Advocate Christ Medical Center v. Kennedy
Oral argument transcript · No. 23-715 · October Term 2024 · argued November 5, 2024 · the respondent won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Melissa Arbus Sherry, Assistant to the Solicitor General, for the petitioner
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll hear argument first this morning in Case 23-715, Advocate Christ Medical Center versus Becerra. Ms. Sherry. ORAL ARGUMENT OF MELISSA ARBUS SHERRY ON BEHALF OF THE PETITIONERS
Melissa Arbus Sherry: Mr. Chief Justice, and may it please the Court: The same words in the same sentence should have the same meaning. Today, we are talking about the words "entitled to benefits" in the DSH adjustment. 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. A person qualifies for the SSI program when she applies and is determined eligible, and that eligibility lasts until it is terminated. The government disagrees because it says that there's no such thing as an SSI Official 1 program and the only SSI benefit is a monthly cash payment. But Congress created what it called a national program, and it created a program of income insurance. 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. Nothing is terminated, and other benefits remain available. 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. The government's interpretation simply does not count that low-income population. It does not count the low-income Medicaid patient coming out of a nursing home. It does not count the low-income patient waiting for her first check. And the list of those it does not count goes on and on. A DSH proxy that does not measure the low-income population is no proxy at all. Official 1 I welcome the Court's questions.
Justice Thomas: Are there other benefits other than cash under -- under, what is it, Title XVI?
Melissa Arbus Sherry: There are. 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. You know, the government's response to that, I think, is twofold. It's to say that non-cash is not income but probably more so to say that those aren't benefits under Title XVI. But they're both housed in Title XVI. They're both triggered by being program-eligible under Title XVI. And especially when it comes to Medicaid continuation, it's referred to as a benefit under 1382h, which is in Title XVI. The --
Justice 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 Official 1 eligible for SSI?
Melissa Arbus Sherry: Yeah. So -- so this comes out of the SSI statute, and it makes sense when you're thinking of -- of SSI. 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. Instead, you'll get this $30 comfort payment but only if your income is actually under $30. And for most people, because you get a Social Security check, that's not going to be the case. 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. 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. 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. Official 1 I think, in Empire --
Justice 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. 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. 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. 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. Official 1 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. 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. But whatever the answer to that question is, it's specific to SSI. 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.
Justice Sotomayor: Thank you, counsel.
Justice 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.
Justice 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 Official 1 challenges to what kind of happens behind the curtains as far as the counting goes. The challenge that we have is just to what the interpretation of the language should be. 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 --
Justice Barrett: But, if you lose, which let's just assume --
Melissa Arbus Sherry: Yes.
Justice 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. 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. And that's at pages 47 and 48 of their brief. And so, if -- if their interpretation prevails, they will continue to just count the three codes. Official 1 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.
Justice 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. So I -- I'm curious as to what the government's view are. 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. 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. And anyone who doesn't have one of Official 1 those three codes at the time, which would include all the individuals you're talking about, just wouldn't be counted. 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. They're just not payment-eligible in a particular month. They're not due a payment in that month. And the government, I think, admits that all of those individuals fall out under their approach too. It includes those in their first month of eligibility. 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. Those individuals would not be counted. Also in the other category, there's individuals who are in prison, who also aren't counted because they're not due a check. 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 Official 1 healthier when they're transferred to a hospital.
Justice 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. I mean, I sort of conceive of other benefits programs in the federal scheme in a similar way. 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. Is that sort of how your argument works?
Melissa Arbus Sherry: It is, right. There's a difference 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. And we're making the same distinction here that the Court made in Empire Health in that respect. And I think you could look -- I Official 1 mean, in terms of the actual textual language, you can look at a few provisions. 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. 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. And the regulations confirm that because they say that the authorization is valid until there has been a terminating event.
Justice 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.
Justice Jackson: The larger group of program eligibility because it doesn't, in your Official 1 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. 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. 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. 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 Official 1 rehabilitation. Both are within Title XVI.
Justice 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. 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. I mean, it did a sort of micro-analysis of the Medicare statute and its structure and its purposes and its text. 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. We think you Official 1 have to start 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. You need to do that to determine whether someone qualifies for a program. 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.
Justice Kagan: Well, 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 Official 1 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. And the only thing I'm pushing back on -- I would agree with you. 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. But "entitled to" is not a term of art in the SSI statute. It's rarely used. And so that doesn't work.
Justice Kagan: I mean, just to put this --
Melissa Arbus Sherry: But then the other --
Justice 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 Official 1 basis. Let's just say that. And I know you have a thousand objections to that. 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. 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. 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.
Justice Kagan: Yeah.
Justice Kavanaugh: The --
Justice 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. If the government is right, the government wins. In Official 1 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. 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 you still have to come back to the purpose of DSH.
Justice Kavanaugh: And --
Melissa Arbus Sherry: And so --
Justice Alito: Well, your --
Justice Kavanaugh: -- so how -- go ahead. Go ahead.
Justice Alito: 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. But following up on what Justice Kagan was asking, I don't see how the government's argument does that at all. What you're saying seems to me, when you think about it, terribly superficial. It's the nature of the Official 1 entitlement. 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. 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. One is it's interpreting "entitled" to mean two different things. I think, during the Empire Health argument, that was a concern. It was Problem 1 with the government's interpretation there. 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. 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.
Justice Alito: Okay. So we get -- we Official 1 get to those arguments. Now another argument that you have is that this is like Empire Health. 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. 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. 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. And so the difference here is Medicare Part A, you're automatically entitled. Here, you have to apply. But, once you apply, then we're in the same world. Then you are entitled to SSI benefits and you're entitled to them until you've been terminated from the program. The statute distinguishes between Official 1 suspensions and terminations, and the regulations do the same thing. 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. And so I think the application distinction works in our favor.
Justice Kavanaugh: The -- keep going. Sorry.
Melissa Arbus Sherry: Oh, no.
Justice 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. And I think the government emphasizes two things, maybe more. 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. And I think how we analyze those two questions determines how similar SSI is to Medicare at least as I understand it. So I want you to focus on the Official 1 insurance description and the falling in and out as distinct from Medicare.
Melissa Arbus Sherry: Sure. So, on the insurance distinction, this is -- you know, it's not health insurance, obviously, but it's income insurance. It's not just this monthly payment to strangers on the street. The whole concept --
Justice 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. 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. 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. 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 Official 1 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. 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. It's knowing that you're guaranteed this minimum income for as long as you're in the program.
Justice 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. So I don't think that's a distinction either. I'm not sure, even if it were, it would matter, but I don't think it's a distinction because there's two kinds of eligibility and it depends what the government is talking about. There's program eligibility, and individuals do not drop out of the program all that often. I think the -- the statistics the government give -- and it's in the Joint Official 1 Appendix from the court of appeals; it's at page 147 -- is that about 350,000 people in -- I think it's in 2009 were terminated for excess income. First of all, that's about 5 percent of the population. 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. The reality is most stay in this program for a long time, and so I think it's actually quite stable.
Justice Kavanaugh: Do people drop out of Medicare --
Melissa Arbus Sherry: I think people drop out --
Justice Kavanaugh: -- when --
Melissa Arbus Sherry: -- when they're no longer disabled --
Justice Kavanaugh: Correct.
Melissa Arbus Sherry: -- would be the primary example.
Justice Kavanaugh: Yeah.
Melissa Arbus Sherry: And so I -- I think, you know, once you get down to it, it's pretty Official 1 comparable. 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. So there's some lack of stability when it comes to payment for Medicare Part A. 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. It's about 600 -- I think 650,000 individuals in 2009 who were suspended for excess income. 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.
Justice Gorsuch: Ms. Sherry, if we might take a hypothetical. 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 Official 1 a month. I know that's unlikely, but let's just suppose it. 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 --
Justice 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 --
Justice Gorsuch: But -- no, but let's -- let's just --
Melissa Arbus Sherry: -- spending the million dollars --
Justice Gorsuch: No, no, let's assume at the beginning of the year --
Melissa Arbus Sherry: Yeah.
Justice 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 -- Official
Justice 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. And I think there's one good explanation for it --
Justice Gorsuch: So he's --
Melissa Arbus Sherry: -- and one reason --
Justice Gorsuch: -- entitled to benefits --
Melissa Arbus Sherry: Yes.
Justice 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. 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. Entitlement coexists with limitations on payment. That's what the Court said in Empire Health. And the statutory language the Court relied on for that in Medicare Part A is also present in SSI. And so, if you look at the SSI statute, 1381a, it talks about being Official 1 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.
Justice Kagan: I mean, it seems to me Medicare is quite different from this in that respect. 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. So you had reached the cap in terms of your hospital stay, but you could get outpatient treatment for some other condition. So the Medicare was not going away. 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 --
Justice 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 Official 1 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. And even with the $1 million hypothetical, that person -- you know, DSH is not looking at low income for low income's sake. 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. 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.
Chief Justice Roberts: Thank you -- thank you, counsel. Justice Thomas, anything? Justice Alito?
Justice Sotomayor: Assume -- assume that the vocational rehabilitation benefit that you think is a part of Title XVI and the 1382h Official 1 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. 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. 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. And you don't need the non-cash benefits to agree with us on that and rule for us on that. I think it's an additional -- it's icing, so to speak. 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 Official 1 because their position rests on it only being about cash. So I don't think we need the non-cash benefits to win.
Justice 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. So let me start with vocational rehabilitation just because I touched a little bit on Medicaid continuation already. It is a benefit provided under Title -- you know, it's housed in Title XVI. You can look at 1382d, which is in Title XVI. It was 6 -- it is 1615 of the Social Security Act, so very much in Title XVI. Secondly, it is funded by Title XVI. The appropriations under 1381 is where the funding comes from. And you qualify it if you are a Title XVI disability beneficiary. 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. So in every which way it's a Title XVI benefit. The government's counter-argument, Official 1 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. That doesn't hold up because it reads "under" as exclusively under. And yet, in DSH itself, they excluded state supplementation benefits, which are not exclusively under Title XVI. They're provided by states. Yet Congress understood them to be benefits under Title XVI such that they needed to be excluded. And so there's a real inconsistency between those two positions. 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. But, on that one too, you can look throughout Title XVI and see it referred to as a benefit under 1382h. 1380 -- 1383j is one place to look. I believe it's also in subsection (k) and subsection (p).
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: I have a couple Official 1 questions. On Justice Gorsuch's hypothetical about the SSI millionaire, I mean, that's unlikely to happen in the real world, but it could happen. 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. And I -- I suspect that's -- that's somewhat more -- more likely than the million-dollar --
Justice Kavanaugh: It -- it is more likely why? Why is -- I think it is more likely. Why is that more likely?
Melissa Arbus Sherry: Well, because everyone is entitled to Medicare when they -- when they turn 65. 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. The reality is the individuals who do not get payments in certain months because of excess income are probably not the millionaire Official 1 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. 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.
Justice 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.
Justice Kavanaugh: -- percentage-wise?
Melissa Arbus Sherry: That's correct.
Justice Kavanaugh: A large percentage of them, right?
Melissa Arbus Sherry: Yes, a very significant percentage.
Justice Kavanaugh: Then, on Medicare as well, it was going away. I -- I mean, I might have a different understanding -- in fact, Official 1 it's almost certain I have a different understanding of Empire than Justice Kagan does, but -- (Laughter.)
Justice 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're still entitled to Medicare even though you didn't have any Medicare coverage for that day. Is that --
Melissa Arbus Sherry: That's right. 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.
Justice Kavanaugh: Okay. And then last question. 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. So, if you lose, what's going to happen, realistically, to rural hospitals and urban hospitals that serve safety net -- as Official 1 safety nets?
Melissa Arbus Sherry: Yeah. So, here, I would point to the amicus briefs, which -- which go through it in some detail. 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, that's going to be very difficult and has been very difficult for hospitals to do.
Justice Kavanaugh: And hospitals will close, or do you think that's not realistic?
Melissa Arbus Sherry: No, I think that is --
Justice Kavanaugh: An amicus brief suggests rural hospitals are going to close.
Melissa Arbus Sherry: I -- I think that is realistic. 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 Official 1 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.
Justice Kavanaugh: Okay. Thank you.
Chief Justice Roberts: Justice Barrett? Justice Jackson?
Justice 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. 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. As I understood it, eligibility for the program, or entitlement, gives you the Official 1 assurance that in any month during the next year when you fall below the income cap, the government will send you a check. So that's what's left. 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. Am I right about that?
Melissa Arbus Sherry: That's absolutely right. And for more than a year. You have that assurance for so long as you haven't been able to string together 12 consecutive months of higher income.
Justice 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. I'm looking at the statute, and it gives the criteria of you being aged or blind or disabled. 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. Setting aside all the other benefits, Official 1 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. Is that right?
Melissa Arbus Sherry: I think that's right in part. And the government can correct me if I'm wrong. I think, when you fall below it, you might have to make a phone call and request reinstatement. That's a regulatory requirement. It's not in the statute itself. But --
Justice Jackson: But you're entitled to do that?
Melissa Arbus Sherry: Absolutely.
Justice Jackson: You know, X person on the street who's not enrolled in the program can't just ask the government for money. You get to do that because you are an entitled person and you met those original criteria, right?
Melissa Arbus Sherry: Exactly. 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, Official 1 filling out a form, and then walking away with a check. Once you're in the program, you're in the program.
Justice 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. 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.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. McDowell. ORAL ARGUMENT OF EPHRAIM McDOWELL ON BEHALF OF THE RESPONDENT
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. Official 1 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. 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. 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. That interpretation is fully consistent with the one this Court upheld in Empire Health. The Medicare 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. Official 1 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. But SSI benefits are monthly cash payments. 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. 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. Ultimately, Petitioners would routinely count patients as low income even though they are earning too much income to be entitled to an SSI benefit. That approach is flatly inconsistent with Congress's choice of SSI entitlement as the proxy for low-income status. Official 1 I welcome the Court's questions.
Justice Thomas: Petitioner argues that the whole purpose of this formula is to determine low-income population that is served, which is a good point. 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. Why isn't she right -- why isn't Petitioner right?
McDowell: So, Justice Thomas, I think our position --
Justice Thomas: I understand the statutory argument.
McDowell: Yeah.
Justice Thomas: So what difference does it make in a practical sense if your reading is accepted or her reading is accepted?
McDowell: Right. 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. We're only going to count someone as low income if they've established Official 1 that they are low income in the month of their hospitalization.
Justice Jackson: But why does that matter? I -- I -- I'm so confused by your argument, I have to say. 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. He has a range of health conditions that result from that kind of upbringing. When he turns 65 in January, he applies for SSI payments and starts receiving them in February pursuant to the statute and the regulations. Let's say in June he comes into a bit of cash. He inherits some jewelry. He sells it. 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. But Official 1 the Medicare fraction, I thought, was not about how much cash a patient had in any particular month. It's about how costly it would be to treat this person. 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 --
McDowell: Your Honor --
Justice Jackson: -- when he doesn't get the cash payment.
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. If that were how the statute worked, I would agree with you that --
Justice 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. That's in Official 1 the statute. 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)?
McDowell: And what I -- what I'm saying is (a) -- they are misreading (a). That is not how (a) works.
Justice Jackson: Okay. 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. 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?
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 Official 1 eligibility. It's phrased in terms of a calendar rate, but it is set monthly according to subsection (c)(1). And just to give you -- just to explain why textually that has to be right, Section 1382b is about --
Justice Jackson: I'm not asking you a textual argument. I'm ask -- I'm just asking you a purpose. 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. And what I'm asking you is, why would Congress have set up the DSH program to make that distinction?
McDowell: Because Congress picked up the SSI entitlement proxy as an off-the-rack proxy. It was a preexisting metric. It existed in 19 -- since 1972. Congress was acting in 1986. It just picked up this indirect proxy measure. It doesn't have to be perfect a hundred percent of the time. Theirs is not perfect a hundred percent of the time either, as Justice Gorsuch's hypothetical shows. And my point is that ours is more Official 1 precise at capturing low-income people because we are looking to whether they establish low-income status and --
Justice Sotomayor: So let's talk to that, okay, whether it is more precise. Let me give you the hypotheticals. Someone's eligible, joins SSI in January, is hospitalized in January, but they receive no cash payment in January. They're going to get it on February 1 because they just joined the program. Are you including those people?
McDowell: So, if they just joined, under the statute, those would not -- those people would not be entitled to benefits in the first month. And I think that --
Justice Sotomayor: Even though they are eligible because their -- they didn't make more money? They should be. It's only they happen to join the program the month they got sick?
McDowell: Your Honor, they're not eligible. That's an eligibility criteria. It says you're not eligible for payment until the second month after your application, and it's basically -- Official
Justice Sotomayor: All right. So it's not capturing people with low income even.
McDowell: So --
Justice Sotomayor: So your -- you made a statement. We now have a group of people that are not captured at all. 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.
McDowell: That's -- that's not correct, Your Honor.
Justice Sotomayor: Oh.
McDowell: That is based on a misreading of (c)(1) and (c)(2) of -- of Section 1382. So Section (c)(2) would apply in the situation where someone is transitioning from ineligibility in a month to eligibility in the month. 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.
Justice Sotomayor: But she still didn't get a check. Official
McDowell: She would get a check, is what I'm saying.
Justice Sotomayor: But when -- when is she going to see it? She's not going to see it on February 1.
McDowell: She would see it in February -- she would get it -- she would get the check for purposes of February. And our rule does not turn on whether she actually receives the payment. Our rule is not an actual receipt rule. We've explained that extensively in the 2010 regulation. We do not apply an actual receipt test. We look to whether someone satisfies the statutory requirements for a cash payment during the relevant month in question. Whether they actually receive a check is irrelevant.
Justice 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. But why isn't that an actual receipt Official 1 rule if those people are excluded?
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. So those -- those people will be reflected in the numerator because, when -- once they provide the address, we will go back and --
Justice Barrett: Retroactively? So then the hospital gets the benefit of the different DSH fraction later?
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. That's, again, in the 2010 rule. We discuss it towards the end of our brief.
Justice Kavanaugh: Can I ask about the similarities --
McDowell: Yeah.
Justice Kavanaugh: -- and differences with the Medicare? So, as you're exploring Official 1 these answers, you can bounce in and out of actually receiving social -- I mean SSI payments. You're in the program, they say, for a year, but you might not receive payments in a particular month. 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. Lots of people do. And, therefore, any particular hospital stay in a given day, week, month might be paid for by your private insurance, not by Medicare. 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. So what's the difference between those two things?
McDowell: The difference goes to the structure of the statute. 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. Once you get that, through that threshold step, you're into the program and you Official 1 are entitled to a broad array of benefits. It's not just the in-patient hospital care coverage. It's post-hospital care, hospice care, home healthcare. And --
Justice Kavanaugh: But how is that relevant to the question here, which is --
McDowell: Right.
Justice Kavanaugh: -- I thought, looking at payment?
McDowell: Right. So -- and that -- that gets to the second layer of determinations under Medicare Part A. Each of those benefits has different payment limitations. So that -- that's what was at issue in Empire Health essentially.
Justice Kavanaugh: Mm-hmm.
McDowell: Here, there's only one determination. It's all about month-to-month payment determination. There's no threshold program eligibility determination because that's not what subsection (a) does. 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 -- Official
Justice 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?
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. And it's -- our -- our point is that this is not a program the same --
Justice 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?
McDowell: Right. And the difference is the structure of the benefits statutes. So SSI is all about month-to-month payments. There is no threshold --
Justice 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 --
McDowell: That's not how, Official 1 actually, it works at least in -- in practice. 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. So, basically --
Justice Kavanaugh: When do you terminate them from the database?
McDowell: After 12 months of ineligibility. And I actually think that's extremely important --
Justice Kavanaugh: But they're in the database. So let's say you drop out -- I'm sorry to prolong it, but it's important to me at least. You drop out for a month. The next month -- because your income's gone above the limit. The next month, your income is below the limit. Do you have to do anything to receive the benefits in that next month?
McDowell: You don't need to do anything -- well, you would have had to tell them when -- when you go from eligibility to ineligibility. You're supposed to report changes in your status so that they know.
Justice Kavanaugh: That's not the Official 1 question.
McDowell: Right. The --
Justice Kavanaugh: The question's: In the next month --
McDowell: Right.
Justice 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.
McDowell: If -- so, if you're transitioning from eligibility to ineligibility or vice versa, you do have to report those changes to SSA. I -- what I was going to say --
Justice Jackson: But you don't have to reapply, right? I think that's Justice Kavanaugh's question.
McDowell: Right. And -- and my point --
Justice Kagan: Mr. McDowell -- go ahead. I'm sorry.
Justice Kavanaugh: Well, I'm not done. I'm not done.
McDowell: Okay. My point about the application is that the application is Official 1 actually just a monthly application. In the application, they are just looking at your income in that month. It's essentially the same thing as the later determinations; it's just in a form as opposed to done more seamlessly. 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?
Justice Kagan: If I could understand this, you know, because these -- these are really important questions. 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. You could access it for home health. You could access it for outpatient treatment. You could keep getting stuff from Medicare even though you had reached the cap on hospital care, Official 1 is that correct?
McDowell: That's exactly right.
Justice 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 --
McDowell: Exactly, yes.
Justice Kagan: -- health insurance works. But you're saying that, here, there's only this cash stream.
McDowell: Correct.
Justice Kagan: There's only the monthly payments that one is getting.
McDowell: That's right.
Justice 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?
McDowell: Yes.
Justice Kagan: And -- and there are those references in the statute. What are they Official 1 there for?
McDowell: So they are in Section 1383, which is captioned "Procedures for Payments." They are administrative housekeeping provisions. One says you are in SSA's administrative database for a year, until you're -- you've been ineligible for 12 straight months. That provision was added 14 years after the statute was enacted. It was added in 1986. And it was simply meant to codify SSA's existing administrative practice of removing people from the database. It wasn't meant to change the fundamental scope of the entitlement under Section 1382.
Justice 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?
McDowell: Yes.
Justice Kagan: Because the -- Congress knew that people were going to come in and out. Some months they were going to be above the threshold. Some months they were Official 1 going to be below the threshold. So some months they were going to get monthly benefits and some months they weren't. But to have everybody reapplying every month as that happened didn't make sense for anybody. 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.
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. It refers to those 12 months as months of ineligibility. So, under Petitioners' view, a person is both eligible for the program, eligible for benefits, and ineligible for benefits in the same month.
Justice Gorsuch: Well --
McDowell: And I think that's not a coherent reading of this statute.
Justice Gorsuch: -- may I pursue that just a little bit?
McDowell: Yeah.
Justice Gorsuch: You mentioned 1383. Official 1 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.
McDowell: So that is the only term --
Justice Gorsuch: I -- I -- I know. That's why I'm picking --
McDowell: -- it's the only reference in the statute.
Justice Gorsuch: -- I'm picking the hardest one for you.
McDowell: And -- and -- and what SSA has said is that we're going to read this in a beneficiary-friendly way. 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 Official 1 month, they would lose benefits if they forgot to reauthorize in a particular month. 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. That's what SSA has said as to this particular provision. But everywhere else in the statute, it reads "eligibility" to be month-to-month payment eligibility.
Justice Gorsuch: But, here, it doesn't mean that. It means the 12 months.
McDowell: Only because the result would be unworkable and bad for everybody, including beneficiaries, so it has taken that one isolated interpretation out.
Justice Gorsuch: Just two more quick questions. One, the D.C. Circuit, in places, seemed to adopt an actual receipt rule, which you have disavowed. Would an affirm, in your view, be the appropriate -- that's what your brief asks us to do, is affirm. Is that the appropriate remedy given some of the language in the D.C. Circuit opinion talking about actual Official 1 receipt?
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 Medicare beneficiaries who are entitled to SSI cash payments at the time of their hospitalization. That's at Pet. App. 9. That's exactly our position. Judge Katsas absolutely understood our position, went through the arguments, and adopted the correct reading. He did not think that we were applying an actual receipt rule.
Justice Gorsuch: Right. 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.
McDowell: Yes. So we -- we understand the DSH payments are critical to hospitals. And we provide billions of dollars in DSH payments each year. In 2024, it was approximately 9.2 billion for hospitals under this program, under DSH. And what the Court said, though, in Empire Health is that the point of the DSH Official 1 provision is not to provide the most money possible to hospitals. 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.
Justice Jackson: Can you help me to understand why you think that there aren't threshold eligibility criteria in this statute?
McDowell: Yes.
Justice 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.
McDowell: We assess those things at the outset, but we also reassess them every Official 1 month. It just so happens that someone can't age backwards. So, of course, we don't go back and --
Justice Jackson: Right. 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?
McDowell: The statute gives SSA discretion to determine when to make these reevaluations.
Justice Jackson: No, no, no, I'm not asking discretion. I'm asking: What does the government do?
McDowell: In --
Justice 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?
McDowell: I disagree, Your Honor, because we don't reassess disability every single month. We do do periodic reassessments. But, still, the entitlement is a month-to-month Official 1 entitlement because the entitlement is not based solely on --
Justice 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.
McDowell: But --
Justice 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?
McDowell: No, Your Honor, because, with respect to Medicare Part A, you get into the program by being 65. Then you're in, and you get access to all of the benefits from the threshold. Here, just because you're disabled in the first month does not mean that you are into a program. You still have to show every single month that your income is below the income limit. And just to point to Section 1381a, Official 1 that -- that text refers to a determination of eligibility on the basis of income and resources.
Justice Jackson: Yes, and then 82t --
McDowell: That is a monthly --
Justice 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.
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.
Justice Jackson: Yes, but that's in procedure. That's all -- we've already determined --
McDowell: b -- b --
Justice Jackson: Excuse me.
McDowell: -- 1382b(1).
Justice Jackson: I see. Sorry. Official
McDowell: Yes. So that's at 5A of the statutory appendix to our brief.
Justice Jackson: Yes.
McDowell: That is talking about a rate of the amount of benefits for the calendar year. And everyone agrees that SSA does not have to pay benefits annually. It has always been converted into a monthly amount. 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. It's the only determination in the statute. That's the determination that is referenced in 1381a when it talks about determine eligibility on the basis of resources. It points you to (c)(1). 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" --
Justice 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. Then, when you get to 1382a, which Official 1 is the next provision, it says "eligible individual defined," and it is set up to make the determination on the basis of income and resources.
McDowell: Your Honor, that income metric is converted into a month-to-month limit.
Justice Jackson: No, I understand.
McDowell: It's -- okay.
Justice Jackson: I understand.
McDowell: Right. Right. So there's --
Justice Jackson: I'm just saying, but isn't 1382a relevant to the determination of who is an eligible individual?
McDowell: It is relevant to the income -- to the income criterion, yes, that is relevant. What I'm saying is it's converted into a monthly limit because this whole statute is inherently month to month. It's designed as a month-to-month statute.
Justice 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. And you heard what your friend on the other side said in response Official 1 to that, that this really functions just like insurance.
McDowell: Yeah, I would make a few points about that. The first is, as a textual matter, Congress expressly referred to Medicare Part A as insurance. It did that in 42 U.S.C. 426 and 42 U.S.C. 1395c. It never called SSI insurance. 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 insurance 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. Here, everything turns on the right to payment. And then the second difference is that, with SSI, it doesn't insure you against future risks. 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 Official 1 thereafter.
Justice Kavanaugh: What about the disability in Medicare?
McDowell: The disability in Medicare is -- is a little bit different, but the Court in that case relied on the fact that --
Justice Kavanaugh: If you're under 65 and disabled, that's -- you apply, right?
McDowell: That's right. But the Court in -- in Empire Health specifically said that the entitlement to Medicare Part A is automatic. 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 --
Justice 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. So the insurance, which she said Official 1 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. So what should we make of that?
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. They'll have -- then you'll have to tell them when you think you're going to be eligible again. And they're going to take another look at it. You don't have to submit a paper application again, but there is another determination. 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. So it's quite different.
Justice Kavanaugh: On the consequences that Ms. Sherry 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 Official 1 Petitioners'? Or are you saying, yeah, hospitals could close, but that's the nature of a program and the limited resources?
McDowell: Well, Justice Kavanaugh, it's -- it's not as if -- this has been the longstanding position. This has been the position since 1986. 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. It just will be maintaining the status quo. 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. It's not just based on the DSH percentage.
Justice Kavanaugh: I think there are three things. You might not qualify for DSH at all. If you do qualify -- because of the cutoff, the 15 percent. If you do qualify, the benefits might be less. And you might not qualify for 340B. Those are the three buckets Official 1 of things, right?
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. 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. And now it's 25 percent. And 75 percent is based on the rate of uncompensated care, which is a totally different metric.
Justice Kavanaugh: I think your answer then is their predictive judgment's wrong because this is the way it's been. Is that --
McDowell: That -- that's essentially correct. And I will say that I -- they -- they put out a $1.5 billion number in their cert petition on page 18. They don't explain how they get to that number. They don't --
Justice Kavanaugh: Well, they say you're not giving them the data to figure it Official 1 out. So that's --
McDowell: Well, Your Honor, the D.C. --
Justice Kavanaugh: -- a little rich from their perspective. Yeah.
McDowell: -- the D.C. Circuit already considered that argument and rejected it, and it's not before the Court. And I -- I'm happy to speak to that data issue. I mean, I think --
Justice Kavanaugh: That's okay. That's probably too in the weeds, yeah.
Chief Justice Roberts: Thank you -- thank you, counsel. Justice Thomas? Justice Alito? Justice Gorsuch, anything further? Okay. All right. Justice Jackson? Thank you, counsel. Rebuttal, Ms. Sherry? REBUTTAL ARGUMENT OF MELISSA ARBUS SHERRY ON BEHALF OF THE PETITIONERS
Melissa Arbus Sherry: Thank you, Your Honor. So starting with the program Official 1 eligibility issue, Justice Jackson, we agree with your reading of the statute both in terms of 1381a and 1382 subsection (a). It talks about in a calendar year these are eligibility requirements. Disability is not reassessed on a monthly basis. 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. And so there is this broader concept per statute of program eligibility. 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. I actually think the application asks for about 14 months. 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. I don't think that person would be SSI-eligible under the terms of the statute. Official 1 And you can look beyond that. 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. That's what the termination numbers are. And so this isn't a concept that we've made up. It's in the statute. It's in their regulations. It's in the statistics that they keep. The second point has to do with insurance. The question here isn't really whether it's called insurance. It's whether it functions like an insurance program in the relevant respect. And it does. And, Justice Kagan, you're right, it's a form of assurance. It's a safety net. It functions in the same way. 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. It's called insurance. It's different than Medicare, but what matters for DSH purposes is not whether Official 1 it's "insurance" but whether or not there is something bigger than just the individual monthly check to people on the street. And there is. To that point, it is more than just cash. There are non-cash benefits. 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. And these are individuals who are disabled, which is about 85 percent of the SSI population. They're entitled to Medicaid continuation, they're entitled to vocational rehabilitation, both in Title XVI. And just to point the Court -- because I think there's some confusion when it comes to Ticket to Work in the briefing. This didn't come about until 1999. 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. Fourth point has to do with this time lag issue. I think there is confusion in the brief and, frankly, confusion that we have about how they account for these individuals, whether Official 1 they're paid in the current month, what that's based on, and whether or not they're counted. I agree with the reading of the statute. 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. And we get that from the program's operation manual. 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. So it's not clear what's happening on the ground. And I think that goes to the point of the -- our 1.5 billion figure. 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. We don't have access to the data. That's our best estimation of what the delta is. And they don't come up with a contrary number to that, which I think Official 1 just gets us back to DSH and to the purposes of DSH. They say what you should be counting are individuals who are low income in the hospital month. But they don't address the fact that their interpretation simply does not count those individuals. They don't count the nursing home patient. They don't count the first month, as -- as the answer to the question revealed. They don't count those in prison. They don't count those who violate a parole or probation. And they don't count those in administrative suspension. I think the actual receipt test and where there's confusion is maybe just one of semantics. It's true that if those individuals are no longer suspended when they run the 15-month eligibility file, then they'll count them. But, if they still are, then they don't count them. And so there's individuals where they need to have a representative payee accept their check. They're eligible, they're absolutely due, they don't have someone who can accept the check. Those people are not counted, and that's Official 1 what matters for DSH purposes.
Chief Justice Roberts: Thank you, counsel.
Melissa Arbus Sherry: Thank you.
Chief Justice Roberts: The case is submitted. (Whereupon, at 11:16 a.m., the case was submitted.) 10 12 14 16 18 20 22 24 Official $ 350,000 [1] 25:5 acting [1] 49:4 76:10 82:6 assume [8] 9:11 17: [1] 63:10 35A [1] 13:7 actual [10] 10:22 13:3 answers [1] 53:14 24 27:16,21 28:18 31: benefit [18] 4:1 5:18 $1 [1] 30:13 4 51:23,25 52:12 58:19 anybody [1] 61:19 4,4 39:1 12:16 14:22 31:5 32: $1.5 [1] 76:14 64:10,15 65:2 82:11 apart [2] 20:10 72:6 assuming [1] 30:3 18 33:4,7,25 40:9 41: $30 [4] 5:25 6:10,11 7: 416.420 [1] 81:2 actually [15] 6:11 7:2 apartment [1] 23:23 assumption [1] 7:22 13 44:5 52:25 68:2,4 42 [3] 2:7 71:23,24 10:23 14:7 21:14 25: App [1] 64:23 assurance [6] 23:16 69:7 70:10 73:14 426 [1] 71:24 15 51:22 52:4,6 53: appeals [3] 25:4 26: 39:9,19 73:19,19 79: benefits [82] 3:13,16, [1] 9:24 15 56:14,23 58:14 78: 17 78:25 15 19 4:11 5:3,6,13 12: [5] 20:16 49:19 50:19 48 [1] 9:25 13 81:2 APPEARANCES [1] at-risk [1] 37:20 11,24 13:12 14:21 15: 51:17 70:12 added [2] 60:22,23 1:19 attack [1] 46:14 2,9,14,15,16 16:22,25 1.5 [1] 81:14 addendum [1] 13:8 Appendix [5] 25:4 26: authorization [2] 13: 17:1,2,4,7 18:2,12,20 10:05 [2] 1:17 3:2 5 [2] 1:13 25:8 addition [1] 66:7 17 69:17 70:9 78:25 11,18 19:5,22 20:5 21:17 [1] 56:12 5A [1] 69:16 additional [2] 32:3,13 application [23] 11: authorize [3] 13:9 41: 22:1 27:7 28:1,6,13, 11:16 [1] 83:4 6 address [6] 8:20 52:9, 17 18:16,19 21:19 22: 18 63:12 21 31:20,23 32:1,5,9, [9] 24:5 35:15 39: 56:10,22 60:20 61: 6 [1] 32:21 16,22 65:5 82:2 9 46:25 50:9 58:13, authorized [1] 7:10 14 33:14,17 40:8 42: 62:1 63:25 60 [1] 13:7 adjustment [4] 3:14 13,14,15,20,22,23,24 authorizes [1] 65:21 10,13,20 43:2,3,6,8, 1380 [1] 34:1 600 [1] 26:18 37:12 38:9,10 63:16 66:20,21 73:24 automatic [3] 21:9,14 10,15,18,21,22,23,24 1381 [1] 32:24 65 [9] 25:11 34:25,25 administrative [7] 10: 74:6 78:14,16 79:3 73:5 49:24 51:10 52:18 53: 1381a [5] 29:4 66:5 68: 45:22 54:10 68:8 72: 12 53:6 56:16 60:17, applied [2] 23:20 55: automatically [4] 21: 5 54:11,14 55:1 56:5 16,25 73:8 19,25 82:9 11 23 40:14 41:16 72:15 57:7,21 61:15,20,22 70:5 77:25 1382 [5] 46:23 51:4 61: 650,000 [1] 26:19 admits [1] 11:12 applies [2] 3:22 45:23 available [1] 4:11 62:5,5,18,20 63:14 70:12 77:25 6A [1] 70:9 adopt [1] 64:10 apply [10] 21:16,24,24 away [7] 15:25 19:6 68:9 69:20,22 74:11 1382a [5] 66:5 68:22 7 adopted [1] 65:1 39:24,24 51:4,25 61: 29:20,23 36:6,13 41: 75:16 80:3 ADVOCATE [2] 1:3 3: 5 72:13 73:1 10 benefitting [1] 59:18 70:12,15 71:5 1382b [2] 48:16 69:12 7 [1] 69:24 5 applying [1] 65:2 B beside [1] 38:23 70-year-old [1] 27:2 affect [1] 37:2 approach [5] 6:16 7: best [1] 81:20 1382b(1 [2] 69:6,14 71,000 [1] 26:21 affirm [2] 64:11,13 17 10:15 11:13 44:5 back [19] 15:5 17:8,13 better [1] 45:4 1382d [3] 5:9 32:20 75 [1] 76:7 afloat [1] 37:16 appropriate [2] 64:12, 19:12,13 30:7 35:12, between [7] 7:9 12:20 80:18 [1] 2:10 age [4] 25:11 66:6,17 14 19 46:3,23 50:19 51: 22:3 33:19 39:4 47: 1382h [4] 5:18 31:6 8 67:21 appropriations [1] 8 52:17,23 58:24 66: 23 54:5 33:21,25 aged [1] 40:3 32:24 17 80:17,17 81:23 beyond [2] 53:3 78:23 1382h(b [1] 5:7 82t [1] 68:19 ago [1] 3:14 approve [1] 78:16 backwards [1] 66:17 big [1] 22:23 1383 [5] 60:16 61:25 85 [1] 80:7 agree [8] 17:8 32:1,5 approved [1] 79:3 bad [1] 64:2 bigger [1] 79:24 62:13,14 66:4 9 46:5 47:3 73:23 77: approximately [1] 65: BARRETT [9] 8:16,23 bill [1] 14:10 1 1 1 3 3 4 4 8 9 6 [2 3 5 ] [ 1 j c 6 ] [ 0 2 1 [1 : ] 6 2 ] 3 : 7 2 1 4 1 6 : 7 : 1 2 8 4 :1 4 9 9 9 . 0 2 [1 ] [ 1 [ 6 1 ] ] 4 2 6 : 6 2 5 : 3 : 1 1 0 2 a a 2 2 g h 1 3 r e e 7 8 a 5 0 e d : : s 2 2 [ 5 4 [3 ] ] 1 1 9 3 :1 :1 8 3 ,1 6 8 9 2 : 2: A a 1 3 r R 2 : e 7 B n 7 ' U t 7 : S [7 1 ] 9 [ 5 5 ] : 1 1 3 :2 7 0 : 2 2 1 :3 1 ,9 1 : b 9 2 5 a : 5 2 1 s : 6 5 0 e 7 , , d 2 1 :1 4 3 [ 0 1 1 7 0 ,1 0 7 ] 6 6 : : 8 1 : 2 7 5 3 0 5 8 , : 2 1 :1 1 0 5 5 7 0 6 : : b b b 8 i i i 1 l l t l l : i i [ 1 4 o o ] 4 n n 3 2 s [3 : 1 ] [ 1 6 7 ] 5 6 4 : 5 1 6 : 2 : 1 1 0 7 6 6 2 :1 : 4 147 [1] 25:5 A 5,7 80:24 81:8 58:9 23 12:2 60:8 66:1,9 11 72:22 [4] 11:1 53:3 75:15, a.m [3] 1:17 3:2 83:4 AL [1] 1:4 ares [1] 10:18 basically [4] 13:9 21: blind [1] 40:3 ability [1] 62:15 ALITO [7] 19:16,19 21: argues [1] 44:10 18 50:10 56:19 blindness [1] 66:6 15-month [1] 82:15 able [4] 24:5,6 39:19 3 22:16 24:17 31:3 arguing [1] 31:24 basing [1] 10:22 boils [1] 22:17 1615 [1] 32:21 62:22 77:11 argument [31] 1:16 2: basis [10] 18:4 55:12 bookends [1] 21:19 1619(b [1] 33:22 above [5] 46:6,8 57:4 Almost [3] 23:16 33: 2,5,8 3:4,7 12:18 13: 67:19 68:17 69:2 70: both [13] 5:14,15 14: [1] 76:15 61:13 62:23 20 36:8 20 15:7,22,23 19:20 7,14,20 78:3,12 15 15:4,7 22:15 43:6 [1] 49:4 above-entitled [1] 1: already [6] 32:18 69: 20:1,10,12,15 21:5 bearing [1] 45:15 55:22,25 62:4 66:5 1972 [1] 49:4 15 10 72:14 76:1,3 77:1 31:11,12,18 42:2 44: became [1] 17:10 77:24 80:10 1986 [3] 49:5 60:24 74: absolutely [5] 8:10 although [1] 9:22 23 45:13 46:20 48:18, BECERRA [2] 1:7 3:5 bottom [2] 25:12 30: 39:17 40:23 64:24 82: amazing [1] 35:1 19 53:19 55:21 71:15 become [1] 74:1 23 1999 [1] 80:14 20 amici [1] 65:6 77:1,19 begin [2] 27:15 37:12 bounce [1] 53:14 ACA [1] 75:25 amicus [5] 37:10 38:3, arguments [6] 8:4 21: beginning [3] 27:22 bounced [1] 52:8 2005.001 [1] 81:7 accept [2] 82:19,21 6 74:17 75:5 4 29:13 33:21 65:1 67:22 79:2 box [1] 7:24 2009 [2] 25:6 26:19 accepted [3] 23:20 45: amount [5] 35:11 38: 75:5 behalf [8] 1:21,23 2:4, boxes [1] 18:17 2010 [2] 51:24 53:7 2,2 9 69:7,20,23 array [2] 54:14 74:11 7,10 3:8 42:3 77:20 brief [11] 9:25 13:6 38: 2024 [2] 1:13 65:11 access [10] 13:10 29: analysis [1] 19:10 art [2] 17:11,14 behind [3] 6:7 9:3 81: 3 53:8 64:13 69:17, 23-715 [1] 3:4 16 41:19 59:9,10,11 analyze [1] 23:1 aside [2] 38:24 40:8 19 24 70:9 74:17 78:4 [3] 54:11 76:4,6 62:22 68:9 74:10 81: analyzing [1] 64:18 asks [2] 64:13 78:14 believe [1] 34:1 80:21 [1] 78:4 20 annual [3] 60:7,8 69:8 assess [2] 66:14 67: below [8] 39:10 40:13, briefing [2] 36:24 80: according [1] 48:12 annually [2] 69:22 78: 22 17 45:19 57:5,20 61: 13 account [3] 10:16 79: 5 assesses [1] 66:10 14 68:14 briefs [5] 15:8 37:10 [2] 2:4 69:6 18 80:22 another [7] 21:5 37:4 assessment [3] 66: beneficiaries [4] 63: 38:6 71:14 75:5 340B [2] 75:6,17 acknowledging [1] 59:19 73:25 74:5,6 12 67:25 68:4 11 64:3,21 73:7 brings [1] 46:6 34A [1] 13:7 14:15 75:7 assign [1] 7:7 beneficiary [1] 33:1 broad [2] 14:24 54:14 35,000 [1] 25:13 Act [1] 32:22 answer [4] 8:9 57:22 Assistant [1] 1:22 beneficiary-friendly broader [2] 56:18 78: Sheet 1 $1 - broader Official charts [1] 78:24 21 [1] 33:7 determination [18] drawing [1] 39:3 brought [1] 13:22 check [25] 4:22 6:13 8: concerns [1] 62:15 counter-arguments 54:10 55:6,7,8 67:11 drop [8] 22:24 24:15 buckets [1] 75:17 7 10:11,15 11:18,23 condition [1] 29:19 [1] 32:12 68:1,16 69:2 70:2,3,4, 25:1,13,17,19 57:1,3 C 18:18 19:8 23:24 39: conditional [2] 28:22 counter-number [1] 5,13,20 71:5 73:25 dropping [1] 24:14 11,13 40:14 41:10,15, 36:22 81:17 74:7,9 drug [1] 75:6 c)(1 [8] 48:13 51:1 55: 21 51:12,13,20 52:4 conditions [1] 45:21 counting [7] 7:12 9:4, determinations [2] DSH [47] 3:14 4:12,12, 70:1,3,7,8 80:16 66:22 79:25 81:4 82: conference [1] 14:9 24 10:19,21,24 81:25 54:25 58:17 23 7:21 8:6,10 12:1, c)(2 [4] 51:1,4,7 81:1 20,22 confirm [1] 13:17 couple [2] 34:7 36:20 determine [5] 16:7 44: 17 13:22 14:5,8,19,20 calculation [1] 7:1 checked [1] 18:17 confuse [1] 8:4 course [2] 15:13 66: 12 51:9 66:11 67:1 16:4 19:12,13 30:7, calendar [7] 4:8 23: CHIEF [10] 3:3,9 30: confused [2] 45:12 17 determined [3] 3:22 14 33:13 37:12 38:9, 46:24 47:1 48:12 25 34:4 38:14 41:24 52:5 COURT [20] 1:1,16 3: 69:11 70:6 10,10,12,19 42:6 45:4 69:20 78:1 42:4 77:8 82:24 83:2 confusion [4] 80:12, 10,15 13:1 25:4 26: determines [1] 23:1 47:5,13,24 48:24 53: call [6] 10:22 18:16,18 choice [2] 44:6 47:23 20,21 82:12 17 28:25 29:2 36:15 determining [1] 42: 1 65:9,11,13,15,21,23 39:5 40:18 66:21 chosen [1] 37:3 congratulations [1] 42:5,25 65:14 72:3, 11 75:11,13,21 76:4 79: called [4] 4:3 71:24 CHRIST [2] 1:3 3:5 23:23 23 73:3 74:25 77:2 difference [11] 7:9 12: 22 81:23,24 82:23 79:11,20 Circuit [6] 8:24 9:2 64: Congress [12] 4:3 33: 78:25 80:11 20 21:22 24:4,10 41: due [3] 11:11,23 82:21 calling [1] 41:13 9,15,19 76:25 16 37:3,11 42:9,19 Court's [2] 5:1 44:9 6 44:25 54:5,7 56:5 duration [1] 79:1 came [1] 1:15 claim [2] 43:9,20 48:3,24 49:1,4 61:11 cover [5] 24:1,2,4 34: 72:11 during [5] 20:14 39:9 canon [1] 63:18 clarify [3] 5:20 8:17 71:22 15 64:20 differences [3] 21:13, 42:22 43:11 52:2 cap [6] 29:14,17 39:10 16:3 Congress's [1] 44:6 coverage [2] 36:17 13 53:12 E 59:7,13,18 class [2] 14:16 30:17 consecutive [2] 39: 54:15 different [28] 6:19 8: captioned [1] 60:16 clear [5] 17:11 47:8 20 56:11 covered [1] 33:5 19 10:7 15:11,21,24 Each [3] 54:25 65:11 capture [2] 47:14 53: 68:25 81:5,12 consequences [1] created [3] 4:3,4 37: 16:24,25 17:3 18:11 66:20 close [6] 37:25 38:4,7, 74:14 12 19:5 20:9,14,21 21:1, earning [1] 44:4 captured [1] 50:16 18,21 74:19 consider [1] 56:17 criteria [10] 12:14 40: 7 24:18 29:11 36:7,8, effect [1] 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17:5 25:24 35:21,22, 57:1 60:19 61:1 discretion [2] 67:1,4 15,25 28:16,17,19 29: CENTER [2] 1:3 3:5 common [1] 12:9 25 40:16 50:23 59:14 day [3] 36:13,17 53:24 discuss [1] 53:8 5 30:4 40:6 46:22 47: cert [1] 76:15 comparable [2] 26:5 60:1 65:1 67:11 73: days [1] 26:10 disproportionate [3] 10 49:16 50:2,7,8 62: certain [7] 27:4 28:2 29:9 11 76:13 deal's [1] 24:7 37:15 42:8 65:18 4,4 68:24 69:2 70:18 35:6 36:8 40:4,5 43: comparison [1] 30: correctly [1] 10:4 decides [1] 74:25 distinct [3] 23:5 43:2, 71:6 74:4 82:20 10 cost [2] 37:13 45:17 deemed [1] 27:2 7 emphasized [1] 21:9 certainly [1] 12:2 compensate [2] 42:7 costlier [1] 4:15 defending [3] 9:21,22, distinction [7] 12:25 emphasizes [1] 22: cessation [2] 13:11 65:17 costly [5] 30:18 46:11, 23 22:10 23:7 24:20,22 20 62:17 compensating [1] 45: 13 47:16 48:6 defined [1] 70:19 39:3 48:25 Empire [22] 3:15 7:3, challenge [2] 9:5,16 16 couldn't [1] 34:12 definition [3] 6:24 10: distinguishes [1] 22: 23 12:13 13:1 15:15 challenges [2] 8:25 9: completely [3] 15:21, counsel [6] 8:15 31:1 14 14:24 3 16:5 20:14 21:6,8 26: 25 18:21 41:25 77:9,17 82:25 delta [1] 81:21 distinguishing [1] 12: 7 28:23 29:1,13 36:9, challenging [3] 8:18, complicated [1] 16: count [18] 4:18,19,20, denigrating [1] 31:12 6 24 43:1 54:3 55:3 65: 52:10 19 22 6:16 8:2 10:2 14: Department [1] 1:23 doing [2] 9:23 10:4 15 72:4 73:3 change [4] 4:16 30:22 concede [1] 69:25 14 44:3 45:7 82:3,4,5, depends [2] 9:17 24: dollars [5] 27:5,20 30: enacted [2] 42:19 60: 61:2 75:1 conceive [1] 12:10 7,8,9,15,17 23 21 65:10 78:20 23 changed [1] 76:1 concept [5] 23:11,17 counted [13] 7:2,21 8: described [1] 14:13 done [4] 58:11,11,18 end [4] 4:12 19:1 53:3, changes [2] 57:12 58: 28:22 78:7 79:5 11 9:8 11:5,20,23 48: description [1] 23:4 69:25 8 concern [2] 20:15 65: 22 52:19 54:3 80:24 designed [2] 42:6 71: down [4] 16:14 22:17 enduring [1] 21:10 chapter [1] 29:6 5 81:4 82:22 11 26:4 50:19 enough [4] 4:6 10:10 charge [1] 7:11 concerned [2] 7:5 38: counter-argument detail [2] 37:11 38:7 draw [1] 11:6 23:25 30:19 Sheet 2 broader - enough Official enrolled [2] 14:14 40: 30:9 36:23 23:3 26:20 61:24 5:22 7:12 9:21 11:12 70:22 76:21 77:21 71:8,8 72:14 82:1 exceeded [2] 26:9 56: focused [1] 31:19 13:13 18:7 19:3,3 22: hospice [1] 54:16 income's [2] 30:15 57: enrollees [1] 14:17 12 focusing [3] 14:16 20: 20 23:13 24:23 25:3 hospital [14] 8:2 12:4 4 enrollment [1] 44:14 excess [4] 25:6 26:20 19 40:9 32:6 39:11,23 40:11, 29:15,17 30:18 42:22 inconsistency [1] 33: ensuring [1] 4:13 28:2 35:7 following [2] 19:24 16 41:1,14,15,19 66: 43:11,14 52:25 53:23 19 entire [1] 45:20 excluded [4] 15:1 33: 35:12 10 67:5,8 54:15 56:3 59:7 82:2 inconsistent [1] 44:6 entirety [1] 48:8 13,18 52:13 forgot [1] 63:14 government's [16] 4: hospital's [3] 8:12 30: indeed [1] 27:25 entitle [2] 16:9 20:7 excludes [1] 14:22 form [5] 17:21 18:25 17 5:10 6:15 7:17 8:4 23 76:4 indirect [1] 49:5 entitled [57] 3:13,16, exclusively [2] 33:12, 41:9 58:18 79:14 9:18,19 10:14,18 20: hospitalization [3] indisputably [1] 8:1 10:15 11:18 12:23 15 formula [4] 37:21 44: 1,12,16 24:15 32:11 45:7,10 64:22 individual [6] 40:6 46: 14:21 15:9,13,14,16 excuse [3] 47:25 68: 11 76:3,5 33:7 67:10 hospitalized [1] 49: 22 68:24 70:18 71:6 16:11,13,17,17,22,24 21 69:13 found [1] 11:17 graduate [1] 23:22 17 79:24 17:1,9,14 18:8,9 19: existed [1] 49:3 fourth [2] 31:17 80:19 ground [2] 20:21 81: hospitals [19] 4:13 37: individual's [2] 45:14 22,22 20:5,13 21:17, existing [1] 60:25 fraction [12] 6:18,25 7: 13 6,7,14,16,23,24 38:4 70:10 23,25 22:1 27:7,25 expenses [1] 72:17 2,24 12:17 14:5 42:9, group [3] 13:25 14:1 42:7 45:16 59:13 65: individuals [25] 6:17 28:5,12,21 34:24 36: explain [3] 48:15 75:8 20 43:1 46:9 53:1 76: 50:15 7,10,12,17,18 74:15, 7:20,23,25 10:20 11: 40:21 41:2,17 42: 76:16 3 guarantee [1] 30:5 19 75:9 4,7,13,19,22 12:1 13: 43:2,3,5,10,16,18 explained [2] 51:23 fractions [1] 6:19 guaranteed [5] 4:7 housed [2] 5:14 32:19 25 25:1 26:19 30:11, 44:5 46:22 49:24 51: 72:3 frankly [1] 80:21 23:18 24:11 31:14 41: housekeeping [1] 60: 17 35:5,10 80:6,22 54:14 64:21 72:7 explanation [1] 28:9 friend [3] 46:3 52:7 71: 22 17 81:3 82:1,4,13,18 80:5,8,9 exploring [1] 53:13 17 guess [2] 16:21 38:20 HUMAN [1] 1:8 ineligibility [5] 51:6 entitlement [17] 20:4, expressly [1] 71:22 full [3] 6:9 27:8 28:6 H hundred [3] 49:7,8 76: 56:23 57:11,24 62:2 8,8 28:22,24 36:22 extensively [1] 51:24 fully [2] 42:24 75:8 6 ineligible [3] 60:20 62: 39:5,8 42:10 44:7 49: extra [3] 39:15 46:2,5 function [1] 79:20 happen [5] 34:11,12, hypothetical [9] 27:1 5 74:2 61:2 67:15,16,16 extremely [1] 56:24 functions [4] 71:18 12 37:6 50:4 30:9,14 34:9 35:3,3 information [2] 78:13 72:5 73:4 extremes [1] 10:7 72:1 79:12,15 happened [1] 61:18 45:18 49:9 50:17 81:16 EPHRAIM [3] 1:22 2:6 F fundamental [1] 61:2 happening [1] 81:12 hypotheticals [2] 35: inherently [1] 71:11 42:2 fundamentally [1] 43: happens [4] 9:3 37:2 9 49:16 inherits [1] 46:1 erroneous [1] 46:20 facility [1] 6:8 7 66:16 68:2 I initial [2] 67:10,25 error [1] 63:17 fact [8] 31:20 36:7 61: funded [1] 32:23 happy [1] 77:4 Instead [3] 6:10 18:2 especially [1] 5:16 4 72:23 75:8 78:3 79: funding [1] 32:25 hard [1] 55:15 icing [1] 32:3 35:9 ESQ [3] 2:3,6,9 17 82:2 further [1] 77:12 hardest [1] 63:7 idea [2] 73:10,12 insurance [40] 4:5 17: ESQUIRE [1] 1:20 factual [2] 74:16 75: future [2] 72:13,17 harm [1] 75:7 identify [1] 30:17 25 22:22 23:4,7,8,9, essentially [5] 33:10 20 G HEALTH [26] 1:8 3:15 ignoring [1] 7:13 15 31:13,25 34:14,14 55:3 58:16 63:16 76: fall [6] 8:19 11:13 35: 4:15 7:23 13:1 20:15 imagine [3] 10:3,13 35:1 36:14 53:22,25 12 39:10 40:17 44:15 General [2] 1:22 47: 21:6,8 23:8 26:7 28: 45:19 59:9,17,19,20,22 71: establish [1] 49:12 fallen [1] 66:22 15 23 29:1,13 30:22 36: importance [1] 76:2 14,16,19,23,25 72:2,3, established [1] 45:8 falling [1] 23:4 gets [8] 14:4 28:1 45:4 24 43:1 45:21 47:17 important [6] 21:8 56: 5,7 73:10,17,18 79:10, establishes [1] 55:10 falls [1] 20:10 46:3,6 52:25 54:24 55:3 59:10,17,22 65: 24 57:2 59:4 62:1 75: 11,12,18,19,21,23 establishing [1] 48: far [5] 9:4 10:6 16:9 81:23 15 72:4 73:3 79:18 25 insure [1] 72:12 21:14 53:18 getting [13] 12:2 30: healthcare [2] 54:17 in-patient [1] 54:15 insures [1] 72:16 estimation [1] 81:20 favor [1] 22:10 21 31:16 33:2,3 48:4 72:17 incentivize [1] 37:18 interpretation [11] 4: ET [1] 1:4 February [6] 45:24 49: 54:1 59:12 60:3,10 healthier [1] 12:3 include [3] 11:4 14:25 17 9:6,7,19 10:1,6 20: even [25] 7:16 9:15 10: 19 50:19 51:17,19,20 73:7 75:10 81:3 healthy [2] 4:14 30:18 43:21 16 37:4 42:24 64:6 20:18 24:20 26:22 federal [1] 12:11 give [7] 18:17 25:3 45: hear [1] 3:3 includes [3] 11:15 15: 82:3 27:15 28:15 29:14 30: few [4] 13:4 35:14 71: 18 48:14 49:16 66:22 heard [1] 71:16 1,2 interpretations [1] 34:16 36:16 39:12 21 78:6 68:4 heart [1] 46:14 including [5] 5:6 11:8 21:18 43:10 44:3,15 50:1, figure [3] 76:19 81:14, given [7] 18:3 24:9 38: held [1] 8:25 42:15 49:21 64:3 interpreting [2] 20:13 54:1 59:7,12 60:9 15 19 53:24 64:14 69:3 help [1] 65:25 income [78] 4:5,6,8,9 22:19 72:7 73:12,15 figuring [1] 8:12 80:6 helps [1] 21:17 5:12,25 6:11,17,20,24 irrelevant [1] 52:4 event [1] 13:19 file [1] 82:15 gives [5] 18:1 19:4 39: hesitate [1] 19:10 7:8,10,13 8:1,11 10: isn't [14] 15:25 21:6, everybody [2] 61:17 filling [1] 41:9 8 40:3 66:25 HHS [2] 42:18 64:20 10 11:18 12:1 23:8, 10 29:24 44:18,18 47: 64:2 finances [1] 40:12 giving [2] 61:20 76:19 high [2] 50:18,21 18 24:11 25:7 26:20 4,17 52:12 67:25 71: everybody's [1] 61:7 financial [5] 13:8,10 goals [1] 45:16 higher [4] 26:18 37:13 27:3 28:3 29:24 30: 5 73:18 79:5,10 everyone [2] 34:23 69: 41:19 62:15 78:13 golden [1] 34:13 39:21 45:17 15,19 31:14,25 35:7, isolated [1] 64:6 find [3] 5:7,9 33:21 GORSUCH [21] 26:25 history [1] 14:8 10,16 39:10,21 40:4 issue [6] 28:23 33:8 everything [4] 14:25 first [14] 3:4 4:7,21 11: 27:12,17,21,24 28:5, hold [2] 20:21 33:11 41:21,22 42:12,16 43: 55:3 77:5,23 80:20 19:11 20:23 72:9 15,19 16:16 25:8 30: 10,12,15 29:7 34:5 holder [1] 36:23 24 44:3,4,15 45:8,9 issues [1] 47:17 everywhere [1] 63:21 20 49:25 51:8 68:12 62:7,10,13 63:2,6,24 home [6] 4:20 7:8 11: 46:24 47:14 48:5,10, itself [2] 33:13 40:20 exact [1] 48:21 71:21 72:3 82:5 64:4,7 65:4 77:12 9 54:16 59:10 82:5 21 50:12,18,19,21 51: J exactly [9] 14:6 20:6 fiscal [1] 53:4 Gorsuch's [2] 34:9 homes [1] 7:7 9 55:11 56:11 57:5, 41:5 53:2 59:15,21, flatly [1] 44:6 49:9 Honor [13] 8:8 46:15, 20 58:16,21,25 62:23 j)(1 [1] 61:25 61:23 64:23 fluctuate [1] 62:20 got [3] 50:4 64:4 78:18 18 48:9 50:6,23 64: 66:8,13 68:14,14,17, j)(1)(b [1] 80:16 example [4] 26:1,10 focus [5] 17:7 20:25 government [25] 3:24 17 67:12 68:6 69:5 22 69:3 70:14,20,22 JACKSON [37] 12:5 Sheet 3 enrolled - JACKSON Official 13:20 14:1 38:16,17 73:9 79:14 litigation [3] 9:15 10: 2:6 42:1,2,4 44:20,24 Medicare-eligible [1] months [28] 4:8 11:1 39:22 40:21,24 41:12, Katsas [1] 64:24 3,5 45:3 46:15,18 47:7, 25:11 24:5 27:4,13,24 28:2 45:11 46:16 47:4, KAVANAUGH [50] 18: little [6] 7:5 32:17 38: 19 48:7 49:1,22 50:6, meet [3] 27:10 39:25 29:23 35:6,15 39:20 8,22 48:17 58:3 65: 23 19:14,17 22:11,14 20 62:11 72:22 76:23 13,22,25 51:3,13,18 67:21 53:3 54:12 56:11,22 66:4,19 67:3,7,18, 23:12 24:13 25:17,21, lived [1] 45:19 52:14 53:2,11 54:7, meets [1] 42:14 58:22 60:10,21 61:12, 68:19,21 69:9,13, 24 26:2 34:6,7,20 35: long [5] 24:12 25:15 20,23 55:5,20 56:4,13, MELISSA [5] 1:20 2:3, 13,14,16 62:2,2,23 63: 15,18 70:11,17,24 71: 17,23 36:1,5,12,25 37: 39:19 41:20 43:12 22 57:8,15,18,23 58:6, 9 3:7 77:19 25 78:14 81:9 1,4 77:16,23 24 38:3,13 53:9,12 longer [3] 5:25 25:22 8,12 59:15,21 60:1,4, mentioned [1] 62:13 months' [1] 61:6 January [6] 45:22 49: 54:18,21 55:4,14,25 82:14 11,15 61:9,23 62:8,12, met [1] 41:3 morning [2] 3:4 15:8 17,18,19 50:18,21 56:8,20,25 57:13,16, longstanding [1] 74: 14,25 63:4,8 64:1,5, metric [3] 49:3 70:23 most [10] 6:12,14 13:5 jewelry [1] 46:1 19 58:10 71:13 72:19, 23 17 65:8 66:3,14,25 76:8 14:18,19 17:20 25:14 job [2] 24:1 78:19 25 74:13,22 75:12,23 look [31] 13:2,4 14:7 67:6,12,23 68:6,20 micro-analysis [1] 35:18 65:16 68:2 join [1] 50:4 76:9,18,23 77:3,6,14 16:6 20:12 21:1 25:9 69:5,12,14,16,19 70: 15:18 Ms [66] 3:6,9 5:5 6:2,5 joined [2] 49:20,23 Kavanaugh's [1] 58: 26:5 29:3 30:7 32:20 16,22,25 71:2,7,20 72: might [16] 10:12 11:24 7:15 8:16,22 9:1,12, joins [1] 49:17 5 33:24 34:1 38:25 46: 21 73:2,23 74:21 75: 19:6 26:8 27:1 36:7 17 10:17 12:19 13:24 Joint [3] 25:3 26:16 keep [4] 22:11 59:12, 23 51:8,25 58:20 63: 19,24 76:12,21,25 77: 40:18 53:17,22,24 55: 14:6 15:6 16:2 17:6, 78:25 18 79:8 10 68:22 70:8 74:5 4 17,18 58:23 75:13,16, 19 18:10 19:9,15 20: Judge [1] 64:24 key [1] 19:9 78:11,23,24 80:14,15 mean [40] 3:20 7:16 9: 16 11 21:12 22:13 23:6, judgment [1] 74:17 kicked [1] 79:3 81:1,1,7,19 18 12:10,16 13:3,14 million [5] 27:4,19 30: 16 24:19 25:19,22,25 judgment's [1] 76:10 kind [5] 9:3 17:25 45: looked [1] 3:15 15:10,11,17,24 16:11, 13,21 78:20 26:3,25 27:9,14,19,23 June [3] 45:25 46:6,13 21 68:1 75:6 looking [8] 30:12,15, 14,15 17:9,17 18:6,14 million-dollar [2] 34: 28:4,7,11,14,17 29:8 Justice [186] 1:23 3:3, kinds [5] 19:5 24:22 16 40:2 49:12 54:22 19:19,19,22 20:5,13 19 35:2 30:1,3 31:22 32:15 5:2,20 6:4 7:4 8:14, 29:15 59:8 66:9 58:15 59:6 23:12,14 29:10,12 30: millionaire [2] 34:10 34:17,23 35:22,25 36: 16,23 9:10,13 10:8 knowing [1] 24:10 looks [1] 38:22 1 34:10 36:6 38:6 47: 35:7 3,19 37:9 38:1,5 39: 12:5 13:20 14:1 15:5 L lose [3] 9:10 37:5 63: 8 53:15 55:15 61:5 minimum [3] 4:7 23: 17 40:15,23 41:5,18 16:20 17:17,20 18:22, 14 63:25 65:6 68:12 77: 18 24:11 73:10 74:14 77:18,21 23,24 19:14,16,17,19, lack [1] 26:11 lost [1] 9:14 5 79:18 minute [1] 15:6 83:1 21:3 22:11,14,15, lag [1] 80:20 lot [3] 11:24 71:14,15 meaning [3] 3:12 20: misreading [3] 46:21 much [5] 32:22 38:21, 23:12 24:13,17,17 language [8] 9:6 13:3 lots [3] 19:5 29:12 53: 24 79:2 47:20 51:1 22 44:4 46:10 25:17,21,24 26:2,25 14:10,13 15:24 29:1, 22 means [10] 3:17 16:9, Mm-hmm [4] 6:4 29:7 multiple [1] 55:17 27:12,17,21,24 28:5, 9 64:14 lottery [1] 35:8 12,13,16,22 17:11 43: 51:2 55:4 N 10,12,15 29:7,10 30:2, large [1] 36:1 low [26] 4:6 6:17,20,24 5 46:23 63:25 moment [1] 32:11 31:2,3,4 32:10 34: larger [2] 13:25 14:1 8:1,11 10:10 11:17 meant [4] 15:17 16:23 money [9] 23:25 24:2 name [1] 56:16 3,4,4,5,6,7,9,20 35:17, last [4] 37:1 46:24 47: 12:1 30:15,15,19 31: 60:24 61:1 37:15 41:1 46:3 50:3 national [1] 4:4 36:1,5,9,12,25 37: 1 58:25 15 42:11,16 44:3,15 measure [2] 4:24 49: 65:16 78:17,18 natural [1] 72:4 38:3,13,14,14,16, lasts [2] 3:23 13:11 45:8,9 47:14 48:5 50: 6 monitoring [1] 40:12 nature [5] 15:7 19:1 17,18 39:1,22 40:21, later [3] 52:16 53:1 58: 12 58:21,25 72:14 82: measurement [1] 81: month [83] 5:25 7:14 20:3,7 74:19 41:12,23,24 42:5 17 1 8 8:2 11:10,11,15,19 nearly [1] 26:23 44:10,20,22,25 45:11 Laughter [1] 36:11 low-income [16] 4:14, measures [3] 6:20,21 13:17 18:16,18 23:25 necessarily [1] 75:1 46:16 47:4,8,22 48: layer [1] 54:24 18,19,21,24 7:23 30: 60:8 24:10 27:5 30:21 31: need [10] 6:9 16:7 21: 49:9,14 50:1,11,14, lead [1] 19:20 11 37:14 42:8 44:7, measuring [1] 79:1 16,21 35:11,12,18 39: 16 27:11 31:25 32:8 51:2,11,15 52:5,24 least [9] 14:12 21:7 22: 12 45:6,17 49:11,13 Medicaid [16] 4:19 5: 9,13,14 40:11,12 41:8, 34:15 37:15 57:8 82: 16,23 23:2 31:14 43: 19 53:9,12 54:18,21 55: 65:19 6,17,21,24 6:8,21,25 16 42:15,17,22 43:11, 4,14,25 56:8,20,25 57: 12 56:14 57:3 M 7:5,8 15:3 28:19 30:4 17,19 45:6,9,15 46:8, needed [3] 4:9 33:17 13,16,19 58:3,4,8,10 left [5] 30:2,11 31:10, 32:17 33:20 80:8 11 48:2,4 49:25 50:4, 37:19 59:2,16,22 60:2,5,12 10 39:12 made [7] 13:1 42:14 Medicaid-eligible [1] 9 51:6,7,8,9 52:3,16, needs [1] 6:9 61:4,10 62:7,10,13 legislative [1] 14:8 43:25 50:15 67:19 79: 6:24 18 53:18,24 57:3,4,5, net [2] 37:7 79:15 63:2,6,24 64:4,7 65:4, less [5] 4:14 7:16 30: 6 81:11 MEDICAL [4] 1:3 3:5 7,17,22 58:16,21 61: nets [1] 37:8 66:4,19 67:3,7,18, 17 46:13 75:16 mail [1] 19:8 59:8 72:9 18 62:6,20,21 63:14, never [2] 34:15 71:24 68:19,21 69:9,13, level [1] 48:21 main [1] 29:13 Medicare [67] 3:16,18 15 66:16,23 67:14 68: new [2] 73:24 78:19 15,18 70:11,17,24 71: life [1] 45:20 maintaining [1] 75:2 5:21 6:18 12:14 15: 12,14 71:11,11 73:13, next [11] 18:18 39:9, 1,4,13 72:19,25 73:9 lifted [1] 53:6 majority [1] 73:6 14,17,18 16:25 17:3, 15 78:12,17,19 80:6, 14 57:3,5,7,17,21 70: 74:13,21 75:12,23 76: likely [5] 25:10 34:18, man [1] 45:19 25 20:9 21:2,7,11,22 23 81:10,11 82:2,5 17 73:14 78:19 9,18,23 77:3,6,8,10, 21,22,22 manual [1] 81:7 22:18,25 23:2,5 25: month-to-month [11] non-cash [10] 5:6,12 11,12,14,15,16,23 79: limit [10] 35:18,20 48: many [2] 37:16 59:8 18 26:12 29:2,9,11,16, 18:3 26:7 55:6,12 56: 31:23 32:1,5,9 33:8 82:24 83:2 10 55:11 57:5,6,20 margins [1] 38:7 19 34:13,15,16,24 36: 6 63:22 67:15,19 70: 43:22,23 80:3 K 68:15 70:23 71:10 marker [1] 48:5 5,13,16,17 38:19,24 23 71:12 78:12 nonetheless [2] 36: limitations [2] 28:24 matching [1] 10:25 42:9,19 43:1,3,7 46:9 monthly [22] 4:1 10:9 15,15 KAGAN [26] 15:5 16: 55:2 matter [8] 1:15 12:6 53:13,19,21,25 54:1,2, 18:13 19:7 23:9 41: nonsensical [1] 13: 17:17,20 18:22,24 limited [2] 18:12 74: 24:21 30:23 45:12 71: 8,25 55:17 56:18 59: 22 42:13 43:15 44:16 15 19:24 22:15 24:17 29: 20 22 74:16 75:20 6,12 64:20 68:7 71: 48:12 58:14 60:3 61: nor [2] 18:1 43:25 30:2 34:4 36:9 38: line [3] 11:7 30:24 45: matters [3] 21:2 79: 23 72:15,20,22 73:4,6 15 66:12,21 68:3,20 notable [1] 13:5 39:1 58:8 59:2,16, 20 22 82:23 74:8 76:3 79:21 80:4 69:23 70:1 71:10 78: Notably [1] 81:14 60:2,5,12 61:4,10 list [1] 4:22 McDOWELL [87] 1:22 Medicare's [1] 22:21 3 79:25 Nothing [2] 4:10 30:2 Sheet 4 JACKSON - Nothing Official notwithstanding [1] otherwise [2] 13:15 69:22 72:8 Petitioners [10] 1:5, presented [1] 64:19 60:22 61:7 63:21 64: 18:8 62:21 payable [1] 7:20 21 2:4,10 3:8 43:9,20 press [1] 55:15 20 65:16,24 70:18 November [1] 1:13 out [30] 4:20 6:3 8:8, payee [1] 82:19 44:2 69:24 77:20 presumption [1] 17: provisions [7] 13:4 nuanced [1] 14:25 12,19 9:20 11:13 13: paying [3] 6:8 26:11 Petitioners' [3] 46:20 13 29:6 32:12 60:18 62: number [5] 26:18,21 6 22:6,24 23:4 24:14, 54:2 62:3 74:18 pretty [3] 12:9 26:4 61: 14 69:3 78:3 76:14,16 81:22 15 25:1,13,17,20 30: payment [59] 4:2,10 6: phone [2] 40:18 41:13 7 proxy [7] 4:23,24 42: numbers [1] 79:5 11 41:9 44:16 53:14 9,10 10:9,24 11:11 phrase [1] 19:21 prevails [2] 9:19 10:1 10 44:7 49:2,3,5 numerator [2] 52:20, 57:1,3 61:12 64:6 65: 12:8,21 14:4 16:12, phrased [1] 48:11 prevents [1] 65:23 purpose [5] 14:19 19: 23 66:22 76:14,20 79: 13,16 17:12 18:13 23: phrases [2] 43:2,6 previously [1] 76:5 13 44:11 45:4 48:19 nursing [5] 4:20 7:7,8 4 9 24:9 26:5,8,12,22 picked [2] 49:1,5 pricing [1] 75:6 purposes [16] 6:17 7: 11:8 82:4 outcome [1] 66:10 28:18,25 29:5,22 31: picking [3] 41:13 63:3, primary [2] 25:25 26: 21 8:5,5,12 13:21 15: O outlined [1] 69:4 14 39:2,6 40:13 42: 6 10 19 22:18 24:16 30:7 outpatient [2] 29:18 22 43:11,13,17 44:16 picks [2] 7:9 46:2 prior [5] 26:16 43:13 40:6 51:20 52:20 79: objections [1] 18:5 59:11 45:15 46:7,17 48:1,4, picture [1] 22:23 52:18 81:9,11 22 81:23 82:23 obviously [1] 23:8 outset [2] 63:12 66:15 22 49:18 50:8,20 51: piggyback [1] 38:11 prison [3] 11:22 12:2 pursuant [2] 45:24 66: occur [1] 78:5 over [11] 25:11 26:14 22 52:2 54:22 55:1,7 place [3] 4:7 30:20 34: 82:7 13 occurs [1] 68:4 27:4 35:10,18,18 37: 56:1 60:10 63:23 67: 1 private [4] 34:14 36: pursue [1] 62:10 oddity [1] 16:10 4 46:24 54:10 73:8, 19,20 70:1 72:6,10 placed [1] 7:7 14 53:22,25 pushing [1] 17:8 off-the-rack [1] 49:2 12 75:22 76:4 80:5 places [2] 8:3 64:9 probably [6] 5:12 17: put [4] 17:17 18:25 20: often [1] 25:2 over-65 [1] 26:21 payment-eligible [2] plausible [1] 37:3 12 27:10,14 35:7 77: 25 76:14 okay [14] 18:21 21:3 overcome [1] 17:13 11:10 81:10 please [4] 3:10 41:14 7 putting [2] 33:8 65:23 36:25 38:13 46:4 47: overnight [2] 4:16 30: payments [20] 21:9 42:5 66:22 probation [1] 82:8 Q 49:15 50:24 58:12 22 26:7 35:6 42:13 43: plural [1] 14:21 problem [2] 7:17 20: 60:6 70:25 77:6,13 owed [1] 43:10 16,22,25 45:23 48:20 point [24] 13:6 21:14 16 qual [1] 27:11 78:10 owes [1] 46:3 53:16,17 54:2 56:7 24:7 26:15 35:20 37: problems [1] 6:15 qualifications [1] 20: once [9] 19:5 21:24 own [5] 24:3,6,7 55:13 60:3,17 64:22 65:9, 10,17 38:23 44:13 49: procedure [1] 69:10 20 23:19,19 26:4 41:10 81:15 11,21,23 10 55:23 58:7,12 62: Procedures [1] 60:16 qualified [1] 53:21 52:22 53:5 54:12 P payor [1] 26:11 1 65:15 68:15 69:6 process [4] 10:25 11: qualifies [2] 3:21 16:8 one [45] 6:14,20,21 7: pending [1] 58:23 75:5 78:4 79:9 80:2, 17 18:16,19 qualify [12] 4:6 12:16 24,24 8:3 11:2 13:5 PAGE [7] 2:2 25:4,12 people [35] 6:12,23 7: 11,19 81:13 program [88] 3:18,21, 18:12 19:6 30:20 32: 14:22,25 15:11,12 16: 26:16 69:24 76:15 78: 6 8:19 13:23 18:14 pointed [3] 8:8 66:4 22 4:1,4,4,5 9:9 12:6, 25 33:9 75:13,14,15, 19:6 20:12 22:21 4 17,20 22:24 25:5,13,17,19 78:24 14,23,24 13:14 14:2, 24:14 28:9,11 29:13 pages [2] 9:24 13:7 26:8,21 35:17 44:14, pointing [1] 66:6 15,16 15:17,20 16:8, qualifying [2] 3:17,20 30:21 31:15 33:24 34: paid [3] 29:5 53:24 80: 15 45:6,17 47:14 48: points [2] 70:7 71:21 23 17:25 18:1,15,20 question [16] 8:9 16: 37:4 40:10 42:25 23 20 49:11,21,24 50:12, policy [1] 72:8 19:4 20:20 21:20 22: 21 19:1 22:15 37:1 48:22,23 55:5,18 59: pales [1] 30:9 16 52:13,21 53:22 61: poor [1] 47:1 2,22 23:19 24:8,12,25 48:2 52:3 54:19 57: 9,18 60:3,18 62:14 panoply [1] 18:1 1,11,19,21 67:21 79: pop [2] 35:10,18 25:1,14 28:8 31:9,13, 14 58:5,24 60:5 64: 63:7 64:6,9 66:9,23 paper [1] 74:6 25 82:22 population [7] 4:18, 18,24,25 33:2,23 34: 19 71:13 79:10 82:6 75:24 78:3,4 82:12 parents [1] 23:22 per [2] 78:7,15 24 25:9 37:14,20 44: 16 35:14,19 38:25 39: question's [1] 57:16 ones [2] 29:14 81:16 parole [1] 82:8 percent [10] 25:8 49:7, 12 80:8 4,8,25 40:25 41:10,11, questions [8] 5:1 23: only [30] 4:1 6:11 7:14 Part [31] 3:16,18 16:12 8 75:15,21 76:4,6,6,7 portion [1] 64:18 20 44:14 47:13,24 48: 1 24:17 34:8 44:9 52: 9:23 10:20,24 17:7 19:10 21:2,23 22:5 80:7 position [7] 32:7 44: 24 49:20 50:4 53:16, 7 59:4 64:8 29:21 31:10 32:7 35: 23:19 26:13 29:2,9 percentage [3] 36:1,4 21 64:24,25 74:23,24 21 54:4,13 55:8,24 quick [1] 64:7 38:10 42:21 43:21 31:6,7,18 32:13 40: 75:11 81:18 56:10,18 59:6,9 60:9 quite [4] 25:15 29:11 44:14 45:7 50:3 55:5, 16 43:3,7 47:5,9 54:9, percentage-wise [1] positions [1] 33:19 62:4 65:13 66:11 67: 35:1 74:11 59:25 60:2 63:1,4, 25 56:17,19 68:7 71: 35:24 possible [2] 9:14 65: 10 68:3,8,13 72:2 74: quo [3] 75:1,3 76:1 64:1,20 67:20,22 23 72:15 73:4 74:8 perfect [2] 49:6,8 17 10,20 75:6,10,22 77: R 70:4 78:12 75:21 80:4 period [4] 56:2,3,10 post-hospital [1] 54: 22 78:7 79:4,12 opening [1] 69:24 Partially [1] 16:2 73:20 16 program's [1] 81:6 raised [1] 65:6 operates [1] 38:22 particular [22] 9:16 periodic [1] 67:14 posting [1] 48:9 program-eligible [1] ran [1] 17:10 operation [1] 81:7 11:10 12:21,22 14:22 person [24] 3:21 4:6 7: potential [1] 75:7 5:15 range [1] 45:20 opinion [2] 64:15,18 26:9 38:9 42:15 43: 18 14:4 27:2 29:23 poverty [1] 45:19 programs [5] 12:11 rarely [1] 17:15 opposed [1] 58:18 17 45:15 46:10 48:2, 30:4,14,19 33:2 40: powerful [1] 31:11 38:11 55:23 56:1 68: rate [4] 48:12 69:8,20 oral [5] 1:16 2:2,5 3:7 4 53:18,23 60:10 63: 24 41:3,7 42:14,20 practical [1] 45:1 2 76:7 42:2 15,20 72:2,8 73:13 43:9,16 46:12,25 47: practice [4] 56:14 60: prolong [1] 57:2 re-authorize [1] 63: order [1] 37:16 80:15 9,10 51:10 62:3 78: 25 78:10,11 promised [1] 4:7 12 original [1] 41:3 pathways [1] 75:9 21 precise [4] 45:5 49:11, proper [1] 37:21 reach [1] 59:17 other [22] 4:11 5:2,3 6: patient [7] 4:19,21 7: person's [1] 46:24 15 56:2 protects [1] 72:16 reached [4] 29:14,17 59:7,13 7:24,25 9:14 11: 13,14 42:11 46:10 82: perspective [2] 61:8 precisely [1] 53:4 provide [7] 37:18,18 12:10 17:19 18:20 5 76:24 predictive [2] 74:16 52:15,22 65:10,16,21 read [6] 17:5,13 19:21 29:15,19 31:20 35:8 patient's [1] 42:10 Pet [1] 64:23 76:10 provided [3] 32:18 33: 20:18,19 63:9 38:10 40:8 52:7 53: patients [5] 4:14 11:9 petition [1] 76:15 preexisting [1] 49:3 15 43:25 readily [2] 22:25 24: 19 59:8 71:17 75:9 42:8 44:3 65:19 Petitioner [2] 44:10, premise [1] 46:20 provision [12] 13:9 others [2] 19:7 37:17 pay [5] 24:6 55:17,19 19 present [1] 29:3 22:19 42:6 45:4 48:1 reading [6] 45:2,2 62: Sheet 5 notwithstanding - reading Official 65:1 77:24 80:25 25 71:22 result [4] 45:21 48:20 seeing [1] 7:14 side [6] 20:25 21:19 2,23 34:10 42:10,13, reads [3] 33:12 63:22 referring [2] 47:5,17 63:19 64:1 seem [3] 12:6 66:6 81: 33:8 52:7 53:20 71: 20 43:3,8,10,15,18,20 64:20 refers [3] 62:1 68:16 retain [1] 19:7 3 17 44:5,7,14 45:23 47: real [5] 7:16 33:18 34: 69:7 retroactive [2] 52:19 seemed [1] 64:10 significant [4] 6:15, 11 48:8,10 49:2,17 37:2 41:6 reflected [1] 52:21 53:5 seems [10] 10:8 20:2 18 36:3 38:8 53:15 55:11,18 56:6 real-world [1] 30:10 regulation [2] 5:21 51: retroactively [2] 52: 29:10 48:19 55:14,16 similar [6] 12:12 22: 64:21 71:25 72:1,12, realistic [2] 37:25 38: 24 17,24 67:7 68:25 81:4,8 17 23:2 53:20 79:20 14 80:8 regulations [7] 7:19 revealed [1] 82:6 sells [1] 46:2 80:4 SSI-eligible [1] 78:21 realistically [1] 37:6 13:17 22:5,6 45:25 rich [1] 76:23 semantics [1] 82:13 similarities [1] 53:10 stability [2] 26:12 35: reality [2] 25:14 35:5 79:7 81:2 risks [1] 72:13 Senate [2] 14:8,10 similarly [1] 17:2 16 really [12] 6:18 9:2 24: regulatory [1] 40:19 ROBERTS [8] 3:3 30: send [4] 23:24 39:11 simply [5] 4:17 18:2 stable [1] 25:16 29:22 34:15 38:23 rehab [3] 28:20 30:5 25 34:4 38:14 41:24 40:13 41:14 43:18 60:24 82:3 starkest [2] 17:21 18: 59:4 71:18 73:18,18 31:8 77:8 82:24 83:2 sense [13] 6:5 11:24, since [3] 42:19 49:4 25 78:9 79:10 rehabilitation [5] 5:8 roughly [1] 25:12 25 14:3 19:4 45:1 47: 74:24 start [4] 15:7 16:4,5 reapplication [1] 73: 15:4 31:5 32:16 80: routinely [1] 44:3 13,15 53:20 56:18 61: single [5] 13:16 43:12 32:15 10 rule [11] 10:22,23 32:2, 18,19,21 63:13 67:14 68:13 starting [2] 77:22 78: reapply [3] 58:4 61:6 reimbursed [1] 4:13 6 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16: 76:1 reassessed [1] 78:2 3 54:19 56:2 64:18 19,20 12:25 14:11 15: 19 72:9 7 34:13 45:8 48:21 statute [46] 6:3 8:5 13: reassessments [1] 71:5,7,9 79:13 10,24 16:16 20:6,24, SERVICES [3] 1:8 26: 51:5 52:1 66:16 78: 6 15:18 16:4,6 17:5, 67:14 relevantly [1] 24:18 24 21:25 22:5 33:21 9 37:19 16 80:5 82:21 10,15 18:9 21:1 22:3 reauthorization [1] relied [2] 29:2 72:23 43:6 48:21 55:22,24 serving [2] 42:7 65:18 someone's [3] 5:24 29:4 38:20 40:2,5,20 13:16 relies [1] 5:22 56:18 58:16 62:6 67: set [7] 38:24 48:12,24 49:16 56:16 45:24 46:19 47:2,5,9, reauthorize [2] 63:13, remain [1] 4:11 25 79:16 53:3 68:22 69:1 70: sometime [1] 43:13 11 48:8 49:23 54:8 remand [1] 9:15 satisfies [2] 42:21 52: 19 somewhat [1] 34:18 60:13,23 62:9 63:5, REBUTTAL [3] 2:8 remedy [1] 64:14 1 Setting [1] 40:8 sorry [7] 13:7 22:12 21 65:20 66:2,13,25 77:18,19 removing [1] 60:25 satisfying [1] 10:13 Shall [3] 40:6 47:10 47:25 57:2 58:9 69: 69:1 70:4 71:10,12 receipt [8] 10:22 51: rent [3] 23:24 24:1,6 saying [14] 12:13 15:9 68:23 15 70:11 77:24 78:7,15,22 79: 23,25 52:12 64:10,16 replies [1] 5:22 16:11 20:2 41:14 47: share [3] 37:15 42:8 sort [7] 12:10,12,17 6 80:15 81:1 65:3 82:11 report [4] 14:8,9 57: 20 51:14 59:5,24 71: 65:18 14:4 15:17 60:8 73: statutes [1] 56:6 receive [6] 5:24 49:18 11,25 4,9 74:15,18 78:9 she'll [1] 73:11 18 statutory [8] 10:14 13: 52:4 53:17 57:6,21 representative [1] 82: says [18] 3:25 13:9 29: she's [2] 50:20 51:16 SOTOMAYOR [15] 5: 7 22:19 29:1 44:23 received [2] 43:12 54: 19 5 40:5 47:9 48:1 50:8 SHERRY [70] 1:20 2:3, 20 6:4 7:4 8:14 31:4 52:1 65:22 69:17 request [1] 40:18 51:7 58:25 60:18 62: 9 3:6,7,9 5:5 6:2,5 7: 32:10 34:3 49:14 50: stay [8] 25:14 29:18 receives [2] 29:23 51: requirement [3] 40: 16 63:17 64:19 68:23 15 8:16,22 9:1,12,17 1,11,14,24 51:2,11,15 35:19 37:16 42:23 43: 19 42:16 44:17 70:9,13,18 78:16 10:17 12:19 13:24 14: sounds [1] 31:17 12,14 53:24 receiving [4] 45:23 requirements [4] 42: scale [1] 30:12 6 15:6 16:2 17:6,19 specific [2] 8:9,18 step [3] 15:5 30:7 54: 53:15 56:1 61:21 15,21 52:2 78:2 scheme [1] 12:11 18:10 19:9,15 20:11 specifically [2] 73:3 13 recipient's [2] 62:17, requires [1] 70:1 scope [1] 61:2 21:12 22:13 23:6,16 80:15 still [15] 9:14 10:15 11: resist [1] 17:22 seamlessly [1] 58:18 24:19 25:19,22,25 26: spend [1] 32:11 9 16:10 19:11,13 28: recognized [2] 26:8 resource [1] 27:10 season [1] 36:23 3,25 27:9,14,19,23 28: spending [1] 27:19 21 31:16 36:16 51:11 42:19 resources [8] 40:5 68: second [10] 11:8 16: 4,7,11,14,17 29:8 30: spent [1] 78:17 54:3 67:15 68:13 72: records [5] 13:8,10 18,23 69:3 70:7,15,21 17 17:24 31:17 38:25 1,3 31:22 32:15 34: SSA [9] 42:14 43:25 7 82:16 41:20 62:16,22 74:20 50:9,17 54:24 72:11 17,23 35:22,25 36:3, 58:1 62:15,21 63:9, straight [1] 60:20 redetermination [1] respect [6] 10:5 13:2 79:9 19 37:9 38:1,5 39:17 20 66:25 69:21 strange [1] 78:15 78:5 29:12 68:7 79:13 80: Secondly [1] 32:23 40:15,23 41:5,18 74: SSA's [2] 60:18,24 strangers [1] 23:10 reduced [1] 76:2 4 SECRETARY [1] 1:7 14 77:18,19,21 83:1 SSI [78] 3:19,21,22,25 stream [1] 59:25 reevaluations [1] 67: respects [2] 21:8 22: Section [7] 48:16 51: Sherry's [1] 73:10 4:1 6:1,3,6,20 7:12, street [5] 18:15 23:10 18 4,4 60:16 61:3,25 68: shift [1] 46:2 20 8:5,10 11:25 13:5 40:25 41:7 79:25 reference [1] 63:5 Respondent [4] 1:9, 15 short [1] 24:3 14:11,15 15:15,20 16: string [3] 24:5 35:15 referenced [1] 70:5 24 2:7 42:3 secure [1] 62:15 shouldn't [3] 8:11 16: 6 17:1,4,10,15,24 18: 39:20 references [2] 60:6, response [2] 5:10 71: Security [3] 6:13 32: 6 33:9 12 19:2,4,7 20:9,20, structure [3] 15:19 54: 17 21 43:24 show [2] 21:20 68:13 25 21:7,9,17 22:1,17, 8 56:5 referencing [1] 47:24 rest [1] 66:13 see [7] 19:25 33:25 46: shows [2] 49:9 78:5 22,24 23:2 24:8,16,18 struggling [1] 45:13 referred [3] 5:17 33: rests [2] 32:7 46:19 25 51:16,17,18 69:15 sick [1] 50:5 26:15 27:3 29:3,4 33: stuff [1] 59:12 Sheet 6 reading - stuff Official subchapter [1] 40:7 48:18 62:1 71:22 Tuesday [1] 1:13 upheld [1] 42:25 wins [1] 19:3 subject [2] 29:6 73:25 textually [1] 48:15 turn [2] 34:24 51:21 urban [2] 37:7 65:7 within [3] 15:4 43:6, submit [2] 73:24 74:5 Theirs [1] 49:7 turned [2] 34:25 71:15 usage [1] 63:18 13 submitted [2] 83:3,5 there's [37] 3:25 5:8 8: turns [2] 45:22 72:9 uses [1] 43:1 without [2] 37:20 73: subpart [1] 22:5 6,7,10 11:8,22 12:20 twice [2] 15:10,12 utility [1] 63:17 16 subsection [9] 34:2,2 18:15,15,19,19,20 20: two [19] 3:14 6:19 10: V wondering [3] 12:8 46:21 48:13 55:9,10, 11 22:8 24:22,25 26: 7 19:23 20:6,11,13 39:2 66:8 70:1 77:25 11 28:9 30:2,5 32:5,6 21:7 22:21,23 23:1 valid [1] 13:18 word [4] 20:24 23:13, subsections [1] 80: 33:18 36:20 55:5,7, 24:22 30:12 32:12 33: variable [1] 26:23 14 43:5 18 58:23 59:24 60:2 19 43:1 54:6 64:7 72: various [1] 10:12 words [3] 3:11,13,15 subsequent [2] 52:16 71:3 74:8 79:19 80: 2 vast [1] 73:6 work [4] 17:16 46:2 58:22 12 82:12,18 twofold [1] 5:11 versa [1] 57:25 48:8 80:13 subsidy [1] 18:3 thereafter [1] 72:18 U versus [2] 3:5 39:5 worked [1] 47:2 substantive [1] 58:19 therefore [1] 53:23 vice [1] 57:25 working [1] 39:23 successfully [1] 72: They'll [2] 74:2 82:15 U.S.C [2] 71:24,24 view [8] 9:8,18 10:18 works [8] 12:18 22:10 they've [2] 26:9 45:8 Ultimately [1] 44:2 13:22 14:3 28:6 62:3 47:21 52:15 56:14,15 suggest [2] 26:24 62: thinking [1] 6:6 unambiguously [1] 64:12 59:17,23 third [1] 31:17 65:22 vigorously [1] 17:22 world [3] 21:25 34:11 suggesting [3] 17:23 THOMAS [7] 5:2 31:2 uncompensated [1] violate [1] 82:8 37:2 55:16,19 44:10,20,22,25 77:10 76:7 vocational [8] 5:8 15: X suggestions [1] 24: though [12] 16:21 28: under [58] 3:16 5:3,3, 3 28:20 30:5 31:5,8 15 32:4 34:16 36:16 9,13,16,18 6:11 9:7 32:16 80:9 XAVIER [1] 1:7 suggests [1] 38:4 44:4,15 50:1 54:1 59: 10:14 11:13 12:24 13: vulnerable [1] 37:20 XI [1] 33:10 superficial [1] 20:3 13 60:9 65:14 12 15:14,15,16 16:22, W XVI [27] 5:4,9,13,14,16, supplemental [1] 43: thousand [1] 18:5 25 17:1,2,4 20:9,9 28: 18 13:12 15:4 31:6,9 three [7] 9:24 10:2,21 6 29:16 32:18,24 33: waiting [1] 4:21 32:19,20,22,23 33:1,5, supplementation [2] 11:3 18:17 75:13,17 9,10,11,12,12,15,17, waived [2] 8:25 9:16 6,9,15,17,24 43:4,8, 14:23 33:14 threshold [23] 28:3 25 35:12,20 37:21 43: walking [2] 41:8,9 21 44:1 80:10,17 suppose [3] 17:21 27: 29:24 35:11 46:7,8 2,4,7,8,21 44:1 46:22 wanting [1] 14:14 Y 47:10 49:23 54:25 55: Washington [3] 1:12, 62:21 54:9,13 55:7,13 56:7 supposed [1] 57:11 61:13,14 62:24 66:2, 12 61:3 62:3 65:12, 20,23 year [24] 4:8 23:19 27: SUPREME [2] 1:1,16 7 67:9 68:1,10 69:1 13,24 72:25 73:15,21 way [18] 7:1 12:12 17: 4,8,22 28:6 31:13,15 20:19 21:2 30:22 39:9,18 43:13 46:24 suspect [1] 34:17 73:13,15,21 74:9 78:21 suspended [5] 4:10 throughout [1] 33:24 understand [13] 7:6 32:6 33:6 38:19 48:9 47:1,10 53:4,17 59:1 52:15 56:15 59:17,20 60:9,19 65:11 69:21 22:7,8 26:19 82:14 ticket [2] 36:23 80:13 22:16,24 23:3 44:22 63:10 76:11 79:16,20 73:20 78:1,20 suspension [1] 82:10 Title [29] 5:4,9,13,14, 45:14 46:12 59:2 65: suspensions [3] 22:4, 16,18 13:12 15:4 31: 9 66:1 67:18 70:24 ways [2] 20:12 72:2 years [2] 60:22 78:6 71:1 weeds [1] 77:7 yield [1] 63:18 53:6 6,9 32:19,19,20,22,23 system [1] 13:15 33:1,5,6,9,10,15,17, understanding [3] week [1] 53:24 yourself [1] 23:23 36:7,9 46:19 welcome [2] 5:1 44:9 Z talked [1] T 74 :14 T 2 1 o 4 0 d , 4 1 a 3 7 y : 4 [ , 1 8 ] , 3 2 : 1 1 2 4 4:1 80: u 3 n 9 d :7 e 6 rs 4 t :2 o 5 o d [3] 33:16 w 8 h atever [3] 7:9,10 8: zero [1] 54:2 talks [4] 14:20 29:4 70: together [3] 24:5 35: unemployed [1] 78: whereas [2] 72:14 80: 6 77:25 18 39:20 technical [1] 37:1 took [1] 17:9 unemployment [1] Whereupon [1] 83:4 term [3] 17:11,14 63:1 total [1] 25:13 79:19 whether [25] 10:4 12: terminate [2] 56:16, totally [1] 76:8 UNITED [2] 1:1,17 8,20,22,23 14:3 16:7 touched [1] 32:17 unless [1] 22:8 42:11 48:3,5 49:12, terminated [7] 3:24 4: towards [1] 53:8 unlikely [2] 27:5 34: 15 51:9,21 52:1,3,10 54:10 79:11,11,22,23 22:2 25:6 28:8 35: transferred [1] 12:3 11 56:9 transitioning [2] 51:5 until [12] 3:23 13:11, 80:22,24 81:5 terminating [1] 13:19 57:24 18 22:2 24:4 28:7 50: who's [4] 4:6 27:2 40: termination [1] 79:4 translate [1] 26:14 8 56:10 60:19 62:16 25 45:19 terminations [2] 22:4, treat [5] 4:15 37:14 46: 72:14 80:14 whole [3] 23:10 44:11 12 47:16,17 unworkable [2] 63:19 71:10 terms [11] 3:14 7:18 treating [1] 37:13 64:2 wide [1] 74:11 13:3,21 16:10 26:6 treatment [2] 29:18 up [24] 7:9 13:22 18: will [17] 10:1 23:24 37: 39:11,14 40:13 47: 29:17 48:11 69:7 77: 17,18 19:24 20:21 24: 59:11 52:17,19,21,23 63: 78:22 triggered [2] 5:15 33: 3,10 30:8 33:11 35:9 terribly [1] 20:3 22 41:8,13 46:2 48:24 18 73:25 75:2,9,24 test [2] 51:25 82:11 true [4] 17:6 21:10,11 49:2,5 66:21 68:22 76:13 text [5] 14:20 15:19 19: 82:13 69:1 70:19 79:6 81: win [2] 19:2 32:9 65:22 68:16 trying [5] 13:23,24 30: 15,21 window [1] 41:9 textual [5] 12:5 13:3 16 47:13 55:20 upbringing [1] 45:22 winner [1] 35:8 Sheet 7 subchapter - zero