429 Mass. 241 | Mass. | 1999
Two elderly patients insured by the Federal
In more technical terms, this case concerns a dispute between the division and a physician-provider
I
Because this case concerns the interplay between two
Medicaid, Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq., also enacted first in 1965, provides necessary medical assistance for certain low-income individuals, based on financial need.
The Federal government reimburses Massachusetts for some, but by no means all, of the costs of participating in Medicaid. See 42 U.S.C. §§ 1396a, 1396b, 1396d(b). States must establish a schedule of reimbursement rates for Medicaid covered services. See 42 U.S.C. § 1396a(a)(13). Because the State Medicaid reimbursement rates generally are lower than the Federal Medicare rates, service providers who participate in the Medicaid program generally receive less than the “reasonable charge” determined by the Secretary for the same service covered under Medicare. See Rehabilitation Ass’n of Va., Inc. v. Kozlowski, 42 F.3d 1444, 1447 (4th Cir. 1994), cert. denied, 516 U.S. 811 (1995). The Medicaid rate frequently is even less than the eighty per cent of the “reasonable charge” paid to providers by the Federal government under Medicare. Id.
The Medicare and Medicaid statutes overlap for coverage of the population of elderly or disabled persons (eligible for Medicare) who are also poor (eligible for Medicaid). Referred to as QMBs, they are individuals who qualify for Medicare but who cannot afford to pay for the optional Medicare Part B premiums, deductibles, and copayments.
Because QMBs are poor and unable to pay for Part B coverage, those for whom the Medicare safety net is most needed are at risk of being excluded from the full range of Medicare protection. From the beginning of Medicare and Medicaid, at least as to dual eligibles, Congress has attempted to address this conundrum. In the intervening thirty-four years, Congress has
II
Briggs, a physician who practices in Nantucket, provided medical services to Medicare Part B eligible patients, including QMBs.
In 1988, Congress amended the Medicaid Act to require participating States to enroll all QMBs in Medicare Part B by paying the insurance premiums, deductibles, and twenty per cent copayments with Medicaid funds, or risk losing Federal matching funds.
“In the case of medical assistance furnished under this subchapter for medicare cost-sharing respecting the furnishing of a service or item to a [QMB], the State plan may provide payment in an amount with respect to the service or item that results in the sum of such payment amount . . . exceeding the amount that is otherwise payable under the State plan for the item or service for eligible individuals who are not [QMBs]” (emphasis added).
42 U.S.C. § 1396a(n). The division took the position (as did the Secretary)
In the wake of that policy change Briggs filed this action. Relying primarily on the mandatory (“must”) language of § 1396a(a)(10)(E)(i) of the Medicaid Act, he sought reimbursement for the full amount of the Medicare “reasonable charge” for all medical services delivered to QMBs between 1988 and 1996. Before his claims could be adjudicated, Congress revisited the area and, in August, 1997, enacted the BBA that “clarified” that a State is not required to reimburse QMB providers at the Medicare rate, but may utilize the lower Medicaid rate. 42 U.S.C. § 1396a(n)(2), inserted by Pub. L. 105-33, § 4714, 111 Stat. 509-510.
Briggs filed his amended complaint in July, 1997, and as such his lawsuit was “pending as of . . . the date of the enact- ■ ment” of § 4714. His claims are, accordingly, subject to the 1997 amendment. He contends that, prior to 1997, the law governing Part B reimbursements for QMBs required the division to reimburse providers at the Medicare rate. Far from being a “clarification,” he continues, § 4714 is a substantial amendment to this settled law, and its retroactive application gives rise to serious constitutional problems. The division counters that, before 1997, the relevant statutory provisions did not reflect Congress’s clear intention regarding QMB reimbursement, and § 4714 is, as it was labeled by Congress, only a “clarification” of the law.
m
We consider first Briggs’s argument that before 1997, the Medicaid Act unambiguously required the division to reimburse him at the Medicare “reasonable charge” rate for all medical services he provided to QMBs. Briggs relies primarily on the decisions of four United States Courts of Appeals to that effect. See Rehabilitation Ass’n of Va., Inc. v. Kozlowski, 42 F.3d 1444 (4th Cir. 1994); Haynes Ambulance Serv. Inc. v. State, 36 F.3d 1074 (11th Cir. 1994); Pennsylvania Medical Soc’y v. Snider, 29 F.3d 898 (3d Cir. 1994); New York City Health & Hosps. Corp. v. Perales, 954 F.2d 854 (2d Cir. 1992). The focus in each case was an interpretation of the 1986 provision of the Medicaid Act, § 1396a(n), that the State Medicaid plan ‘may’ provide payment to providers for services to QMBs in an amount exceeding the Medicaid rate. In each case, the Secretary
Each court concluded that the disputed provisions unambiguously precluded the States from capping QMB copayment reimbursements at the lower State Medicaid plan rates. But the opinions make abundantly clear that the statutory provisions in question are susceptible to differing, and arguably plausible, interpretations. The United States Court of Appeals for the Second Circuit, the first to consider the question, reasoned that the “may” language of § 1396a(n) “clarified]” that “the Medicaid Act does not prohibit a provider from accepting more than the Medicaid rate” (emphasis added). New York City Health & Hosps. Corp. v. Perales, supra at 859. In contrast, the United States Court of Appeals for the Third Circuit, the next to consider the issue, concluded that § 1396a(n) “authorizes the states to deviate” from their State plans with respect to QMB Part B cost-sharing payments, “thus carving out an exception to the general requirement to comply with the Medicaid fee schedules or payment methods” (emphasis added). Pennsylvania Medical Soc’y v. Snider, supra at 895. The Snider court expressly rejected the Secretary’s interpretation of § 1396a(n), and ruled that the provision did not create an option for States to reimburse at either the Medicare or Medicaid rate. “Unable to improve upon [that] analysis . . . ” the United States Court of Appeals for the Eleventh Circuit adopted the same reasoning. Haynes Ambulance Serv., Inc. v. State, supra at 1076. Finally, in Kozlowski the court concluded that § 1396a(n) permitted States to pay more for a “pure” QMB than for a “dual eligible”
If confusion concerning the meaning of § 1396a(n) was not already apparent, there were dissenting views expressed in Perales and Kozlowski, as well as by several Federal District Court judges who later considered the same issue. See, e.g., New York City Health & Hosps. Corp. v. Perales, supra at 863 (Cardamone, J., dissenting); Rehabilitation Ass’n of Va., Inc. v. Kozlowski, supra at 1462 (Niemeyer, J., concurring in part and dissenting in part); Dameron Physicians Medical Group, Inc. v. Shalala, 961 F. Supp. 1326 (N.D. Cal. 1997); Kulkarni vs. Leean, U.S. Dist. Ct. No. 96-C-884-S (W.D. Wis. 1997). Those judges agreed with the Secretary that the statutory scheme was indeed ambiguous, and did not clearly express what Congress had intended concerning the rate of QMB cost-sharing reimbursement. Circuit Judge Cardamone concluded that, because “[t]he majority’s interpretation of these Acts simply does not lay out a ‘clear’ plan of Congress contrary to the Secretary’s construction of the same statutes,” deference to the Secretary’s reasonable interpretation was warranted (emphasis in original). New York City Health & Hosps. Corp. v. Perales, supra at 864, 867 (Cardamone, J., dissenting). Circuit Judge Niemeyer, writing separately in the Kozlowski case, concluded that Congress had not spoken directly to the issue of the reimbursement rate for providers of medical services to QMBs, and that deference to the Secretary’s interpretation was appropriate, noting that “the fact that well-intentioned and intelligent experts at legal exegesis have arrived at three or four seemingly plausible readings of a particular text may be the best evidence that this interpretive puzzle has no definitive answer.”
We need not conclude for ourselves which of the many plausible interpretations of § 1396a(n) represents the most probable intent of Congress. Our own review of the statutory provisions at issue, their accompanying legislative histories, and the numerous judicial interpretations of the statute before and after the 1997 “clarification” of the BBA, confirms for us that prior to 1997, Congress was not clear in its intentions regarding the reimbursement rate for providers of Part B medical services to QMBs prior to the 1997 enactment of the BBA. We are not alone in reaching that view. See, e.g., Paramount Health Sys., Inc. v. Wright, 138 F.3d 706 (7th Cir.), cert. denied, 119 S. Ct. 335 (1998); Beverly Community Hosp. Ass’n v. Belshe, 132 F.3d 1259 (9th Cir. 1997), cert. denied, 119 S. Ct. 334 (1998). Dameron Physicians Medical Group, Inc. v. Shalala, supra; Kulkarni vs. Leean, supra. We agree with the United States Court of Appeals for the Seventh Circuit that “[t]he Act is a hopeless muddle so far as [QMB] reimbursement is concerned,” Paramount Health Sys., Inc. v. Wright, supra at 711. We certainly have little difficulty in rejecting Briggs’s claim that between 1988 and 1996 Federal law unambiguously mandated the division to reimburse providers for Medicare Part B services provided to QMBs at the Medicare rate.
Because we conclude that, before 1997, Congress had not
“The bill would require States to pay Medicare cost-sharing, including coinsurance, on behalf of eligible individuals. It is the understanding of the Committee that, with respect to dual Medicaid-Medicare eligibles, some States pay the coinsurance even if the amount that Medicare pays for the service is higher than the State Medicaid payment rate, while others do not. Under the Committee bill, States would not be required to pay the Medicare coinsurance in the case of a bill where the amount reimbursed by Medicare — i.e., 80 percent of the reasonable charge — exceeds the amount Medicaid would pay for the same item or service. However, if a State chooses to pay some or all of the coinsurance in this circumstance, Federal matching funds would, as under current law, be available for this cost.” (Emphasis added.)
H.R. Rep. No. 105(11), 100th Cong., 2d Sess., 61, reprinted in 1988 U.S.C.C.A.N. 857, 884.
Finally, we consider Briggs’s constitutional challenge to the retroactive application of § 4714 of the BBA, “clarifying” (as Congress captioned the legislation) that States are not required to reimburse providers for medical services to QMBs at Medicare rates. As a clarification of the law, § 4714 may be applied retroactively without constitutional concern. If, on the other hand, § 4714 amends the prior law, any retroactive application opens a Pandora’s box of constitutional issues.
Resolution of the question turns, in part, on the weight we accord to the expression of earlier congressional intent in later-enacted legislation. In Loving v. United States, 517 U.S. 748, 770 (1996), the Supreme Court observed that “[subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.” Id., quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980). It was essentially on that basis that the United States Court of Appeals for the Ninth and Seventh Circuits concluded that the 1997 legislation could be applied retroactively to providers such as Briggs.' See Paramount Health Sys., Inc., supra at 711; Beverly Community Hosp. Ass’n v. Belshe, supra at 1265-1266.
Section 4714 is consistent with Congress’s over-all legislative reimbursement scheme — long in place — that differentiates between Federal Medicare reimbursement for medical services to the elderly and disabled on the one hand, and State Medicaid payments for medical services to the financially needy on the other. Medicaid is an insurer of last resort. In mandating that States pay for Medicare Part B cost-sharing for all QMBs, some of whom do not even qualify for Medicaid, the Secretary was surely not unreasonable in interpreting the law to allow States to limit the costs they were now required to incur where the statutes did not precisely express otherwise. In our view, HCFA interpreted the statutes in a way that is, and presumably was thought by Congress to be, consistent with the statutory scheme. See notes 13 and 15, supra. Nevertheless, the decisions of not one, but four Courts of Appeals threw a “wrench in the works,” interpreting the statutes to require reimbursement at the higher Medicare rate. Congress then “clarified” the law. In these circumstances it is appropriate for us to respect the congressional expression concerning the earlier enacted statutory amendments. See Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (when precise intent of enacting Congress is obscure, view of subsequent Congress entitled to significant weight). To do otherwise is to suggest that Congress must remain mute while courts do battle with an agency to which Congress has delegated interpretative action, even where Congress has acquiesced in the agency’s interpretation.
The 1997 Conference Report made clear that this is what motivated Congress to act in 1997. It expressed its view that, under then current law, States were permitted to limit reimbursement of cost-sharing charges to the Medicaid rate and acknowledged that this had long been the States’ practice:
“The amount of required payment has been the subject of some controversy. State Medicaid programs frequently have lower payment rates for services than the rates that would be paid under Medicare. Program guidelines permit states to pay either (1) the full Medicare deductible and coinsurance amounts or (2) cost-sharing charges only to*257 the extent that the Medicare provider has not received the full Medicaid rate for an item or service.”
H.R. Rep. 217, 105th Cong., 1st Sess., at 870, reprinted in 1997 U.S.C.C.A.N. 491. It acknowledged that “[s]ome courts have forced state Medicaid programs to reimburse Medicare providers to the full Medicare allowable rates for services provided to QMBs and dually eligible individuals,” and went on to explain that the 1997 amendment:
“[cjlarifi.es that state Medicaid programs may limit Medicare cost-sharing to amounts that, with the medicare payment, do not exceed what the state’s Medicaid program would have paid for such service to a recipient who is not a QMB. [It] [specifies that the Medicare payment plus the state’s Medicaid payment will be considered payment in full and the QMB will not be liable for payment to a provider or managed care entity. . . ” (emphasis added).
Id. at 870-871, reprinted in 1997 U.S.C.C.A.N. 491-492. Because the 1997 “clarification” was just that, and did not amend settled law, we see no constitutional impediment to the retroactive application of § 4714 to Briggs’s pending claims. See Paramount Health Sys., Inc. v. Wright, supra at 711; Beverly Community Hosp. Ass’n v. Belshe, supra at 1265-1266; McCreary v. Offner, 1 F. Supp. 2d 32, 37 (D.D.C. 1998).
V
The division’s policies and regulations, capping reimbursements for Part B services provided to QMBs at the Commonwealth’s Medicaid State plan rates between 1988 and January 31, 1996, were consistent with the Medicare and Medicaid Acts. The division’s refusal to reimburse Briggs more than the applicable rates of the Commonwealth’s Medicaid plan did not constitute a breach of either the division’s Medicare contract with the Federal government, or its Medicaid contract with Briggs. Section 4714 may be applied retroactively without depriving Briggs of any constitutional or contractual rights.
Judgment affirmed.
The plaintiff filed a class action, pursuant to Mass. R. Civ. P. 23 (a), (b), 365 Mass. 767 (1974), on behalf of “[a] 11 persons and entities who have furnished services or items covered by Medicare Part B, to Massachusetts [qualified medicare beneficiaries], prior to February 1, 1996.” He claims that there are more than 20,000 members of the proposed class. There has been no ruling on class certification.
Addressing a question similar to the one we consider here, the United States Court of Appeals for the Fourth Circuit observed: “[T]he statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.” Rehabilitation Ass’n of Va., Inc. v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994), cert. denied, 516 U.S. 811 (1995).
Part A of the Medicare program is not at issue in this case.
The “reasonable charge” for each medical service is determined by the Secretary of the United States Department of Health and Human Services (Secretary or HHS).
“The term ‘medical assistance’ means payment of part or all of the cost of . . . care and services” for eligible individuals “whose income and resources are insufficient to meet all of such cost” of various listed services. 42 U.S.C. § 1396d(a).
In contrast, the Federal government does not administer the Medicare program through the States.
The income criteria for QMB eligibility is based on varying percentages, up to and including one hundred per cent, of the Federal “official poverty line.” 42 U.S.C. § 1396d(p)(2).
See Rehabilitation Ass’n of Va., Inc. v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994); Pennsylvania Medical Soc’y v. Snider, 29 F.3d 886, 889 (3d Cir. 1994).
Because payments for QMB cost-sharing are made by State Medicaid plans, States are eligible for Federal reimbursement for a portion of those payments. 42 U.S.C. §§ 1396a(a)(10)(E)(i), 1396b, 1396d(b).
For the purposes of evaluating the granting of a motion to dismiss, “ ‘we accept as true all of the allegations of the complaint and all reasonable inferences which may be drawn from the complaint and which are favorable to the party whose claims have been dismissed. . . . Further, a motion to dismiss a complaint . . . should not be allowed unless it appears certain that the complaining party is not entitled to relief under any state of facts which could be proved in support of the claim’ (citations omitted).” Harvard Law Sch. Coalition for Civ. Rights v. President & Fellows of Harvard College, 413 Mass. 66, 68 (1992), quoting Rae v. Air-Speed, Inc., 386 Mass. 187, 191 (1982).
The division suggested an example: “suppose plaintiff rendered a service to a QMB for which the Medicare Part B reasonable charge is $100, but the maximum allowable charge under the Commonwealth’s Medicaid state plan is $90. Plaintiff would submit a bill to Medicare (which is not administered by the Commonwealth) and receive a payment of $80 (the reasonable charge less
The 1988 legislation was the culmination of numerous attempts by Congress to ensure the availability of Medicare Part B coverage for impoverished persons. At the inception of Medicaid in 1965, States were required to pay the full deductibles for Part A. With respect to Part B, states could pay none (according to HCFA), some, or all (according to the providers) of Part B cost-sharing of eligible individuals over the age of 65. Social Security Amendments of 1965, Pub. L. 89-97, Title I, Part 2, § 121(a), 70 Stat. 286, 1965 U.S.C.C.A.Ñ. 305, 370-373 (codified prior to repeal at 42 U.S.C. § 1396a[a][15]). See Rehabilitation Ass’n of Va., Inc. v. Kozlowski, supra at 1451. Beginning in 1967, Congress effectively made the program for “dual eligibles” mandatory by denying Federal matching Medicaid funds to States for costs that could have been avoided if the individual had been enrolled in Medicare Part B coverage. Social Security Amendments of 1967, Pub. L. 90-248, Title II, Part 2, § 222(c), 81 Stat. 821, 901, codified, as amended, 42 U.S.C. § 1396b(b)(1). To obtain the Federal matching funds, States were required to pay both the premium and, of greater significance, the Part B cost-sharing for “dual eligibles.” In 1986, Congress extended the program to permit, but not require, States to pay the Part B cost-sharing for “pure” QMBs. Omnibus Budget Reconciliation Act of 1986, Pub. L. 99-509, Title IX, Subtitle E, Part 1, § 9403, 100 Stat. 1874, 2053-2054. Finally, in 1988, Congress extended mandatory coverage of Part B cost-sharing to “pure” QMBs. Medicare Catastrophic Coverage Act of 1988, Pub. L. 100-360, Title III, § 301(a)(1), 102 Stat. 683, 748, codified at 42 U.S.C. § 1396a(a)(10)(E)(i). Later in 1988, Congress redefined the term “qualified medicare beneficiary”
Title 42 U.S.C. § 1396d(p)(3) defines “medicare cost-sharing” and identifies the allowable costs incurred with respect to a QMB, without regard to whether the costs incurred were for items and services for which medical assistance is otherwise available under the State Medicaid plan.
Following the 1967 legislation effectively making Part B coverage for “dual eligibles” mandatory, the Secretary took the position that States could “cap” reimbursement at the State plan Medicaid rate, and were not required to pay the full Medicare cost-sharing rates for any QMB. See, e.g., Department of Health & Human Services Memorandum (FTP-3) (Sept. 28, 1981).
“450.317: Third-Party Liability: Limitation on Claims for Recipients with Health Insurance
“(A) . . . The [Division] will pay only the amount, if any, by which the maximum allowable amount payable by the [Division] under the applicable rate or fee schedule exceeds the total amount payable by the health insurer or insurers. ...
“450.318: Third-Party Liability: Special Rules for Medicare
*248 “. . . In order to secure payment by the [Division], of any coinsurance and deductible amounts to equal a total payment to the provider not in excess of the [Division]’s maximum allowable amount, the provider must follow the [Division]’s billing instructions . . . .”
The new policy was described in All Provider Bulletin 94 (Feb. 1996), entitled Reimbursement for the Medicare Part B Coinsurance and Deductible:
“Effective for dates of service on or after February 1, 1996, the Division’s reimbursement policy has changed both for recipients who have Medicare coverage in addition to Medical Assistance and for qualified Medicare beneficiaries who have Medicare only. Medicare Part B crossover claims will be reimbursed with full coinsurance and deductible payment.”
Section 4714(a) of the BBA, entitled “Clarification Regarding State Liability for Medicare Cost Sharing,” amended § 1396a(n) of the Medicaid Act by adding the following paragraph:
“(2) In carrying out paragraph (1), a State is not required to provide any payment for any expenses incurred relating to payment for deductibles, coinsurance, or copayments for medicare cost-sharing to the extent that payment under . . . [Medicare] for the service would exceed the payment amount that otherwise would be made under the State plan under this title for such service if provided to an eligible recipient other than a medicare beneficiary.”
The division also claims that Briggs’s contractual and constitutional claims should be dismissed because he has not exhausted the administrative remedies available to him to appeal the denial of his claims to the division’s claims review board. Resolution of Briggs’s claims concern, at a minimum, the construction of several Federal statutes. The “duty of statutory interpretation is for the courts,” not for an administrative agency. Casey v. Massachusetts Elec. Co., 392 Mass. 876, 879 (1984), quoting Cleary v. Cardullo’s Inc., 347 Mass. 337, 334 (1964).
The division interpreted § 1396a(n) in the same way and, as described above (see note 16, supra, and accompanying text), denied payment for claims in excess of the maximum allowed in the Commonwealth’s Medicaid plan, and promulgated a regulation to that effect.
The requirement that a State must share the costs with Medicare or risk forfeiture of Federal reimbursement does not, of course, establish how much of the cost of Medicare the State must share.
The United States Court of Appeals for the Ninth Circuit later noted: “Section 1396a(n) [enacted in 1986] is a superb example of the baffling nature of the statute. It has shown itself to be particularly resistant to a single simple interpretation, and hence particularly in need of clarification.” Beverly Community Hosp. Ass’n v. Belshe, 132 F.3d 1259, 1266 (9th Cir. 1997), cert. denied, 119 S. Ct. 334 (1998).
See Dameron Physicians Medical Group, Inc. v. Shalala, 961 F. Supp. 1326, 1330 (N.D. Cal. 1997) (court could not “conclude that the statutory
“The majority and dissenting opinions in these circuit court decisions have extensively considered both text of the Medicare and Medicaid Acts as well as the legislative history. Although there is no reason to repeat the arguments in depth, careful consideration of these decisions leads to only one conclusion: the provision of the Medicare and Medicaid Acts in question are susceptible to several conflicting reasonable interpretations. That is, they are ambiguous.”
Briggs alleges that the division capped its reimbursement for Medicare Part B services provided to QMBs beginning in 1988. The Commonwealth does not counter this allegation, but the division’s regulations suggest otherwise. In June, 1984, the division first promulgated regulations to limit provider reimbursements to the Medicaid rate for recipients who were also covered by Medicare. Medical Assistance Program Transmittal Letter ALL-9, June, 1984, effective July 1, 1984. This letter states, however, that “enforce
“Effective January 1, 1991, the [division] will allow payment of Medicare Part B coinsurance and deductible only when the following conditions are met: the service for which reimbursement is requested is a Medicaid-covered service, and the combined Medicare and Medicaid payment will not exceed the Medicaid maximum allowable amount; or the patient is a [QMB] . . . and the combined Medicare and Medicaid payment will not exceed the maximum amount allowable by Medicaid.
“All providers were informed of this change in June 1984 by Transmittal Letter ALL-9. However, at that time, the change applied only to Medicare Part A claims submitted by acute inpatient hospitals. As was originally intended, this change will now apply to all Medicare claims processed on or after January 1, 1991, regardless of the date of service.” (Emphasis added.)
Because we determine that the division was authorized to cap its reimbursements for Part B services provided to QMBs at the Commonwealth’s Medicaid plan rate, it is not necessary for us to clarify this confusion.
The division changed its policy to provide for reimbursement at the full
The United States Court of Appeals for the Fourth Circuit gave no weight to the 1988 legislative history, concluding that it was subsequent history entitled to no consideration, and noting that the legislation created “minor amendments to the statute.” Rehabilitation Ass’n of Va., Inc. v. Kozlowski, 42 F.3d 1444, 1455-1457 (4th Cir. 1994). We are not so dismissive of this earlier legislative history. Although the 1988 amendment to the QMB legislation effected a small textual change to § 1396a(a)(10)(E) by striking out the words “at the option of a State,” it placed a new, substantive burden on the States by requiring them to provide Part B coverage for “pure” QMBs, individuals who
The Paramount court has questioned continued reliance on the continuing vitality of Loving v. United States, 517 U.S. 748 (1996), in light of South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998), and Rainwater v. United States, 356 U.S. 590 (1958), noting that despite Loving’s mandate that subsequent legislation be afforded “great weight,” the Court in Yankton and Rainwater had actually given subsequent legislation very little weight. Paramount Health Sys., Inc. v. Wright, supra at 711. The court nevertheless concluded that it was “constrained by Loving to give some weight to Congress’s declaration in the [BBA] that providers of services to [QMBs] are not entitled to reimbursement at full Medicare rates” (emphasis in original). Id. In contrast, the United States Court of Appeals for the Ninth Circuit stated that, it “has been established law since nearly the beginning of the republic . . . that congressional legislation that thus expresses the intent of an earlier statute must be accorded great weight (see most recently Loving v. United States, [supra]),” and gave full effect to the 1997 “clarification.” Beverly Community Hosp. Ass’n v. Belshe, supra at 1265.