To air in favor of saying okay we are going to this with you. At some point i wonder whether we have diminishing returns here. Thats more of a provocative question rhetorical question at this point. But i do think that constructs probably should urge us to think about whether its the way we should be doing these appeals. I would like to clarify one thing. He said the percentages you are looking at are on their recovery audit appeals. And the reversal rates on those appeals have been higher than the general reversal rate for the agency which as you know includes all appeals. So for 2014 and again the numbers i have are fully favorable decisions, that it was just 19. 3 . The numbers have been im sorry, that was fully favorable. I keep going to that number. I will get you a number on the reversal. Everything ive been told is that when cms is actually present at these hearings, that decisions are not made but the cms representative is oftentimes not present. So that suggests to me again that we have a system that isnt operating properly. We want fairness across the entire sectors so one provider shows up, has their appeal and cms person shows up and its not sustained another provider shows up in the same sort of circumstance that the cms person is not there and it is the same. We are not providing equal protection under the law. What we have found, and there is very limited data on this. It does come from cms but when there is cms participation at the hearing the reversal rate does go down. By how much . Do we know . I think its about 6 if i remember correctly. Its only over a few months of data that we have. I will get you the exact numbers but from about 46 down to 40 . Yeah 40 . As far as the reversal rates, i have got that number now which is on the disposition, the overall, the overall favorable rate is 32point 5 . We have been doing a number of things which have been designed to bring our policy interpretations in line across all levels in consistency and adjudication. Part of that is training and we have had approximately 20 training sessions have been delivered by cms, their doctors and their policy experts to the Administrative Law judges since 2010, and so what you will see if you look at the Historical Data is that the reversal rate has actually been going down. They were at a highend in 201055. 5 fully favorable and that is now down to 35. 2 . Why . I think the training efforts have a lot to do with that. A better quality decision because we are dealing with every case in front of them and they have to make a decision so the question is the case is coming to you they either made better decisions at a lower level or their something that has happened at the alj level with better training that you are making better decisions and the decisions earlier he were finding feet people fully favorable more often than what would be policy. For the joint adjudication level. That would still mean at some point you have to make fully favorable decisions or partially unfavorable. That would save there was an issue at some point you are doing too many fully favorable. I dont know if i would go so far as to say we fix them but i would say it has improved it and i think as congresswoman speier points out the goal is to have the case paid if it is a validly visible claim to have been paid early in the process as possible and keeping them from reaching the alj level. Mr. Chairman matt ask a question . I just want to touch on this. Is the training coming from you to alj backed up to cms, feedback that is cms and accepting that as a direct out of . Im going to use an example thats happening in the orthotics and prosthetics industry where after an artificial limb is made and delivered to the patient the claim is being denied by audit because the actual words patient is an amputee does not appear in a physicians notes. But the words patient requires audit artificial limb appear and the medicare history includes payment for the surgeon to conduct a limb amputation. And so many of these denials could be eliminated if, and getting a reverse on the alj. Is there feedback going back down to the cms saying just because the exact words do not appear in the surgeons note that the patient is an amputee doesnt mean that you deny these because if you look it says the physician is saying they need a prosthetic and we pay them to a limb. Are you looking at different records . Because you know. Nell no as a general record we review the record and there are some exceptions to that which allows additional representatives at the alj level that we are supposed to be designing things on the same record. What does change significantly is we do have a hearing and so at our level we are able to question the provider supplier, receives some explanation and then make a decision that becomes part of the evidence thats in front of us. My understanding is that the editors are not allowed to consider their professionals notes that those notes are considered part of the physicianss record and may show up under the physicians record so the person who makes the artificial leg, iraq auditors are not allowed to look at his nose. They only look at the physicians notes that when you look at the physicians know to look at it in the entirety which includes the notes. Is there feedback coming to you from cms to allow iraq auditors at the lower level to say you need to look at the processors notes because you are pushing them through the system and its ridiculous when someone is being you know, something as simple as patient is an amputee is missing from the record of a guy who we have paid already to have his leg amputated . We have regular meetings with cms and their appeals grade within cms. I think those happen on a weekly basis, a weekly basis. When we identify a trend, we would bring that up at those meetings or if it was a significant trend i would bring it up. Im not aware of the specific instance that you are describing. Its more than one. We have 100 auditors in this country who have gone out of business waiting to be reimbursed and have gone out of business. I am sure we can get you a lot of those examples. We have been aware of them. I think thats part of the issue. Our judges are adjudicators and so we have to become aware that there is a trend and when we do we have those feedback loops in place and we are able to do that. How do you spot a trend . Do have a system in place at the alj level to find those trends and i think its another. I just want to reiterate the woman from alumni, she is exactly right. This is not just unique to her particular group. We have physicians who literally go through step one and step two that have complete records and it has to go to you before you look inside oh god is a complete record and they waited many months or years to find it. And its crazy stuff ms. Griswold. I have examples i mean after this last hearing we started hearing from all over the country from claims that were denied because the date instead of being at the top is at the bottom or the physician had signed his name in this spot and i know we cant fix stupid but it seems like thats what we have got to do. I mean its a reasonable person would do this and you talk about trends. I dont know how you define trends because you have adjudicators that are adjudicating across the omaha system. So what one adjudicator is seeing is a trend in his or her jurisdiction. It doesnt work so i appreciate the javelin wielding and i yield back. I just have one final thing and that is, as you go to meet with the newly confirmed secretary burwell i was hoping that you would consider having a conversation with her about granting the same kind of relief from iraq audits that would feedback to the hospitals under part a under the part b providers like those in orthotics in prosthetics. I think we need to consider putting it under part b especially since theres a hault to the hearings at this point. Thank you mr. Chairman. Ms. Grissom would you like to jump in . Thank you mr. Chairman and at the risk of quite frankly piling on in the last couple of comments and statements, i have the same concern. I applaud that you have introduced new initiatives so your productivity is better but now we are minimizing as my information says that the average hearing is now two hours and given the complexities we havent talked about the complexities. We have talked about the easy stuff. Im not sure it gets addressed in and while i know given we now have an incredible backlog and we are struggling with that, its time to do more than figure out the steps, how we are across communicating and what the training looks like. We have to do something upfront in the up trend is nobody on this committee and i dare say no one in congress is willing to tolerate waste abuse and fraud. Everyone in the system to do everything we cannot just to minimize it to eradicate it. These are clearly administrative issues and while i do expect providers to be as administratively competent as they can, i cant do with consistency, and im a lawyer, even read a medicare dob. Given the likelihood that you make mistakes simple, the form says that the date at the bottom of the form is updated this year and ive got 200,000 forms from last year. Instead of throwing those away, and no one pays attention to that. The fact is we are doing this under a waste fraud and abuse context and i think thats important but we are closing the businesses who arent going to be paid and theres a lot of small providers. Again i know you have heard all this and we appreciated and i agree with my colleague. I want fairness. Just because you are a big provider i dont think at that Hospital System should have to wait and be penalized in this fashion. But what is critical in a frontier state like mine of new mexico that means an entire Community Aware and one of my districts in Torrance County there arent any providers. There arent any durable medical provider equipment. They are done. There is zero access. We dont even have the right tools or strategies to recreate these practices. So im really interested in the results of understanding now the situation between how they are adjudicated, what your initiatives are, how you were trying to manage these cases. I appreciate the weekly meetings but i would encourage you to go back to the secretary and be really clear on some of these comments and it seems like we are all on the same subcommittee. We have a problem on the front end, so we do want, at least i do want information you are doing on the backend and i want to be careful because its cumbersome that we can win on appeal even though there might be a material problem. But i think the bulk of these cases and the reason you have half a million cases coming on appeal is because they are administrative issues that dont come anywhere close to fraud, waste and abuse. We need to deal with that issue sooner than later. I dont know if theres a comment to make back but my expectation that youll take this urgency back because with all the work we have done to maximize access, this effort is minimizing it to the highest degree. And it has a Chilling Effect on our patient population. I would certainly take that back and if there is a positive bed is coming out of this situation i think it is that the department is viewing this workload more holistically although there are three separate agencies, cms, omaha and the department that deals and department of his Appeals Council that work with the spec was. The department is taking an active role in trying to resolve things and so i will take your concerns that. I certainly share them. I would also say i was very pleased when i came here to omaha to be part of an agency that has for the most part met its 90day timeframe. As an administrator myself i find the delay very troubling and unacceptable. You basically have here a workload capacity problem. You may get to that for a moment . We can sit here and complain for hours. Nothing is going to change because the addition of 17 new aljs, talk about the simple math that my good friend mr. Meadows had referenced, there is 500,000 of appeals that will be backlogged by the end of this year. If you divide that by 1220 and i dont know you could do any more than that and frankly i dont know if we would want to do more than that because less than two hours is probably unfair and would be that would suggest that we would need 410 new alj if we wanted to get rid of that backlog. 410 and you have asked for 17 or you have given 17. We are basically saying to the providers out there to up. Excuse my language but thats basically what we are saying to them. We are saying that we are not willing to deal with this backlog in the reality that putting blinders on and well add a few more and cross our fingers and hope that with a few new reforms that you put in place, but its not going to reduce it to the extent that we are not going to be back here next year with the same discussion. So how would you comment to that . While there are several things. One. Am sorry to intrude. Can you bring your mic a little bit closer to you . Sure. Thank you. There are several funding issues here and in my mind one of the primary ones had to do with the Recovery Audit Program and recovery audit legislation. I think when Congress Passed the legislation for the program we envision that program would be funded out of recoveries that the legislation actually provides that the administrative cost of cms will be covered. That does not include the administrative costs or of omaha or the administrative cost to the departmental appeals board. But we have basically had in that regard is a workload that came in on us that was basically unfounded. So i think thats part of the problem and is a part of the problem that i think does have a solution. So if i were queen for a day, that would be one of the simple fixes that i think would be possible. Meaning what . In some ways able to properly fund, to find omaha and i will put in a plug for my Sister Agency the departmental appeals board so the recovery audit appeals that come to last two levels are funded under the administrative costs are funded out of the program and they are at the lower two levels. Is there enough money that is recovered by the rack to pay for all of the levels of the appeals . Yes, i think that there is. This is based on cmss reports on the recoveries that are coming from that program. So that is one part i think of the solution. There are some other things as well. We are doing these two pilots. One involves alternate adjudication models using a settlement facilitation. If that pilot is successful i think we need to look at Something Like that as well. Is that being piloted in a geographical location . Its being piloted at the office of medicare appeals. Theres no geographic location. Its being done with part b i believe, part b claims right now. There is a certain time period where we are offering these facilitated conferences. Give us an example of what that means. Reallife terms. Reallife terms it was put on our web site on june 30 so its a very new program and we are waiting to see how appellants respond to it. But the theory is that an appellate will be able to come and ask for a settlement conference with an attorney who is in omaha. Cms would provide someone with a Settlement Authority who would be able to discuss the claim impossibly resolve them having to stay at the hearing. That is the theory. While that is going on they do not lose their place in the hearing q. So they would still remain there but we are hopeful this would allow us to solve several pending claims. This is a twopart problem. Theyre the pending claims we have and also the receipts that are coming in. This piece of the solution is designed to deal with the pending cases that are already with us. Is that your assumption that the cases in the settlement process back to mr. Meadows mr. Meadows statement is not at the top, its at the bottom. Its right here. Is it your assumption that will be that kind of stuff coming at you or the assumption with the settlement and are these settlements are lesser amount or as a fully paid at a faster processing and full payment . Well i think it depends. Like most settlement conferences its going to be probably a little bit of give and take. That would be my anticipation but if its something, in the course of what really a conference with an attorney point out a simple error, a technical error or Something Like that in these claims then you know it is potential. It is possible that they would be fully paid. We just have to wait and see how that would work. And alternative dispute resolution would be viable to providers in particular if it was a decision that was going to be made swiftly. Yes. And that becomes the appeal. We are trying to find ways. No pun intended. We are trying to find ways in our our work work work load more quickly than we can get them to an alj and we are trying to do that given our current authority. Right now the way the statutory scheme is structured and appeal cannot get out of step three. It cannot leave omaha without an alj. What this would do, there would be this agreedupon settlement. Both parties would sign him to judge with them dismiss the appeals of the agreement becomes the resolution of the claim. So that Charity Davis has a dismissal . Or if its fully favorable . It would probably be a dismissal but right now we are just passing them separately as a settlement resolution. Okay. The other alternative is a global settlement discussion concept, which claimants that have very similar kind of cases would all be invited to come in and participate in a global settlement that they could choose not to i gather. Is that correct . This is an initiative that is one of cmss initiatives and i have to admit that my knowledge on this is limited. Its my understanding that it would be a global settlement. That would happen before . It also contemplates they are looking in claims pending at all levels of possible. We really havent seen it operational yet. No we have not. Its an initiative that is still pending. I know you are communicating back and forth of cms and seamus is part of the issue and they get that thats not you but there is very little conversation. Thats really something they would have rather had with cms and to get this done a long time ago facetoface with some of their and would have been able to get on the phone with the same document try to resolve this. Simple straightforward cases, they just want this resolved. If they are a physical therapist that is trying to take take care of its practice as well as do all the paperwork he needs one more thing to do to chase the stuff down. Just be able to be in the process or to hire outside counsel is well beyond what they want to do based on the resolution. How could a process like what you are experimenting with working with cms so it never gets to you, we are still trying to figure out how to prevent the backlog. I think among cmss initiatives you will see mention of the discussion period particularly with regard to recovery audit and i think that could be helpful in resolving these claims at the lower level. Thats something they are discussing that its not something they do currently . I really cant speak to that. I dont know to what extent they have the discussion period right now. [inaudible] i am informed that the optional right now in the recovery audit case. They can do some discussion as well . I think so but i will have to check on that. I would rather get back or have cms get back to you. Understand. I dont want to push you to answer for them. Again we come down to the issue of a just want resolution. Absolutely. Once the contractors also been laced out that they lose contact with them and now they are fighting with someone else in their fight is for the folks they can get to anymore because its too late. They have made their decision and they have filed it and playing the percentages literally bet they know they will get three or four at least and they get paid a percentage of each of them so its a whole different game for them. But for the provider our issue all along is its fraud and we ought to bus them. If its a good provider it should not be harder. These are the folks we need on our team and the American People need. I fully agree and i think identifying not just medicare but improper payments is an important piece of this puzzle. But what we have done i guess in a zealous efforts to implement congresses and tend in that regard has gotten out of balance. What we need to do is restore that balance at this point between the efforts in the appeal rights. I have spoken with the secretary on these issues and i know she is committed to restoring that balance. You know i had a rack in my district that was creating a great deal of discomfort for one of the hospital providers in the district. It was also a hospital that was under a lot of financial pressure to just keep its doors open. My experience with that particular situation suggests that more than anything else, the provider wants to know whats going to be approved. They could have in fact have been Unbundling Services that would allow for more reimbursement. I dont remember the elements of it. Sometimes the providers are in a bind and are looking for ways to up code or to unbundled services. So we need to be smart about this and not appear to be taking one side or another. Everyone should be treated the same but its so important for there to be some certainty and some finality and some timeliness to these decisions and this backlog, i keep coming back to the backlog, we are not getting anywhere near addressing that even with all these new proposals that havent even been tested really. So i still think whether we hire temporary aljs for it period of one year and in deal with this backlog, otherwise we havent really accomplished much. Just to address that there are very limited authorities for hiring temporary aljs and its statutory and administrative acts. Really there are two ways. You can try to get a long from another agency. Most agencies have their own backlogs. In requesting loughner judges we did not get any, so the other way ways to higher judges who have retired and they are called retired senior alj. Those individuals are also on the list that is maintained by opm. They can be hired for a couple of years and then let go. Beyond that and alj appointment is essentially a life appointment except for removal for good cause after hearing before the. How large is this list of retired aljs . Is probably around 100. Its not a tremendously long list. You know, but we do have that. We have requested it in april because we do think that temporary capacity is a part of the solution to deal with the backlog. Now when you get, when youre talking about projected receipt levels i do think we need to be appropriately staffed for what we anticipate to becoming an. So i dont know if that is helpful but aljs are not probationary when you hire them under the aca. Theres no probationary period. There are no performance reviews and they cant receive awards. Those are kind of the things that make them different from other government employees. If the gentlewoman would yield and want to follow up because they are hitting on precisely the point in why its so incredibly important that you are here today but it really is about what is coming to you and how do we address that. The bigger concern that i have is if you hired your 100 it would still be shy based on my simple math in whats going to happen. Its growing exponentially every day. Every day is 1500 appeals at least a week. Is that correct . It has been as high as 16,000 appeals a week. It has been down slightly at the beginning of this year to 11,000. We are trying to figure out where its going to be. I was told by john before he left that there was a policy change within cms that was initiated and making numerous policy changes that they were policy changes between 2011 and 2012 that dealt with the way that they started to refer to these. Part of a was rack and then he needed a legislative fix. My question to him was if its a policy change what you need a legislative fix . What im concerned about is what changed in 2011 or 2012 to make this number grow that you are getting when we are not seeing payments, improper payments actually go down. We have seen progress in terms of improper payment and yet we have this huge problem on our hands and we are not saving any money. So what changed in 2011 or 2012 and i would go back to the chairman. Will the big thing was the recovery audit of course. We talked about that. That was initially a Pilot Program in 2009. We saw a think it was for states. But that was an act of congress. You indicated it was a policy within their agency. And i dont know. Is probably, i mean there w was, and it was probably around that time period where there was focus on identifying improper payment. That is not tracked. We track the recovery audit but cmss efforts to identify improper payments to his own Program Integrity contractors and the others zone programs who are really looking at and there was also coding initiative and some other things like that. But any time there are efforts at cmss level that results in a denial of a claim then that our level theres going to be an increase. But thats my point. It didnt change the improper payment. They may have done that and it may have been wellintentioned but we are still actually getting the increase if you look at the numbers. We had a hearing yesterday so its fresh in my mind. I want to thank the Ranking Member and a chair for their leadership on this and their graciousness to allow me to be included. And if i could, could i go back to one issue that you raised earlier but i think i am finally grasping but the question may have been. That has to do with our appropriation and how that is handled. Of course as you pointed out the medicare modernization act did contain language which would authorize appropriate funds that would cover an increase in adjudication. Having said that though that appropriations bill has to be approved and it does have to go through our department process. I just wanted to point that out. I would also say with regard to our general appropriations that we do know we have been living in challenging budgetary times and in the past five years, the president s budget has only been approved for us and one to five years. So requested we have gone for, forward with even though they are somewhat modest have really only been approved this year. So we appreciate that. We are trying to do what we can with the money that has been appropriated. That was approved because it was part of the omnibus bill . Why was approved this year . I dont know whether it was part of that bill or what it was part of that i do but i do know we received the president s budget this year. Im sorry. Is there any other Statutory Authority you think you need or could use . Or solutions that you have proposed . I think there are a number of things that are going to becoming through the appropriate legislative process that we are looking at. I think the two that im highlighting from our perspective will provide us with the greatest ability to handle our workload and to expand the way we adjudicate claims at omaha. Theres additional things that are being considered to the departmental work group that i know will be coming up through the proper legislative channels. When will you evaluate the settlement process . Obviously its just starting. Pleasure target date for an initial evaluation . Is it a year, is a sixmonth . Ive been looking at a sixmonth evaluation. And he put us on a calendar reminder and six month to send to this committee as well so we can deal with that as well . We are tracking a number of metrics. We would be happy to include you. Okay, please do. This committee is obviously very interested in that. Mr. Chairman i dont have any further questions. I want to thank you all for being so attentive to our questions and sitting around for an hour and have always been encoded and thank you for your service to our country. Thank you for your justin this issue. Its certainly one thats near and dear to our hearts as well. Its near and dear to allow people in our district that not only want to do with fraud and waste and loss of improper payments which is important to everyone including on this dais including providers that absolutely firmly intensely hate the process. When they go through it and theres a signature in the wrong place or a date in the wrong spot and they just want to get it resolved it takes three years to get it resolved sometimes. It goes from the frustration in getting a nokia solution. That doesnt help any of us soap binding alternative Solutions Like what youre proposing a settlement process that they could go through that process and that they dont like it would which is sounds like to me they dont like the settlement they are still able to be resolved x. . Go. Theres nothing mandatory that the settlement process. At any point they can exit the process. They just want an answer. They are entitled to an answer i realize that. Is to. Thats a keeping so if you are working on that process thank you process thank you in a fairway so are ways that we can help in the process because as mrs. Speier mentioned being bringing on more entries not going to solve this. Theres no way can give 400 more aljs so there has to be another solution to this to determine how we get answers. Part of this is we understand he is on cms and you should not have the number getting to you that is giving to you. So im looking at these percentages and i know we have kicked around numbers that let me mention one number. When i look at percentages ive pull out their amended because those are coming back. Ive pull out dismissed because they are not even getting to you. When i look at that fully favorable and partially favorable for part a i dont read the other numbers. Thats showing 65 either fully or partially favorable resolution for them if they get to you. That tells me the job is not getting done on the cms site. You should not have that high of a percentage of overturns getting to you. Theres something being messed. Part of the issue is we have to press on cms to get some of these things resolved so you dont have a backlog this high. This statistically you shouldnt have a 65 overturn rate. That is not on you but im saying publicly there are issues that we have to get resolved in the days ahead. Thank you and we apologize for the long delay. We are dismissed. [inaudible conversations] i view this as a risk and i decided to take it because whether its an illusion or not, i dont think it is, its helped my concentration. It stopped me from being bored, stopped other people from being boring to some extent. It would keep me awake or allow a longer conversation. If i was asked what i do it again, the answer is probably yes. I would have quit earlier possible late to get get give away the whole thing. Its easy for me to say because to my children is sounds irresponsible. The truth is it would be hypocritical for me to say nau ive never touch the stuff because i did know. Everyone knows. The soviet union and the soviet system in Eastern Europe contained the seeds of its own destruction. Many of the problems we saw at the end begin at the very beginning. I spoke already about the attempts to control all institutions and control all parts of the economy and political and social life. One of the problems is when you do that, when you try to control everything then you create opposition and potential dissidents everywhere. If you tell all artists they have to paint the same line when artists as i do want to think that way i want to paint another way you have just made him into a political dissident. We want to subsidize housing in this country and we want to talk about in the populace agrees that something we should subsidize them put it on the Balance Sheet and make it clear and make it evident and make everybody aware of how much its costing. When you deliver to these thirdparty Enterprises Fannie mae and freddie mac when you deliver the subsidy for a Public Company with private shareholders and executives who can extract a lot of that subsidy for themselves, that is not a very good way of subsidizing homeownership. Next the Supreme Court or argument in the case of town of greece v. Galloway. At issue is the legality of opening Public Meetings with prayer to the justice has heard from both sides for about an hour. For some background on the issues involved. On november 6, 2013 the Supreme Court heard oral argument in the case out of greece galloway. Two residents of that town objected to the town board beginning most of their meetings with predominately christian prayer. Joining us is mike doyle from mcclatchy was their legal correspondent. What are we going to hear the oral argument . And we will hear the conflict between the right of people not to have religion imposed on them by the state versus the desire of the town leaders in greece a city 96,000 to invoke the lord at the start of each of their sessions. So there will be this conflict between legislative prayer which is something that is common to Many Political bodies and the person guaranteed against the establishment of official religions. The two people in the case from greece and new york, one is an atheist and one didnt profess a religion. They objected that most of these meetings began in greece with a christian prayer. Correct . Thats right. Between 1999 into thousands upon the case was brought every single one of the legislative prayers was led by a christian minister and some were quite explicit talking about our lord and savior jesus christ. So the belief of the citizens of galloway and this fellow citizens objected is this is far too emphatic and endorsement of christianity that they would want to open up. Is this a case where one of the justices mentioned the court itself begins the session with a prayer or a moment . Indeed and in fact foreshadowing what would happen in the ventral decision as we will see what happens in the decision that it is the case that Many Political bodies as well as legal bodies does not say this Honorable Court or make god shed his grace upon us. Lets listen to the Supreme Court case out of town of greece v. Galloway. We will hear arguments this morning in case 12. 696 at the time of town of greece v. Galloway. Thank you mr. Chief justice and may it please the court. The court of appeals correctly helped a legislative prayers at issue in this case were not offensive in the way identified as problematic in march but the great thing committed legal error by drafting the endorsement on the new carrier to the practice of legislative prayer. Im wondering what you would think of the following. Suppose as we began the session of the court that chief justice had called a minister to the front of a courtroom facing the lawyers and maybe the parties, maybe the spectators and the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following. He said, we acknowledge the saving sacrifice of jesus christ on the cross. We draw strength from his resurrection. Blessed are you who has raised that the lord jesus, you will appraise us in our turn and put us by his side. The members of the court who stood responded amen, made the sign of the cross and the chief justice thing called your case. Would that be permissible . I dont think so your honor and obviously this case doesnt present that question because what we have here is a case of legislative prayer and doctrine that recognizes the propriety of legislative prayer of this type. Let me make a distinction between the legislature and any other official proceedings. Is that correct . Clearly involve legislative prayer. That tradition that we rely on involve legislative prayer and in this case involves legislative prayer. What role might apply in another context. Suppose i asked the same question, the same kind of statements, the same sort of context except its not in the courtroom. Instead its an a congressional hearing room. Maybe its a confirmation hearing. Maybe its an investigatory hearing of some kind and a person is sitting at a table and some of the members of the committee are ready to testify, ready to give his testimony in support of this nomination and the minister says the exact same thing. Obviously important distinguishing factor there in addition to the tact its not the legislative body as a whole, compelled to attend and testify under oath which is a different situation from the one here. We should assume to make it parallel to what occurred here that the next day before the same committee a [inaudible] would lead the invocation and the day after that an orthodox jew. I mean yes, you it makes a difference whether its just one denomination that is being used as chaplain, or open to various denominations. Thats correct, yourself. Thats why we believe this case is an easier case than marsh in marsh there was paid chaplain for 11 years the prayers sounded almost exclusively like the ones i read. And one year, on four occasions, there was some attempts to vary it up to have a minister or a wicken, but for the most part, not out of any malice or anything, but because this is what the people in this community knew and were familiar with and what most of the ministers were. Most of the prayers sounded like this. Well, no its clearly not correct that most of the prayers sounds like the one you just read. That wouldnt matter because you have your limitationsproselytizing and disparaging, and i think justice kagans question gets at place. Place. Read your previous and say it doesnt matter. It could be an executive body, it could be a town meeting, a school board, a zoning board, utilities board. That is is this case about prayer at the beginning of a legislative session or is it about prayer in all three branches of government . This case is about prayer at the beginning of a legislative session. Thats exactly what the meetings at issue here are about. Thats what the town of greece is respondents try to argue this is what the call coercive because theyre public hearings but the public hearings are held 30 minutes after the prayer and anybody coming for the public hearing can show up after the prayer. Why was it that you so promptly answered justice kagans question to the effect that this would be a violation. What would there be a violation in the instance she put . Im sorry, which question. The hypothetical about the prayer in this court. You seem readily to agree that would be a First Amendment violation. Why . Well, perhaps i conceded too much. The important distinction is between both the judicial context and the legislative context on the one hand and the absence of a comparable history is it simply history that makes theres no rational explanation, just an historical aberration . Well, its not a question of historical aberration. Whats the justification for the stinks . A question of what the establishment clause is understood, at the time and throughout history to forbid and not forbid. The judiciary is different than the legislature. Legislature can be part of it, the judiciary should not be you had no problem at the announcement at the beginning of this session, god save the United States and this Honorable Court. There are many people who dont believe in god. Thats correct, your honor. So thats okay. Yes. Why is that okay if perhaps i misunderstood. The hypothetical is as you described with a different minister with an open process, and nondiscriminatory process like the one here. It would be a much closer case than this one but might be constitutional. Whether that case is constitutional or not, this case is far from constitutional line, further from he line than the state legislateyears practice in the marsh. They had one denomination for 16 years and that was constitutional and his prayers were not distinguishable in content from the prayers at issue here. Whoa it make still think change your analysis if instead there was a point of saying, all rise, something of that sort. It would make a difference if the hypothetical jet kagan posed were the same, except people werent told to rise or invited to rise or in fact maybe were told to stay seated, Something Like that so there would be no indication of who was participating in the prayer . Is that a ground of distinction that youre willing to accept or not . I dont think that is constitutionally significant unless might be different if people are compelled to stan, but whether they are or not, in the marsh case itself, senator chambers testified the practice in the Nebraska Legislature was for people to stand, and he felt coerced to stand because when he was there, he tried to avoid he felt he needed to stand because everybody else was and needed to have dealings with people. The court held he is an adult and is expected to be able to disagree with things he disagrees with, and that is not a constitutional violation. I wonder how far you can carry your historical argument and whether some of these things are properly regarded as more historical artifacts. Our motto is in god we trust. Right . Thats the motto. Its been that for a long time. Right . But wouldnt we look at it differently if there were a proposal today for the first time to say, lets adopt a motto in god we trust . Would we view that the same way the history doesnt make it clear that a particular practice is okay going on in the future. It means this is what theyve done so were not going to go back and revisit it. Its like were not going back to take the cross out of every city field thats been there since 1800. But it doesnt mean that it would be okay to adopt a seal today that would have a cross in it, does it . Not necessarily. But i think hoyt is clearly important to the establishment clause analysis under this courts precedence in two significant respects, both which apry here, the first being that history shows us the practice of legislative prayer has not led to an establishment and we can be confident it is not in danger of doing. So secondly, the history of legislative prayer, unlike your help the cal, goes hip the cal, goes back to the framing of the constitution. The very time the first congressman was writing and sending the First Amendment out to at the states to be ratified the adopted the practice of having a congressional chaplain, and the record is clear, prayers were almost exclusively sectarian as respondents define that word. I dont really understand your answer. How can it be that if the practice existed in the past, it was constitutional was constitutional in the past . Ey. Why unconstitutional if the same thing is done today . Even without any past parallel practice. Is past parallel practice essential . I think this courts precedents have also indicated, at least in some cases, if a practice is constitutional, as we know it to be the case, because of the fact that it has been understood to be constitutional and consistent with our religion clauses from the founding, other practices that have no greater impact no greater tendency to establish religion are equally constitutional is there any constitutional or historical practice with respect to this body . Its not simply a legislator. It has a number of administrative functions. Sometimes it conveniences as convenes as a town meet, sometimes it entertain zoning applications. Is there a history for that kind of as there is for the kind of legislature we had in nebraska . Yes, your honor. The beckett amicus brief identifies examples of municipal government prayer over the course of our founding, which is over the course of our history, which is not surprising given the legislative practice at the state and federal level. And secondly, congress, for much of our hoyt, entertained private bills, ethe with lent in terms of legislative or nontruly legislative functions youre talking bit, with the