whether you're over 65 or have received disability benefits for 25 months.
Ephraim McDowell: Once you get that, through that threshold step, you're into the program and you are entitled to a broad array of benefits.
Ephraim McDowell: It's not just the in-patient hospital care coverage. It's post-hospital care, hospice care, home healthcare.
Ephraim McDowell: And --
Brett M. Kavanaugh: But how is that relevant to the question here, which is --
Ephraim McDowell: Right.
Brett M. Kavanaugh: -- I thought, looking at payment?
Ephraim McDowell: Right.
Ephraim McDowell: So --and that -- that gets to the second layer of determinations under Medicare Part A.
Ephraim McDowell: Each of those benefits has different payment limitations.
Ephraim McDowell: So that -- that's what was at issue in Empire Health essentially.
Brett M. Kavanaugh: Mm-hmm.
Ephraim McDowell: Here, there's only one determination.
Ephraim McDowell: It's all about month-to-month payment determination.
Ephraim McDowell: There's no threshold program eligibility determination because that's not what subsection (a) does.
Ephraim McDowell: Subsection (a) just establishes an income limit for SSI eligibility that is applied on a month -to-month basis under (c)(1). Subsection (a) is not its own threshold --
Brett M. Kavanaugh: But it seems to me -- I don't mean to press too hard, but it seems to me you're suggesting that there are multiple reasons Medicare might not pay maybe, and there's only one reason that SSI might not pay? Is that what you're suggesting?
Ephraim McDowell: What I'm trying to say is that their argument is that this is different because -- or it's the same because they're both programs.
Ephraim McDowell: And it's -- our -- our point is that this is not a program the same --
Brett M. Kavanaugh: They're both programs in which you could be receiving payment in a relevant period but not for the precise period that you're in the hospital?
Ephraim McDowell: Right.
Ephraim McDowell: And the difference is the structure of the benefits statutes.
Ephraim McDowell: So SSI is all about month-to-month payments.
Ephraim McDowell: There is no threshold --
Brett M. Kavanaugh: But you can't be -- am I right that you can't be terminated from the program until, for a period of 12 consecutive months, your income has not exceeded -- or maybe 11 --
Ephraim McDowell: That's not how, actually, it works at least in -- in practice.
Ephraim McDowell: So the way that that works is we terminate someone's name from the administrative database, but we don't consider them part of a broader program in the same sense as Medicare Part A.
Ephraim McDowell: So, basically --
Brett M. Kavanaugh: When do you terminate them from the database?
Ephraim McDowell: After 12 months of ineligibility.
Ephraim McDowell: And I actually think that's extremely important --
Brett M. Kavanaugh: But they're in the database.
Brett M. Kavanaugh: So let's say you drop out -- I'm sorry to prolong it, but it's important to me at least.
Brett M. Kavanaugh: You drop out for a month.
Brett M. Kavanaugh: The next month -- because your income's gone above the limit.
Brett M. Kavanaugh: The next month, your income is below the limit.
Brett M. Kavanaugh: Do you have to do anything to receive the benefits in that next month?
Ephraim McDowell: You don't need to do anything --well, you would have had to tell them when -- when you go from eligibility to ineligibility.
Ephraim McDowell: You're supposed to report changes in your status so that they know.
Brett M. Kavanaugh: That's not the question.
Ephraim McDowell: Right.
Ephraim McDowell: The --
Brett M. Kavanaugh: The question's: In the next month --
Ephraim McDowell: Right.
Brett M. Kavanaugh: -- when your income goes below the limit, do you have to do anything to receive the benefits in the next month? I think your answer was no.
Ephraim McDowell: If --so, if you're transitioning from eligibility to ineligibility or vice versa, you do have to report those changes to SSA.
Ephraim McDowell: I -- what I was going to say --
Ketanji Brown Jackson: But you don't have to reapply, right? I think that's Justice Kavanaugh's question.
Ephraim McDowell: Right.
Ephraim McDowell: And -- and my point --
Elena Kagan: Mr. McDowell -- go ahead.
Elena Kagan: I'm sorry.
Brett M. Kavanaugh: Well, I'm not done.
Brett M. Kavanaugh: I'm not done.
Ephraim McDowell: Okay.
Ephraim McDowell: My point about the application is that the application is actually just a monthly application.
Ephraim McDowell: In the application, they are just looking at your income in that month.
Ephraim McDowell: It's essentially the same thing as the later determinations; it's just in a form as opposed to done more seamlessly.
Ephraim McDowell: But the actual substantive criteria -- if you look at the application, they are asking: Are you low income in the month of your application and in subsequent months, while your application might be pending? There's no question on the application that goes back and says: Have you been low income for the last year?
Elena Kagan: If I could understand this, you know, because these -- these are really important questions.
Elena Kagan: What you're saying is that in Medicare, we were looking at a program where, even if you had reached the cap for hospital care, there were many other kinds of medical care that one could access the insurance program for.
Elena Kagan: You could access it for home health.
Elena Kagan: You could access it for outpatient treatment.
Elena Kagan: You could keep getting stuff from Medicare even though you had reached the cap on hospital care, is that correct?
Ephraim McDowell: That's exactly right.
Elena Kagan: And we all know that health insurance works that way because we reach the cap on one thing and we keep on benefitting from our insurance on another thing, right? That's just the way insurance --
Ephraim McDowell: Exactly, yes.
Elena Kagan: -- health insurance works.
Elena Kagan: But you're saying that, here, there's only this cash stream.
Ephraim McDowell: Correct.
Elena Kagan: There's only the monthly payments that one is getting.
Ephraim McDowell: That's right.
Elena Kagan: Then the question is: Okay, well, what about these references to the annual -- you know, what --what about these annual measures? Aren't you sort of in the program for a year even though you're not getting payment for particular months? Right?
Ephraim McDowell: Yes.
Elena Kagan: And -- and there are those references in the statute.
Elena Kagan: What are they there for?
Ephraim McDowell: So they are in Section 1383, which is captioned "Procedures for Payments." They are administrative housekeeping provisions.
Ephraim McDowell: One says you are in SSA's administrative database for a year, until you're -- you've been ineligible for 12 straight months.
Ephraim McDowell: That provision was added 14 years after the statute was enacted.
Ephraim McDowell: It was added in 1986.
Ephraim McDowell: And it was simply meant to codify SSA's existing administrative practice of removing people from the database.
Ephraim McDowell: It wasn't meant to change the fundamental scope of the entitlement under Section 1382.
Elena Kagan: And the fact that you don't have to apply -- I mean, this is a very -- reapply for, you know, 12 months' time, this is a pretty sensible provision from everybody's perspective, right?
Ephraim McDowell: Yes.
Elena Kagan: Because the -- Congress knew that people were going to come in and out.
Elena Kagan: Some months they were going to be above the threshold.
Elena Kagan: Some months they were going to be below the threshold.
Elena Kagan: So some months they were going to get monthly benefits and some months they weren't.
Elena Kagan: But to have everybody reapplying every month as that happened didn't make sense for anybody.
Elena Kagan: It didn't make sense for the people who were giving the benefits, and it didn't make sense for the people who were receiving the benefits.
Ephraim McDowell: That's exactly right. And I just --just to focus on Section (j)(1) of 1383, I think this is an important textual point.
Ephraim McDowell: It refers to those 12 months as months of ineligibility.
Ephraim McDowell: So, under Petitioners' view, a person is both eligible for the program, eligible for benefits, and ineligib le for benefits in the same month.
Neil Gorsuch: Well --
Ephraim McDowell: And I think that's not a coherent reading of this statute.
Neil Gorsuch: -- may I pursue that just a little bit?
Ephraim McDowell: Yeah.
Neil Gorsuch: You mentioned 1383. And one of the provisions in 1383, Mr. McDowell, concerns the ability of SSA to secure financial records, and it says that it continues "until the cessation of the recipient's eligibility of benefits." Doesn't that suggest that eligibility for benefits doesn't fluctuate from month to month? Because, otherwise, SSA, I suppose, wouldn't be able to access a recipient's records for the months in which his income goes above the threshold.
Ephraim McDowell: So that is the only term --
Neil Gorsuch: I -- I -- I know. That's why I'm picking --
Ephraim McDowell: -- it's the only reference in the statute.
Neil Gorsuch: -- I'm picking the hardest one for you.
Ephraim McDowell: And -- and -- and what SSA has said i s that we're going to read this in a beneficiary-friendly way.
Ephraim McDowell: We're going to look to -- we're going to say beneficiaries only have to re-authorize --or authorize at the outset because, if they had to reauthorize every single month, they would lose benefits if they forgot to reauthorize in a particular month.
Ephraim McDowell: It's an application essentially of utility error, which is -- which says that the -- the canon of consistent usage will yield where the result would be unworkable.
Ephraim McDowell: That's what SSA has said as to this particular provision.
Ephraim McDowell: But everywhere else in the statute, it reads "eligibility" to be month-to-month payment eligibility.
Neil Gorsuch: But, here, it doesn't mean that.
Neil Gorsuch: It means the 12 months.
Ephraim McDowell: Only because the result would be unworkable and bad for everybody, including beneficiaries, so it has taken that one isolated interpretation out.
Neil Gorsuch: Just two more quick questions.
Neil Gorsuch: One, the D.C. Circuit, in places, seemed to adopt an actual receipt rule, which you have disavowed.
Neil Gorsuch: Would an affirm, in your view, be the appropriate --that's what your brief asks us to do, is affirm.
Neil Gorsuch: Is that the appropriate remedy given some of the language in the D.C. Circuit opinion talking about actual receipt?
Ephraim McDowell: Your Honor, in the relevant portion of the opinion analyzing the question presented here, the D.C. Circuit says: HHS reads the provision to cover only Medic are beneficiaries who are entitled to SSI cash payments at the time of their hospitalization.
Ephraim McDowell: That's at Pet. App. 9.
Ephraim McDowell: That's exactly our position.
Ephraim McDowell: Judge Katsas absolutely understood our position, went through the arguments, and adopted the correct reading.
Ephraim McDowell: He did not think that we were applying an actual receipt rule.
Neil Gorsuch: Right.
Neil Gorsuch: And then if you could address the concern that some of the amici have raised about what this would mean to rural and urban hospitals.
Ephraim McDowell: Yes.
Ephraim McDowell: So we -- we understand the DSH payments are critical to hospitals.
Ephraim McDowell: And we provide billions of dollars in DSH payments each year.
Ephraim McDowell: In 2024, it was approximately 9.2 billion for hospitals under this program, under DSH.
Ephraim McDowell: And what the Court said, though, in Empire Health is that the point of the DSH provision is not to provide the most money possible to hospitals.
Ephraim McDowell: It's to compensate hospitals for serving a disproportionate share of low -income patients. And we don't think that the statute authorizes us to provide any more DSH payments. We think that the statutory text unambiguously prevents us from putting out more DSH payments under this provision.
Ketanji Brown Jackson: Can you help me to understand why you think that there aren't threshold eligibility criteria in this statute?
Ephraim McDowell: Yes.
Ketanji Brown Jackson: You pointed to 1383. But what about 1381a and 1382a, both of which seem to be pointing to age, blindness, and disability as threshold criteria, in addition to income? And if that's the case, I'm wondering why those aren't the kinds of things that one -- the government assesses at the outcome to determine your eligibility for the program, and then they may do the monthly assessment of income pursuant to the rest of the statute.
Ephraim McDowell: We assess those things at the outset, but we also reassess them every month.
Ephraim McDowell: It just so happens that someone can't age backwards.
Ephraim McDowell: So, of course, we don't go back and --
Ketanji Brown Jackson: Right.
Ketanji Brown Jackson: But what about disability? Each application -- every monthly application, when you call up and you say, please give me the check, I've fallen out one month, do -- do they reassess your disability status?
Ephraim McDowell: The statute gives SSA discretion to determine when to make these reevaluations.
Ketanji Brown Jackson: No, no, no, I'm not asking discretion.
Ketanji Brown Jackson: I'm asking: What does the government do?
Ephraim McDowell: In --
Ketanji Brown Jackson: Because it seems to me that if the government does not reassess the threshold criteria of disability, then you're in the program based on the government's initial disability determination, correct?
Ephraim McDowell: I disagree, Your Honor, because we don't reassess disability every single month.
Ephraim McDowell: We do do periodic reassessments. But, still, the entitlement is a month-to-month entitlement because the entitlement is not based solely on --
Ketanji Brown Jackson: No, I understand the payment is made on a month -to-month basis, but you make the payment only to the category of people who also meet age and disability criteria that you assess only at the beginning.
Ephraim McDowell: But --
Ketanji Brown Jackson: So what I'm asking you is: Isn't that initial assessment the same kind of thing as the threshold determination that happens in most benefit programs, and then you're in the program and then the monthly assessment occurs to give you the benefit or not?
Ephraim McDowell: No, Your Honor, because, with respect to Medicare Part A, you get into the program by being 65.
Ephraim McDowell: Then you're in, and you get access to all of the benefits from the threshold.
Ephraim McDowell: Here, just because you're disabled in the first month does not mean that you are into a program.
Ephraim McDowell: You still have to show every single month that your income is below the income limit.
Ephraim McDowell: And just to point to Section 1381a, that --that text refers to a determination of eligibility on the basis of income and resources.
Ketanji Brown Jackson: Yes, and then 82t --
Ephraim McDowell: That is a monthly --
Ketanji Brown Jackson: -- excuse me, then 1382a is set up to look at the income and resources, and then it says, "shall be an eligible individual." It seems to me very clear that the statute is set up to make a threshold determination of who is eligible on the basis of income and resources given those provisions that I just outlined.
Ephraim McDowell: Your Honor, I disagree. And just to point you to 3 -- 1382b(1), that also refers to the benefit amount at -- in terms of an annual rate.
Ketanji Brown Jackson: Yes, but that's in procedure.
Ketanji Brown Jackson: That's all -- we've already determined --
Ephraim McDowell: 1382b -- b --
Ketanji Brown Jackson: Excuse me.
Ephraim McDowell: -- 1382b(1).
Ketanji Brown Jackson: I see.
Ketanji Brown Jackson: Sorry.
Ephraim McDowell: Yes.
Ephraim McDowell: So that's at 5A of the statutory appendix to our brief.
Ketanji Brown Jackson: Yes.
Ephraim McDowell: That is talking about a rate of the amount of benefits for the calendar year.
Ephraim McDowell: And everyone agrees that SSA does not have to pay benefits annually.
Ephraim McDowell: It has always been converted into a monthly amount.
Ephraim McDowell: And Petitioners on page 7 of their opening brief concede that that has to be done because subsection (c)(1) requires a monthly payment eligibility determination. (c)(1) is the determination.
Ephraim McDowell: It's the only determination in the statute.
Ephraim McDowell: That's the determination that is referenced in 1381a when it talks about determine eligibility on the basis of resources.
Ephraim McDowell: It points you to (c)(1).
Ephraim McDowell: And if you look at (c)(1), which is at 6A of the appendix to our brief, it says "an individual's eligibility for a benefit" --
Ketanji Brown Jackson: I'm sorry, how -- how can you get to (c)? 1382a -- 1382, (1) says, right, you make a determination of their eligibility on the basis of income and resources.
Ketanji Brown Jackson: Then, when you get to 1382a, which is the next provision, it says "eligible individual defined," and it is set up to make the determination on the basis of income an d resources.
Ephraim McDowell: Your Honor, that income metric is converted into a month-to-month limit.
Ketanji Brown Jackson: No, I understand.
Ephraim McDowell: It's -- okay.
Ketanji Brown Jackson: I understand.
Ephraim McDowell: Right.
Ephraim McDowell: So there's --
Ketanji Brown Jackson: I'm just saying, but isn't 1382a relevant to the determination of who is an eligible individual?
Ephraim McDowell: It is relevant to the income -- to the income criterion, yes, that is relevant.
Ephraim McDowell: What I'm saying is it's converted into a monthly limit because this whole statute is inherently month to month.
Ephraim McDowell: It's designed as a month-to-month statute.
Brett M. Kavanaugh: On the question of insurance, I think in your briefs, a lot of your argument --maybe not a lot -- but some turned on this is not insurance.
Brett M. Kavanaugh: And you heard what your friend on the other side said in response 71 to that, that this really functions just like insurance.
Ephraim McDowell: Yeah, I would make a few points about that.
Ephraim McDowell: The first is, as a textual matter, Congress expressly referred to Medicare Part A as insurance.
Ephraim McDowell: It did that in 42 U.S.C.
Ephraim McDowell: 426 and 42 U.S.C. 1395c.
Ephraim McDowell: It never called SSI insurance.
Ephraim McDowell: And I don't think SSI functions like an insurance program in two particular ways. First, insurance, as the Court explained in Empire Health, is --it's very natural to talk about the entitlement to insuranc e as being separate and apart from the right to payment because you're still entitled to insurance even if your policy doesn't pay for a particular medical service.
Ephraim McDowell: Here, everything turns on the right to payment.
Ephraim McDowell: And then the second difference is that, with SSI, it doesn't insure you against future risks.
Ephraim McDowell: You can't successfully apply for SSI until you are already low income, whereas, with Medicare Part A, you get in automatically when you're 65 and then it protects you, insures you against any future healthcare expenses -- thereafter.
Brett M. Kavanaugh: What about the disability in Medicare?
Ephraim McDowell: The disability in Medicare is -- is a little bit different, but the Court in that case relied on the fact that
Brett M. Kavanaugh: If you're under 65 and disabled, that's --you apply, right?
Ephraim McDowell: That's right.
Ephraim McDowell: But the Court in --in Empire Health specifically said that the entitlement to Medicare Part A is automatic.
Ephraim McDowell: And the reason why it said that is because the vast majority of Medicare beneficiaries are -- are getting it because they're over 65, and so --
Elena Kagan: I think that the -- Ms. Sherry's idea for how this is insurance -- and she'll correct me if I'm wrong -- but the -- the idea is that even if you run over the threshold in a particular month, that you know that you're going to get the benefit in the next month when you go under the threshold, even without a reapplication.
Elena Kagan: So the insurance, which she said really -- isn't really insurance; it's sort of assurance -- is that I have an assurance for a period of a year that I won't have to reapply when I go under the threshold again.
Elena Kagan: So what should we make of that?
Ephraim McDowell: So I agree that you don't have to submit a new application, but you will be subject to another determination. You'll have to tell them when you become ineligible.
Ephraim McDowell: They'll have -- then you'll have to tell them when you think you're going to be eligible again.
Ephraim McDowell: And they're going to take another look at it.
Ephraim McDowell: You don't have to submit a paper application again, but there is another determination.
Ephraim McDowell: In Medicare Part A, there's just the threshold eligibility determination, and then you're in the program and you get access to this wide array of benefits.
Ephraim McDowell: So it's quite different.
Brett M. Kavanaugh: On the consequences that Ms. Sher ry talked about for the hospitals, are you saying those are -- as a factual matter, you disagree with the predictive judgment in the amicus brief and in the Petitioners'? Or are you saying, yeah, hospitals could close, but that's the nature of a program and the limited resources?
Ephraim McDowell: Well, Justice Kavanaugh, it's -- it's not as if -- this has been the longstanding position.
Ephraim McDowell: This has been the position since 1986.
Ephraim McDowell: So it's not as if how the Court decides this case is going to necessarily change the status quo if it agrees with us.
Ephraim McDowell: It just will be maintaining the status quo.
Ephraim McDowell: So -- and then, as to some of the arguments in the amicus briefs, they point to the 340B drug pricing program as kind of another potential harm here, but they don't -- they -- they don't fully explain the fact that hospitals will have -- do have other pathways of getting into that program.
Ephraim McDowell: It's not just based on the DSH percentage.
Brett M. Kavanaugh: I think there are three things.
Brett M. Kavanaugh: You might not qualify for DSH at all.
Brett M. Kavanaugh: If you do qualify -- because of the cutoff, the 15 percent.
Brett M. Kavanaugh: If you do qualify, the benefits might be less.
Brett M. Kavanaugh: And you might not qualify for 340B.
Brett M. Kavanaugh: Those are the three buckets -- 75 of things, right?
Ephraim McDowell: So I don't disagree as a factual matter that if you don't qualify for the 15 percent, that you're not part of the DSH payment program.
Ephraim McDowell: But I will say that one thing that is important is that the ACA has already changed the status quo here because it has reduced -- it's diminished the importance of this Medicare fraction formula already because now, for a hospital's DSH payment, 25 percent is based on this formula, where previously it was a hundred percent.
Ephraim McDowell: And now it's 25 percent.
Ephraim McDowell: And 75 percent is based on the rate of uncompensated care, which is a totally different metric.
Brett M. Kavanaugh: I think your answer then is their predictive judgment's wrong because this is the way it's been.
Brett M. Kavanaugh: Is that --
Ephraim McDowell: That -- that's essentially correct.
Ephraim McDowell: And I will say that I -- they --they put out a $1.5 billion number in their cert petition on page 18.
Ephraim McDowell: They don't explain how they get to that number.
Ephraim McDowell: They don't
Brett M. Kavanaugh: Well, they say you're not giving them the data to figure it out.
Brett M. Kavanaugh: So that's --
Ephraim McDowell: Well, Your Honor, the D.C.
Ephraim McDowell: --
Brett M. Kavanaugh: -- a little rich from their perspective.
Brett M. Kavanaugh: Yeah.
Ephraim McDowell: -- the D.C. Circuit already considered that argument and rejected it, and it's not before the Court.
Ephraim McDowell: And I -- I'm happy to speak to that data issue.
Ephraim McDowell: I mean, I think --
Brett M. Kavanaugh: That's okay. That's probably too in the weeds, yeah.
John G. Roberts, Jr.: Thank you -- thank you, counsel.
John G. Roberts, Jr.: Justice Thomas? Justice Alito? Justice Gorsuch, anything further? Okay.
John G. Roberts, Jr.: All right.
John G. Roberts, Jr.: Justice Jackson? Thank you, counsel. Rebuttal, Ms. Sherry?
Melissa Arbus Sherry: Thank you, Your Honor. So starting with the program eligibility issue, Justice Jackson, we agree with your reading of the statute both in terms of 1381a and 1382 subsection (a).
Melissa Arbus Sherry: It talks about in a calendar year these are eligibility requirements.
Melissa Arbus Sherry: Disability is not reassessed on a monthly basis.
Melissa Arbus Sherry: In fact, one of the provisions we point to on page 26 of our brief is one that shows that redetermination can occur annually, every few years, what have you.
Melissa Arbus Sherry: And so there is this broader concept per statute of program eligibility.
Melissa Arbus Sherry: What they really are saying is, yeah, okay, but that's not what we do in practice. You know, we --in practice, we look at it on a month-to-month basis and we ask for only a month of financial information.
Melissa Arbus Sherry: I actually t hink the application asks for about 14 months.
Melissa Arbus Sherry: And I think, per statute, it would be very strange to approve an application for someone who says I have no money in this month because I spent all my money and I'm unemployed, but I just got a new job, and starting next month I'm going to make a million dollars a year.
Melissa Arbus Sherry: I don't think that person would be SSI-e ligible under the terms of the statute. And you can look beyond that.
Melissa Arbus Sherry: If you look at the charts that we pointed to that are in the Joint Appendix from the court of appeals, what it's measuring is duration of eligibility, meaning from the very beginning when the application is approved to when you're kicked out of the program.
Melissa Arbus Sherry: That's what the termination numbers are.
Melissa Arbus Sherry: And so this isn't a concept that we've made up.
Melissa Arbus Sherry: It's in the statute.
Melissa Arbus Sherry: It's in their regulations.
Melissa Arbus Sherry: It's in the statistics that they keep.
Melissa Arbus Sherry: The second point has to do with insurance.
Melissa Arbus Sherry: The question here isn't really whether it's called insurance.
Melissa Arbus Sherry: It's whether it functions like an insurance program in the relevant respect.
Melissa Arbus Sherry: And it does.
Melissa Arbus Sherry: And, Justice Kagan, you're right, it's a form of assurance. It's a safety net.
Melissa Arbus Sherry: It functions in the same way.
Melissa Arbus Sherry: And the fact that it doesn't take account -- I mean, it's not health insurance, but there's things like unemployment insurance that function in a similar way.
Melissa Arbus Sherry: It's called insurance.
Melissa Arbus Sherry: It's different than Medicare, but what matters for DSH purposes is not whether it's "insurance" but whether or not there is something bigger than just the individual monthly check to people on the street.
Melissa Arbus Sherry: And there is.
Melissa Arbus Sherry: To that point, it is more than just cash.
Melissa Arbus Sherry: There are non-cash benefits.
Melissa Arbus Sherry: And so it's similar to Medicare Part A in that respect too, whereas someone is not entitled to cash payment in a given month.
Melissa Arbus Sherry: And these are individuals who are disabled, which is about 85 percent of the SSI population.
Melissa Arbus Sherry: They're entitled to Medicaid continuation, they're entitled to vocational rehabilitation, both in Title XVI.
Melissa Arbus Sherry: And just to point the Court --because I think there's some confusion when it comes to Ticket to Work in the briefing.
Melissa Arbus Sherry: This didn't come about until 1999.
Melissa Arbus Sherry: But, if you look at that particular statute and you look specifically at subsections (c)(1) and (j)(1)(b), it just takes you right back into Title XVI and right back into 1382d.
Melissa Arbus Sherry: Fourth point has to do with this time lag issue.
Melissa Arbus Sherry: I think there is confusion in the brief and, frankly, confusion that we have about how they account for these individuals, whether they're paid in the current month, what that's based on, and whether or not they're counted.
Melissa Arbus Sherry: I agree with the reading of the statute.
Melissa Arbus Sherry: If you look at (c)(2) and you look, actually, at the regulations, 416.420, it does seem like those individuals should be getting a check and it seems like they should be counted. It's just not clear whether they are.
Melissa Arbus Sherry: And we get that from the program's operation manual.
Melissa Arbus Sherry: If you look at 2005.001, it seems to say: We do this measurement based on months prior, and you may not be payment-eligible in a month because of what you made in a prior month.
Melissa Arbus Sherry: So it's not clear what's happening on the ground.
Melissa Arbus Sherry: And I think that goes to the point of the -- our 1.5 billion figure.
Melissa Arbus Sherry: Notably, they haven't come up with a figure of their own. They're the ones that have this information. They have no counter-number. And we are in a position where we can't look behind the curtain.
Melissa Arbus Sherry: We don't have access to the data.
Melissa Arbus Sherry: That's our best estimation of what the delta is.
Melissa Arbus Sherry: And they don't come up with a contrary number to that, which I think just gets us back to DSH and to the purposes of DSH.
Melissa Arbus Sherry: They say what you should be counting are individuals who are low income in the hospital month.
Melissa Arbus Sherry: But they don't address the fact that their interpretation simply does not count those individuals.
Melissa Arbus Sherry: They don't count the nursing home patient.
Melissa Arbus Sherry: They don't count the first month, as -- as the answer to the question revealed. They don't count those in prison.
Melissa Arbus Sherry: They don't count those who violate a parole or probation. And they don't count those in administrative suspension.
Melissa Arbus Sherry: I think the actual receipt test and where there's confusion is maybe just one of semantics.
Melissa Arbus Sherry: It's true that if those individuals are no longer suspended when they run the 15-month eligibility file, then they'll count them.
Melissa Arbus Sherry: But, if they still are, then they don't count them.
Melissa Arbus Sherry: And so there's individuals where they need to have a representative payee accept their check.
Melissa Arbus Sherry: They're eligible, they're absolutely due, they don't have someone who can accept the check.
Melissa Arbus Sherry: Those people are not counted, and that's what matters for DSH purposes.
John G. Roberts, Jr.: Thank you, counsel.
Melissa Arbus Sherry: Thank you.
John G. Roberts, Jr.: The case is submitted.