*1 NORTHEAST HOSPITAL
CORPORATION,
Appellee Secretary, SEBELIUS, United
Kathleen Department of Health and
States Services, Appellant.
Human
No. 10-5163. Appeals, States Court
United
District of Columbia Circuit. Feb. 2011.
Argued Sept. 2011.
Decided *2 unambiguously foreclose the Sec-
does retary’s interpretation. We nonetheless the alternative affirm the district court on Secretary ground that the must be held guided ap- her proach to reimbursement calculations dur- 1999-2002, ing years interpreta- fiscal an tion that differs from the view she now previous approach, advances. Under her prevailed would have on its Marcus, Attorney, Stephanie R. U.S. larger claim for a reimbursement. Justice, argued the cause Department appellant. the briefs were Ronald for On I Jr., Attorney, Anthony J.
C. Machen U.S. Director, Steinmeyer, Assistant and Jeffri- A Lee, Attorney. ca Jenkins program The federal Medicare reim Christopher Keough argued L. the cause providers medical for services burses him on the brief were appellee. With eligible patients. generally See supply Harold Richards and John M. Faust. J. seq. 42 U.S.C. 1395 et The Medicare John R. Jacob was on the brief for ami- “Parts,” statute is divided into five four of HCA, Inc., in support appel- cus curiae Part A which are relevant here. covers lee. by hospitals medical services furnished providers. and other institutional care GARLAND, GRIFFITH, Before: Secretary §§ id. 1395c 1395i-5. The KAVANAUGH, Judges. Circuit payments directly makes under Part services,” by Opinion “providers hospitals, for the Court filed Circuit such as Judge managed organizations, GRIFFITH. rather than to organizations as health such maintenance Opinion concurring judgment filed (HMOs). 1395x(u). 1395f(a)-(b), §§ See id. by Judge Circuit KAVANAUGH. optional supplemental Part B is an insur GRIFFITH, program pays ance for medical items Judge: Circuit A, by Part and services covered includ In a appeal, 2008 administrative the Sec- services, ing outpatient physician clinical retary of Human Health and Services tests, laboratory and durable medical beneficiary ruled that a Medicare equipment. 1395j §§ See id. 1395w-4. qualifies Medicare Part C still as a by mayA Anyone purchase covered person “entitled to benefits” under Medi- monthly Part B paying insurance result, Beverly Hospital care Part A. As a premium. 1395j, §§ See id. 1395o. Massachusetts, Beverly, received a governs smaller reimbursement from the + “Medicare (M C) provided program, gives services to low-income Choice” during years an beneficiaries fiscal Medicare beneficiaries alternative to granted sys- 1999-2002. The court the traditional Part A fee-for-serviee district summary §§ judgment Beverly on the tem. See id. 1395w-21 to 1395w-29. C, ground may an Under individual enroll HMO, plain language preferred provider organi- violates the with an the Medicare zation, “managed statute. private We conclude the statute or other care” fraction.” The Medi- plan, and the “Medicaid in an M C If a enrolls plan. care fraction is: makes (in the ab- the amounts which “instead of (expressed percent- fraction as a [T]he *3 contract) other- would of num- age), [M+C] sence the numerator which the provider] days the payable hospital’s patient [to ber of such for wise 1395w-21(i)(l), B,” § period up pa- A and id. such which were made of [P]arts (for days) payment with tients who such were entitled negotiates in turn A ... to benefits under [Medicare] M + C enrollees provider. Because supplementary were entitled to se- id. coverage, Part B see purchase must curity income and the 1395w-21(a)(3)(A), [SSI] to be they tend § which is the number of than who receive wealthier individuals denominator hospital’s patient days for such fis- such D, not rele- Part A. Part which is year up patients were made cal case, prescription a to this vant provides (for days) who such were entitled to §§ 1395w- program. See id. drug benefit benefits under Part A.... [Medicare] to 1395w-152. 1395ww(d)(5)(F)(vi)(I). § Id. The Medic- “Miscellaneous Part E sets out various aid fraction is: Provisions,” Prospec- which is the one of a (expressed percent- fraction [T]he (PPS) Payment System for reimburs- tive age), the numerator of which is the num- inpatient hospital Part A services. See ing hospital’s patient days ber of the 1395ww(d). PPS, § Medi- id. Under period patients such which consist of hospital a for services care reimburses (for days) such were nation- prospectively determined based under a medical assistance State [Medic- on the regional al and rates rather than plan ... but who were not entitled aid] spends. See id. hospital actual amount the A ... to benefits under [Medicare] 1395ww(d)(l)-(4). pro- also § The PPS and the denominator which is adjustments based on payment vides for hospital’s patient total number of the such hospital-specific factors. One various period. for such share adjustment “disproportionate is the 1395ww(d)(5)(F)(vi)(II). a Here is Id. (DSH) adjustment, under which hospital” representation of the two fractions: visual pro- more for services Secretary pays signifi- by hospitals “serve[ ] vided of low-in-
cantly disproportionate number Id. patients.”
come 1395ww(d)(5)(F)(i)(I). a Medi- hospital qualifies
Whether the amount of adjustment,
care DSH receives, adjustment hospital de- hospital’s “disproportionate
pends on
Id.
percentage.”
intermediary,” typically
pri-
A “fiscal
1395ww(d)(5)(F)(v)-(vii).
percent-
This
company acting as the Sec-
vate insurance
adjust-
measure” for the number
calculates
age
“proxy
retary’s agent,
is a
DSH
serves,
421.1, 421.3,
§§
patients
hospital
low-income
ments. See
C.F.R.
H.R.Rep.
99-241,
(1985),
at 17
If a
is dissatisfied
pt.
No.
421.100-.128.
determination,
fractions,
intermediary’s
the sum of two
with the
represents
may appeal to the Provider Reimburse-
commonly
the “Medicare fraction”
called
(PRRB), an
ment Review Board
adminis-
Northeast filed suit in the district court
body appointed by
Secretary.
challenging
trative
the Secretary’s decision.
In
(h).
(a),
30, 2010,
an opinion
issued on March
1395oo
affirm,
granted summary
district court
may
modify,
judgment
PRRB
or reverse the
for Northeast.1
award;
Hosp. Corp.
Ne.
intermediary’s
Sebeli-
fiscal
us,
(D.D.C.2010).
F.Supp.2d
affirm,
may
modify,
in turn
or reverse the
view,
district court’s
(d)-(f).
plain
under the
lan-
PRRB’s decision. See id.
1395oo
statute,
guage of the
+ patients eligi-
M C
ble for Medicaid must be
counted
*4
B
Medicaid fraction
+
because M C beneficia-
ries
longer
are no
“entitled to benefits
Hospital Corporation
Northeast
owns
they
under Part A” once
elect Part C. Id.
Beverly
operates
Hospital,
and
a Medicare
Counting
at 93.
patients
C
provider in Beverly, Massachusetts. For
Medicaid fraction increases the size of the
years 1999-2002,
fiscal
the fiscal interme-
and,
case,
fraction
in Northeast’s
diary
Beverly’s
excluded
+
M C
amount of the reimbursement to which it is
days from the numerator of the Medicaid
entitled for its care
patients.
of low-income
fraction.
jurisdiction
We have
over the
PRRB,
Northeast appealed
argu-
to the
appeal
under 28 U.S.C.
1291.
ing that M + patients eligible
for Medic-
II
aid should be counted in the numerator of
the Medicaid fraction
because
are not
We review a grant
summary
“entitled to benefits” under Part A. North-
novo,
judgment de
viewing the evidence in
east claimed it was owed an additional
light
most
nonmoving
favorable to the
$737,419in
as a result
party
drawing
all reasonable infer
of the intermediary’s improper calculation.
nonmoving
ences
party’s favor.
Northeast,
The PRRB
against
ruled
hold-
(D.C.Cir.
Gray,
408,
Geleta v.
645 F.3d
ing that
implement-
under the statute and
2011). We review the Secretary’s inter
ing regulations,
+ patient days
M C
should pretation
provision,
of the DSH
42 U.S.C.
not be counted in the Medicaid fraction
1395ww(d)(5)(F)(vi),
under Chevron
because M + C beneficiaries remain “enti- U.S.A. Inc. v. Natural Resources Defense
tled to benefits under Part A” even after Council, Inc.,
837,
467 U.S.
104 S.Ct.
electing Part
Beverly
C.
Hosp. v. BlueC-
(1984).
in either the step one we ask whether At Chevron fraction, but are count- tor of the Medicare foreclosed Congress unambiguously has numerator of the Medicaid ed both the Secretary’s interpretation that M C Medicaid, fraction, and if he is for are “entitled to benefits under enrollees of that fraction. the denominator not, Congress conclude has Part A.” We in the Bal- provisions fraction. because numerous first the Medicare Consider Act of No. 105— Budget in the num- anced Pub.L. M+C Including (the M+C, which enacted fraction Stat. and denominator of the erator C, amendments to Part subsequent frac- well as Secretary’s interpretation) dilutes the in M + C likely person assume that a M+ enrollees are less tion because A, entitled to benefits under than non-M + C remains qualify for SSI benefits text or structure of the qualify nothing This is because to enrollees. compels a different result.2 Part DSH fractions purchase must first person Part C reasoning unnec- district court’s concurring colleague criti- cism of the thinks our 2. Our Secretary argues phrase his for ... inpatient hospital behalf added)). applies Second, “entitled to benefits under Part A” (emphasis services----” statutory 1395w-21(a)(l), to all individuals who meet the which was enacted as 426(a) (b) Act, in 42 part original criteria U.S.C. states that receiving “hospital persons eligible un- insurance benefits Part C are “entitled to 426(a), “[e]very der Part A.” elect to receive “through Under indi- benefits” either original vidual who ... age pro- [Medicare has attained 65” and fee-for-service gram under A monthly “is entitled to and B ... or ... Security [P]arts [Social through enrollment in a Medicare + hospital benefits]” is “entitled to insurance plan Choice under 426(b), (emphasis [Part C]” benefits under Part A.” Under added). Third, § 1395w-21(i)(l), every another age individual under the of 65 who 1997 Act marital, provision, specifies that once a disability, meets certain or other person enrolls in an M + plan, similarly criteria “entitled to to the “shall be instead insurance benefits under Part A.” Accord- (in the amounts which the absence of the ing Secretary, to the M + C enrollees are a contract) +[M C] would otherwise pay- subset of these two groups, because to be able provider] [to the [P]arts eligible for Part C a must first be added). B” (emphasis A, entitled to benefits under Part see 1395w-21(a)(3)(A), enrolling logic Northeast’s straightforward: in Part C age, does not affect one’s marital “there is provided one benefit status, ability Thus, or to work. defini- A,” and that right [P]art benefit is “the *6 tion M + C enrollees must be entitled to payment have made under Ap- A.” [P]art benefits under Part A. pellee’s Br. 21. But individuals who enroll in an plan M+C do not receive benefits
Northeast counters that M + C enrollees A; rather, under Part they receive bene- cannot be “entitled” to benefits under Part Northeast, fits According under Part C. to A, person C, because once a enrolls in M + then, M + possibly C enrollees cannot be payments on his behalf are made under A, “entitled” to benefits under Part be- C, Part not A. Part Northeast points to they longer cause can no even receive ben- First, 426(c)(1) provisions. three states Rather, efits under Part A. can that “entitlement of an hospi- individual to receive benefits under Part C. See 42 tal insurance benefits for a month [under (i)(l). 1395w-21(a)(l), North- Part shall A] consist of entitlement to have argument east’s rests on the plain statute’s under, payment made subject to the meaning: a hospital patient is not “enti- in, limitations A ... on [P]art his behalf tled” to benefits that the law denies him. inpatient (emphasis services” added). 1395d(a) (“The See also id. ben- The trouble with reasoning, Northeast’s provided however, efits to an individual the insur- is elsewhere the 1997 Act program ance under [Part shall consist person A] assumes that a who enrolls in an of entitlement to payment have plan made on M + C is still “entitled to benefits Williams, essary light 1033, (D.C.Cir. of our conclusion that 348 F.3d Secretary 2003); retroactively apply cannot her in- Corp., Gatewood v. Wash. Healthcare calculations, terpretation pre-2004 (D.C.Cir.1991). DSH 933 F.2d 1040-41 And Concurring Op. commonly 21 n. but we judicial economy considerations of counsel say why here, the district court strongly doing erred before af- in favor of so where the see, firming grounds, e.g., on other Ginger likely district court to confront the same Columbia,
District
statutory
F.3d
1344-45
question
difficult
(D.C.Cir.2008); Kingman
again
Park Civic Ass'n v.
in the near future.
period
to allow
open
enrollment
FDA v. Brown &
Part A.” See
Wil-
plans.
change
120, 133, beneficiaries
Corp., 529 U.S.
Tobacco
liamson
(2000) (“It
1291,146
L.Ed.2d
120 S.Ct.
it
concurring colleague suggests
Our
statutory con-
canon of
a ‘fundamental
strange
Secretary
at all if
would
be
must
that the words of
statute
struction
informa-
mail Part
did
have to
in their
and with view to
read
context
enrollees,
be-
presumably
tion M + C
statutory
overall
place
their
about
already
cause M + enrollees
know
”
Dep’t
v. Mich.
(quoting Davis
scheme.’
Op.
21-
options. Concurring
their Part C
803, 809, 109 S.Ct.
Treasury, 489 U.S.
every year,
options change
22. But Part C
(1989))).
Section
103 L.Ed.2d
undoubtedly why
requires
Act
which is
1395w-21(a)(3)(A)
that a “Medicare
states
Secretary
update
the information
is a
eligible
person
individual”
+ Choice
annually
changes
she sends out
“to reflect
A”
under [P]art
is entitled to benefits
“who
availability
plans
[M
C]
B.” Under
[P]art
“enrolled under
premiums
plans.”
for such
benefits and
a person
once
reasoning,
Northeast’s
1395w-21(d)(2)(D). Contrary
42 U.S.C.
“eligible” for
longer
Part C he is no
elects
then,
suggestion,
concurrence’s
C,
longer “entitled to
he is no
Part
because
indeed if
were
would be odd
(because payments
under Part A”
individuals
required to mail information to
longer
no
made under
his behalf are
required to
not enrolled in Part C but not
A).
incongrui-
Aside
the textual
from
who are
persons
mail such information
saying that once
would result from
ty that
all,
in Part C. After M + C enroll-
longer
he is no
enrolls in Part C
person
likely
most
to be inter-
people
ees
it,
neighboring
provi-
“eligible”
changes
ested in annual
to benefits
remains a
make clear that
sions
pro-
That a
plan availability.
neighboring
individual”
“Medicare
Choice
“pro-
requires
vision also
in Part C.
enrolling
after
even
broadly dissemi-
vide for activities [that]
coverage
about
nate” information
Part C
1395w-21(d)(2)(A),
instance,
Section
*7
beneficiaries,
id.
options to Medicare
“each
the
to mail
Medi-
requires
1395w-21(d)(l),
§
does not eliminate
informa-
eligible
+ Choice
individual”
care
pro-
oddity
interpretation
Northeast’s
plans, including
tion about available
C
informa-
“Broadly disseminating”
duces.
+
the Medicare
Choice
identifying
list
“[a]
same
options
not the
tion about Part C
is
be)
(or
available to
plans that
will
+
every M C
mailing plan
as
information to
area,”
before
start
residents
1395w-21(d)(2)’s
were, §
enrollee,
if it
period.
If
open
annual
enrollment
each
requirement would be su-
mail-notification
“eligible”
longer
+
no
for
M C enrollees are
perfluous.3
enroll, this
once
means
Part C
interpretation would also
to mail them this
Northeast’s
required
is
an
anomalous result
that
information,
produce
though
purpose
even
(h)(1);
1395w-22(a)(7),
(c)(2);
§
id.
argues
relying
id.
The concurrence also
3.
1395w-23(o )(3)(B)(ii);
§
§
1395w-
provision
interpret
id.
open-season
to
notice
1395w-27(e);
24(e)(1)(B), (e)(4)(B);
id.
§ id.
A”
benefits under Part
the term “entitled to
event,
1395w-27a(D(4)(A).
giv-
any
§
wag
And in
“using very
tail
amounts to
small
to
requires
Op.
en
us to determine
large dog." Concurring
But as
that this case
very
22.
Part C
relationship
infra,
only provision
between enrollment
not the
discussed
that is
benefits, makes
to Part A
and entitlement
enrolls in Part C
that assumes
relationship plays
how that
sense to consider
under Part A. See
remains entitled to benefits
1395w-21(a)(3)(A), (e)(2)(D),
provisions.
out in other
also 42 U.S.C.
in-
general
M +
must
Another
odd un-
plan
provide
plan
C
becomes
“upon request”
formation
to non-M + C en-
interpretation
der Northeast’s
1395w-
rollees,
need
such informa-
provide
but
21(h)(1),
+
prohibits
plans
M C
from
request
with
upon
persons
tion
to
distributing marketing
to “Medi-
materials
plan.
M +
different
C
id.
1395w-
+
Choice
individuals” unless
22(c)(2) (requiring
+
or-
“Medicare Choice
to
plans
first submit
materials
ganization[s]”
coverage
to provide “general
Secretary for review. Under Northeast’s
general comparative plan
information and
statute,
reading
plans
would be un-
+
eligi-
information” to “Medicare
Choice
marketing
able to send unreviewed
materi-
upon request).
ble
But an
individuals]”
non-M +
als to
C enrollees but free to send
change
M + enrollee
to
looking
plans
C
already
such materials to individuals
in an
likely
just
learning
to
as interested
plan,
M +
because
individuals
those
options
looking
about his
to
someone
longer
no
+
would
be “Medicare
Choice
join
plan
an
M
first time.
It
eligible individuals.” This would make lit-
would make no
re-
Congress
sense
to
tle sense:
C enrollees are no less vul-
quire
to
plans
provide
upon
information
to misleading marketing
nerable
cam-
other,
request to the one but not the
but
paigns than
individuals not enrolled
is the result Northeast’s interpreta-
Part C.
produces.
tion
says
colleague
The concurrence
we claim
un-
he
concurring
says
Our
finds
der Northeast’s
en-
M C
nothing odd
requiring
plans
with
M+C
rollees “would not
be able
obtain
submit marketing materials to the Secre-
information from their Part
plans,”
tary
sending
review before
such mate-
points
then
out a separate provision that
rials Medicare beneficiaries not enrolled
requires plans
provide
information
Concurring Op.
Part C.
22.
do
Nor
we:
their own enrollees.
Concurring Op.
1395w-21(h)(l) requires
as much. What
1395w-22(c)(l)).
(citing 42 U.S.C.
This
odd, however,
we do find
a provision
is a straw man. The problem with North-
plans
sending
from
prohibits
unre-
east’s
is not that
it would
marketing
viewed
materials to individuals
+ plans
excuse M C
providing
from
infor-
not enrolled in M + C but permits them to
Rather,
mation to their own enrollees.
those
send
same materials to M + C enroll-
problem is that it
require plans
would
ees. The
any
concurrence does not offer
provide
upon request
information
indi-
why Congress
reason
would treat enrollees
viduals not enrolled in
at
M+C
all but not
here,
*8
differently
and non-enrollees
and we
require plans
provide
this
information
can think of none.
individuals
in +
enrolled M C with a differ-
plan.
ent
There
Last but not
least
why
is no reason
Con-
are 42 U.S.C.
gress
1395w-24(e)(l)(B)
(e)(4)(B).4
require
would
plans
provide
infor-
These
mation
former
not
provisions
average
but
the latter.
limit
premiums,
de-
”
whole,'
concurring colleague
4. Our
makes
including provisions
much
“not relied on”
that
provisions
fact
we mention several
by
parties.
Mortg.
v.
Martini
Fed. Nat’l
did not cite in her
briefs.
Ass’n,
1336,
(D.C.Cir.1999)
178 F.3d
1345-46
Concurring Op. 22-23.
"Under Chevron's
(quoting
Shipping
N.Y.
Ass'n v. Fed. Maritime
however,
step,
duty
first
we
a
have
to conduct
Comm’n,
1338,
(D.C.Cir.1988);
854 F.2d
1355
‘independent
an
examination' of the
in
statute
Cartier, Inc.,
281,
Corp.
K Mart
U.S.
v.
486
question,
looking
particular
not
'to the
291,
1811,
(1988))
108 S.Ct.
fits were 1395w-21(e)(2)(D), example, Section organization year.” + Choice provides that an institutionalized “Medi- possible it is provisions These assume may eligible care + individual” Choice under Part A both entitled to benefits + “change plan the Medicare Choice plan. in an M+C and enrolled pro- which the individual is enrolled.” The provisions Part C enacted after Other may person vision assumes that a enroll a original 1997 Act also assume that plan yet an still M + C remain plan in an M+C is still person who enrolls eligible individual.” “Medicare Choice Part A.” Al- “entitled to benefits under But an M + reasoning under Northeast’s C though laws that do seek “[l]ater enrollee could never be “Medicare clarify general an enacted term and earlier individual,” is eligible Choice because he for their depend [on] do not effectiveness no longer entitled to benefits change meaning ... a in the earlier A. normally point,” “beside the statute” are Monzel, 528, F.3d States v. United concurring colleague Our responds (D.C.Cir.2011) Ada, (quoting Gutierrez arguing Northeast’s 257-58, 740, 250, 528 U.S. 120 S.Ct. allow + en- would still institutionalized M C (2000)) (internal quotation L.Ed.2d 747 Op. plans. Concurring rollees to switch omitted), subsequently we en-
marks
find
But this response
point.
22-23.
misses the
provisions
acted Part C
relevant
is
inter-
problem not
Northeast’s
they
relationship
case
inform the
because
pretation would prevent
institutionalized
Part C enrollment and Part
between
M +
changing plans,
enrollees from
but
Smith,
entitlement, see Branch v.
538 U.S.
1395w-21(e)(2)(D)
rather that
describes
Northeast’s
could
be the case.
fees
such
could not exceed “the Medicare
(as
portion
[§
+
defined in
1395w-
Choice
provisions relevant
to this
Two more
27(e)(2)(E) ])
$100,000,000.”
of
Id.
§§
point
1396d(p)(l) and
1395w-
1395w-27(e)(2)(D)(ii)(IV).
para-
That
22(a)(7).5
1396d(p)(l) provides
Section
turn,
in
graph,
defines “Medicare +
that a
insur-
person “entitled
“(i)
average
portion”
Choice
number
ance
under
A”
meets
benefits
who
[P]art
requirements
“qualified
certain
is a
in
+
income
of individuals enrolled
beneficiary,”
while
1395w-
plans during the fiscal year,”
Choice
divid-
22(a)(7)
“qualified
“(ii)
instructs
a
by
average
ed
of individu-
number
Medi-
beneficiary ...
in a
who is enrolled
als
A ...
entitled
benefits under [P]art
+
specialized
special
needs
plan
[M C]
B
during
[P]art
and enrolled under
may
charged
individuals”
not be
costs
year.”
interpre-
fiscal
Under Northeast’s
above a
Read together,
certain amount.
tation,
percent
if
of
more than
individu-
a
provisions expressly contemplate
these
so,
eligible
in
als
to enroll
Part
do
then
C
person
is both
“entitled
benefits
this fraction
exceeds
value of
because
C,
A”
under Part
and enrolled in Part
+
interpretation
Northeast’s
deletes M C
something
says is impossible.
Northeast
(because
enrollees from the denominator
The concurrence’s
anal-
response
M +
interpretation
under Northeast’s
en-C
ysis again misses the
point.
problem
longer
rollees are no
entitled to benefits
not,
suggests,
is
as the
concurrence
A).
Part
Let’s
in
plug
under
some num-
Northeast’s
would cause
Suppose
people
bers.
there are 50 million
than
pay
Medicare rather
Medicaid to
entitled to
under
benefits
Part
and en-
+
low-income M C enrollees. See Concur-
(and
B
rolled
Part
thus
to enroll
Rather,
ring Op.
problem
22-23.
C),
in Part
million
and 30
of them enroll in
provisions,
these
when
to-
read
two
equal:
Part C. The fraction would then
gether,
person
describe a
who is simulta-
-
=
million/(50
million)
million
30 mil-
neously
an
=
million
1.5.
That would
turn
lion/20
A,
entitled to benefits
under
some-
portion
make
“Medicare
Choice
thing Northeast’s
interpretation does
*
=
$100,000,000”
$100,000,000
equal:
1.5
allow.
$150,000,000. Obviously the “Medicare +
Yet
another
no
makes
portion”
Choice
of dollar amount cannot
sense
under Northeast’s
equal
greater
original
sum
than the
dol-
1395w-27(e),
which authorizes the Secre-
again,
lar amount.
in-
Here
Northeast’s
tary
charge
+ plans
help
fees to M C
terpretation
to a
leads
nonsensical result.6
recoup
distributing
the costs of
informa-
tion about Part
Rather than
options, among
attempting
why
other
to show
things.
42 U.S.C.
1395w-
fraction still
in-
works
Northeast’s
is,
1396d(p)(l)
5. Section
located
C.
is not
in Part
That
denominator
frac-
statute,
of the Medicare
but is relevant here
tion
unaffected
enrollments
Part C.
key
because it defines a
term in
1395w-
Suppose again
peo-
that there are million
22(a)(7), which is located in Part C
ple eligible to enroll in Part C
and million
Medicare statute.
equal:
do.
them
The fraction would then
=
million
.6. That would in turn
million/50
Secretary's interpretation,
6. Under the
how-
portion
make
“Medicare
Choice”
ever,
perfectly
fraction works
because
*
=
$100,000,000
$100,000,00
equal:
.6
entitled to
Part A does
*10
$60,000,000.
not lose that entitlement when he
in
enrolls
separate question that we ad-
concurring
in- 2004 is a
colleague
our
terpretation,
dress below.
can we
herring. How
raises a red
stead
interpretation produces
Northeast’s
say
1395w-27a(f)(4)(A)
instructs
Finally,
fis-
for this fraction for
result
nonsensical
annually a
Secretary to determine
asks,
2001-2005,
also
he
when we
years
cal
“statutory
percent-
national market share
North-
Secretary
apply
must
hold that
equals
proportion
[Medi-
that
“the
age”
cal-
pre-2004
to
DSH
east’s
nation-
eligible
+
individuals
Choice]
retroactivity
problems?
avoid
in an
+
ally
[M C]
culations
who were not enrolled
+
Op. 23. But
the issue
If M
are not entitled
Concurring
plan.”
C enrollees
not
to benefits under Part
and thus
us
not whether
before
individuals,”
eligible
+
2004,
“Medicare
Choice
she
reasonably before
when
acted
of “Medicare
proportion
then
may
interpreted
have
“entitled to
eligible
in
Choice
individuals”
include
Part A” to
M+C enrollees
under
always
percent.
an M C
1395w-27(e)(2)(E)
to exclude
under
but
Congress
Surely
did not mean to tell the
calculations,
the DSH
those enrollees in
annually
a number
calculate
to whether
express
opinion
we
no
always
to 1. Northeast’s in-
equal
that is
inconsistently
interpreting
phrase
that
provision
terpretation makes
non-
IBP,
Compare
Inc.
permissible.
would
sense.
34,
514,
Alvarez,
21,
546 U.S.
126 S.Ct.
(“[I]dentical
(2005)
words
L.Ed.2d 288
two
are thus faced with
inconsistent
We
statute
parts
statutory provisions.
used
different
the same
Northeast
sets
provisions
the same
us to
that
entitlement
generally presumed
points
are
have
tie
payment
Ener-
and state
once a
meaning.”),
Envtl.
v. Duke
with
Def.
C,
561, 574,
longer
in Part
are no
enrolls
127 S.Ct.
gy Corp., 549 U.S.
(2007) (“[T]he
Secretary points
made under Part A. The
‘natural
benefits under But this does [P]art Congress unambiguously not that prove Secretary’s interpretation But the does “paid.” intended “entitled” to mean More- actually collapse not Section terms. over, specific fractions’ focus on 1395i-2(a) provides that individuals who days perfectly under works well Secre- in age have reached Part tary’s “meeting view that “entitled” means B, and are U.S. residents but are lawful 426(a) (b).” statutory criteria in “not otherwise entitled to benefits” under every patient A, Not who meets the criteria eligible “shall in Part be to enroll paragraphs during portion program those some insurance [Part established 1395i-2a(a) hospital Similarly, § of stay provides A].” his will meet those criteria age not instance, individuals who have reached 65 stay. for all person of For and are not “otherwise entitled to benefits” Security who collects Social turns and who Part A under but who meet certain other stay 65 his during will become “shall criteria to enroll” Part “entitled” benefits under Part A his provisions A. specify Both further that af- sixty-fifth birthday. See 42 U.S.C. persons ter A they such enroll Part 426(a). Or, under age 65 become “entitled to benefits” under Part A twenty-fifth reaches his calendar month of during period their of 42 enrollment. See disability entitlement 1395i-2a(c)(l). 1395i-2(a), §§ during stay his hospital will become Thus, even view upon “entitled” benefits under Part A “entitled to “meeting benefits” means reaching twenty-fifth his month of disabili- statutory criteria for entitlement bene- 426(b). ty entitlement. See That id. fits,” for, possible it is “eligible” to be but Congress tied the DSH calculation to indi- to, not “entitled” benefits because vidual of entitlement does fore- not yet one has “enrolled” in program. Secretary’s interpretation. close the Moreover, Congress the usual rule that Nor the fact that the DSH fractions meanings intends different it when uses speak “eligibility” for Medicaid “en- but weight different words has little here. As titlement” to enlightening. Medicare See Judges Luttig recog- and Batchelder both 1395ww(d)(5)(F)(vi)(II) id. (stating cases, an nized earlier line of DSH numerator the Medicaid fraction has, “Congress throughout the various of’ patients “eligible” “consistís] for Med- statutory provi- Medicaid icaid but “entitled” to benefits under sions, .consistently ‘eligible’ used the words A). argues Northeast Con- potential to refer to Medicaid beneficiaries gress’s disparate use of these two words potential and ‘entitled’ to refer indicates intended “entitled” to mean beneficiaries for no reason.whatever something “eligible” different from anyone (including Secretary, who is Secretary’s interpretation that the “enti- ...) intimately familiar with the statutes “meeting tled” statutory criteria has able Hunting- been to divine.” Cabell entitlement” conflates terms. Shalala, Hosp., ton Inc. v. 101 F.3d Co., Pillsbury v. Eng’g United U.S. (4th Cir.1996) J., (Luttig, dissenting); 197, 199, (1952) 72 S.Ct. L.Ed. Hosp., Sec’y see also Jewish Inc. v. (identifying presumption Servs., that Congress Health & Human 19 F.3d (6th Cir.1994) (Batchelder, means things J., different when it dissenting).7 uses differ- cases, 7. earlier line of DSH cir- "eligible” four cuits concluded that the terms
13 sum, has Congress clearly not fore- merely was bor- Congress the extent To elsewhere in the these terms from rowing interpretation closed the statute, too it would be a mistake read +M C enrollees are entitled to benefits in nomenclature. much into the difference Rather, it a under Part A. has left statuto- carry meanings might different The terms Secretary, the the ry gap, and it is for not here, the is weak. but inference court, Cnty., gap. to fill that See Catawba (D.C.Cir. EPA, 20, N.C. v. 571 F.3d 35 Medicare statute’s inconsis the
Given 2009) curiam). phrase the “en specialized (per use of tent and A,” con titled to benefits parlance” appeal to “[c]ommon currence’s B Al Concurring Op. 21. little force. has step At two we ask whether the Chevron typical might a enrollee not
though
M+C
agency’s interpretation
of the statute is
himself as “entitled
describe
Abington
Nursing &
“reasonable.”
Crest
A,”
a
familiar with the
person
Sebelius,
717,
Rehab.
719
Ctr. v.
575 F.3d
varying and inconsis
statute’s
Medicare
(D.C.Cir.2009).
however,
case,
In this
we
might.
Statutes
phrase
uses of
tent
if
question,
... must
do not
because even
specialists
be read
reach
“addressed
specialists,”
judges
Secretary’s present
with the minds
Frankfurter,
Felix
Some
reasonable,
cannot be
retroac-
applied
Reflections
Statutes, 47 Colum. L.Rev.
Reading
tively
years
to fiscal
1999-2002.
(1947),
527,
provisions are
and few
586
agency
that an
It
is well settled
ones
than the
at
issue
specialized
more
may
a retroactive rule ab
promulgate
not
here,
once de
Fourth Circuit
congressional authorization.
express
sent
most
“among
completely
scribed
Georgetown
Hosp., 488
See Bowen v.
Univ.
experi
within human
impenetrable texts
208,
468,
Kozlowski,
U.S.
109 S.Ct.
102 L.Ed.2d
ence,”
42
Ass’n
v.
Rehab.
of Va.
(4th Cir.1994).
(1988).
moreover, “in-
1444, 1450
Rulemaking,
493
F.3d
1265;
Huntington Hosp.,
F.3d
provision carry
Cabell
101
as used in the DSH
"entitled”
cf.
for
meanings.
Huntington
at
We decline to follow these cases
different
See Cabell
988.
First,
meaning
(majority
three
Hosp.,
opinion)
F.3d
reasons.
101
at 988
phrase
Part A” was
(“Congress chose
entitled
"entitled to benefits under
the word
for
directly
any
at issue in
of the cases.
proxy
word
for the
Medicare
and the
Rather,
proxy. Congress'
separate
issue was whether the
use
Medicaid
interpreted
“eligible
properly
phrase
intended for
had
words demonstrates it
each
patient days
separate meaning.”);
Legacy
only
to include
[Medicaid]”
see
have a
also
Shalala,
actually paid by
Medicaid
Hosp.
Ctr. v.
97
a state
Emanuel
& Health
were
Cir.1996);
(9th
plan,
aban-
Deaconess
an
F.3d
Shalala,
Health
Admin.
Corp.
doned in 1997.
Care Fin.
Health Servs.
F.3d
(Feb.
1997).
(8th
curiam);
Cir.1996)
Ruling
interpreta-
(per
Jewish
97-2
(majority opinion).
tions
in these cases
Hosp., 19 F.3d at
In-
of "entitled
benefits”
Second,
deed,
were
only
were
dicta.
the cases
did
circuits conclude that
therefore
these
carry
meanings,
all
Part C
and so
decided before
was enacted
the terms
different
but
spoke
interpreted
payment
under Medi-
to benefits” to mean
of entitlement
also
“entitled
generally
partic-
right
payment
without
to the
to have
reference
has
(“To
payment
Hosp.,
at
ular
under which
would oc-
19 F.3d
“Part”
made.
Jewish
Third,
grapple
cases
with
means that one
cur.
failed to
be entitled
some benefit
Judge
Judge
right
Luttig’s and
Batchelder's obser-
possesses the
title to that
or
benefit.
has,
Thus,
ap-
readily
Congress
for no
the calcu-
vations that
[fraction]
the Medicare
fixes
reason,
"eligi-
parent
chosen to
the word
upon
right to
an
use
the absolute
receive
lation
"entitled”
payment.”);
ble” Medicaid beneficiaries and
independent
readily
defined
Hosp.,
beneficiaries.
Legacy
97 F.3d at
also
Emanuel
see
agency’s process
eludes not
of which
she
“adopting policy”
she said
was
rule,
formulating
agency’s
but
counting
also
*13
process
still,
fraction
M +
modifying
of
a rule.” Alaska
because
C enrollees “are
FAA,
sense,
in some
Hunters Ass’n v.
177
entitled to benefits under
F.3d
Prof'l
1030,
48,916, 49,099
...
(D.C.Cir.1999);
Fed.Reg.
Part A.” 69
1034
see also 5
2004).
(“
551(5)
11,
(Aug.
making’
Accordingly,
Secre-
means
‘[R]ule
tary
412.106,
revised 42 C.F.R.
agency
formulating,
HHS
process
amending,
regulation
governs
rule[.]”);
calculation of
Paralyzed
or
a
DSH
repealing
Veter
fractions,
L.P.,
state expressly
to
that M +
ans
D.C.
Am. v.
Arena
117 F.3d
(“Under
patient days
579,
(D.C.Cir.1997)
should be counted in the
APA,
586
Medicare
fraction.8
42
See
C.F.R.
agencies
obliged
to
engage
notice
(2007)
412.106(b)(2)
(providing that a
before formulating regula
comment
hospital’s
Medicare fraction
tions,
determined
applies
‘repeals’
as well to
or
”
by dividing
patient
“the
days
number of
omitted)).
(emphasis
Thus,
‘amendments.’
...
patients
to
furnished
who ... were
against
rulemaking
rule
retroactive
ap
(or
entitled to
both Medicare Part
Medi-
plies just as much to
amendments
rules
(Part Q)
Advantage
by
and SSI”
“the
as to original rules themselves.
days
total number of
...
pa-
furnished to
To
determine whether
rule .is
(or
tients
entitled
Medicare Part A
retroactive,
impermissibly
first
“we
look to
(Part C))”).
Advantage
Medicare
Prior to
see whether it effects a
change
substantive
2004, the regulation
specify
did not
where
from the agency’s prior regulation or prac M + C enrollees should be counted. See
tice.”
Mining
Dep’t
Nat’l
Ass’n v.
La
412.106(b)(2)(2003)
§id.
(providing that a
bor,
849,
(D.C.Cir.2002).
292 F.3d
860
If
hospital’s Medicare fraction is determined
the rule departs
practice,
from established
by dividing “the
patient
number of covered
we then examine
impact,
any,
its
if
on the
days ...
furnished to patients who ...
legal consequences of prior conduct. A were
to both
entitled
Medicare Part A and
rule that
past
legal
“alter[s]
conse
SSI”
“the total
days
number of
quences
past
retroactive;
actions” is
patients
furnished to
entitled to Medi-
rule
that alters
effect”
“future
A”).
care Part
actions,
past
contrast,
not.
Mobile
Secretary
just
The
argues that
because
FCC,
Relay
1,
v.
Assocs.
457 F.3d
11
she amended
412.106 to state explicitly
(D.C.Cir.2006)
Bowen,
(quoting
488 U.S. at
days
that M+C
should be counted in the
219,
(Scalia,
J.,
S.Ct.
concurring))
Medicare fraction does not mean she omit
(internal
omitted).
quotation marks
Put
days
prior
ted M C
to the amendment.
differently,
a new rule is
“[i]f
‘substantive
Baptist
See
Mem’l Hosp.
Trian
—Golden
ly inconsistent’ with a prior agency prac
(D.C.Cir.
Sebelius,
gle
226,
566 F.3d
tice and
legal
attaches new
consequences
2009) (“[W]hen
legislative
or executive
completed
enactment,
events
before its
body
rule,
adopts a new
law or
clarifying
it
operates
retroactively.” Arkema Inc. v.
necessarily
does not
follow that an earlier
EPA,
(D.C.Cir.2010).
F.3d
version did not have
meaning.”).
the same
Secretary’s
Rather,
present interpreta
says,
she
merely
amendment
tion stems
a 2004 rulemaking
from
longstanding
confirmed her
view that
error,
2007)
8.
Because of
clerical
(explaining
change
text of
the failure to
actually
412.106 was not
until
]”).
revised
2007.
the text
"inadvertent[
in 2004 was
47,130, 47,384
Fed.Reg.
See 72
(Aug.
bills for
furnished
“no-pay”
services
included
days
should be
patients.
Program
M + C
Memoran-
+ enrollees
fraction because M C
(Intermediaries),
60A,
HCFA Pub.
dum
under Part
are still “entitled
1998).
(July
No. A-98-21
Transmittal
A.”
Northeast,
According
treatment
look at
A brief
bills to
M + C
needs these
count
however,
be
days prior
of M C
fraction,
and the
revision to
claim
lies her
Perhaps
claim
does not
otherwise.
policy.
a longstanding
§ 412.106 codified
*14
reason,
Secretary
in 2007 the
reversed
hearings, providers
PRRB
In two recent
begin
hospitals
and directed
to
course
all
on hundreds
evidence based
submitted
“no-pay”
pa-
M +
submitting
bills for
C
hospitals from numerous
reports
cost
5647,
Change
CMS
Request
tients.
Pub.
2004,
Secretary rou
the
between
100-04,
20,
(July
Transmittal No. 1331
days
M + C
from the Medi
tinely excluded
2007).
further appears
prior
It
Consulting
See
DSH
care fraction.
Sw.
2004,
using
not even
was
Grps.
v. BlueC
Days
Medicare
Choice
days
care
in
managed
data field
Ass’n, PRRB Dec. No.
BlueShield
ross
file for
program
calculating Medicare frac-
4211391,
2010-D52,
(Sept.
*12
2010 WL
at
Baystate
v. Mut.
tions. See
Med. Ctr.
30, 2010),
in
& Medic
reprinted Medicare
Co.,
Ins.
PRRB Dec. No. 2006-
Omaha
¶
(CCH) 82,679 (reviewing evi
aid Guide
(Mar.
D20,
752453,
17,
2006 WL
at *31
2004,
the Secre
that from
dence
2006),
in
reprinted Medicare & Medicaid
in the
days
M +
tary
eount[ed]
“never
C
¶
(CCH)
(“[HHS’s
81,468
Guide
rarely, and then
except
fraction
[Medicare]
inpatient
programmer
database]
testi-
rev’d,
mistake”),
of PRRB Dec.
Review
field
database]
fied that
[the
(Nov. 22,
2010-D52,
sequences of low-income Ill aware of no that author- We are statute analysis, passage we conclude our Secretary to retroac- As promulgate izes the com- lamenting Absent from Learned Hand rules for DSH calculations. tive authorization, of another plexity regulatory behemoth— Secretary’s present such *16 to the Internal Revenue Code—comes which marks a substantive interpretation, her of ex- mind: prior practice from departure M + C from the Medicare
cluding know that are the [provisions] I these fraction, may retroactively applied not be industry ingenuity of fabulous result years 1999-2002. to fiscal I yet help recalling ... at times cannot
saying of William about certain James Hegel: they of that were no passages rationali- passion doubt written with a concurrence’s puzzled by We help wondering that one ty; but cannot that we have “twisted suggestion [our- any whether to the reader have holding, a knot” on the one by into selves] significance save that the words are hand, does not that DSH strung together syntactical with correct- unambiguously foreclose the ness. Much of the is now as difficult law are en- M + C enrollees fathom, it to and more and more of is A, to Part while also titled benefits under so; likely to be little doubt there is hand, holding, on the other that the Secre- period that we are of increas- entering retroactively her inter- tary apply cannot regulation, and it will be ingly detailed calculations. pretation pre-2004 DSH duty judges path thread the Concurring Op. 24. The concurrence through labyrinths. these fantastic we problems out that none of the points Hand, Thomas Memoriam: the Secre- identify above surfaced while Learned Swan, (1947). Walter urges. view now 57 Yale tary took the Northeast L.J. intri- Having way through wound our problems But the avoided those fractions, phrase tangle to benefits cate of DSH Medicare by reading “entitled more, things requirements, A” to we hold under Part mean different Choice 34,968, has fore- Fed.Reg. Congress unambiguously places. different 1998) (June 26, 34,979 (describing Secretary’s interpretation Secre- closed older. enrollees are entitled are 65 or Medicare has several “parts,” Part A. But that the two which are central we also hold provides hospitalization if case: Part A Secretary’s present interpretation, even bene- (an government-administered fits fee- pass through issue step it would Chevron two insurance, may for-service and Part C which we do not not be upon opine), called (previously “Medicare+Choice” and retroactively Beverly’s 1999- applied to Advantage”) pro- now called “Medicare affirm adjustments. DSH We government-subsidized vides enrollment grant summary judg- court’s district private plans. insurance for Northeast for reason. ment this second Department The of Health and Human So ordered. manages by Services Medicare Part A KAVANAUGH, Judge, Circuit paying hospitals pre-determined sum concurring in the judgment: inpatient each hospitalization covered ser- vice, regard without in- the actual cost Although presented the legal question by hospitals. curred required HHS is very complex here is embedded within a by statute disburse extra Part A funds legal significant scheme and has financial hospitals serve a “significantly dis- ramifications, question itself is proportionate pa- number of low-income straightforward: If a re- hospital patient 1395ww(d)(5)(F)(i)(I). tients.” 42 U.S.C. Medicare ceives benefits under Medicare that, reasons, theory for a variety of C for a particular “patient day,” hospitals costs more to significant treat also “entitled” for that same patients, hospi- numbers of low-income day” “patient to Medicare benefits under so tals that do should therefore receive view, my A? In the text of higher pro- reimbursements. A statutory statute tells answer us the vision known the “disproportionate agree analysis no. I with the careful adjustment” share hospital provides con- Judge Bates in the District Medi- Court: *17 (to put charitably) voluted formula for care beneficiaries must choose between calculating how much money extra HHS government-subsidized private insurance pay hospitals must that disproportion- plans under Part government-ad- C and ately poor. serve The formula is de- A, ministered insurance under Part signed proportion to measure the of low- choose, they obviously after patients given income at a hospital for a on the “patient entitled same day” bene- particular cost-reporting period. both plans. reject- fits from kinds of HHS and, ed that of delving numbing the text into too much Without result, detail, significantly undercompensated say it suffices here to that the statu- (and Beverly Hospital many hospi- tory other calculation relevant re- this case tals) for the treating quires costs of Medicare a determination for each of patients. patient days Because HHS of misapplied up number “made (for statute, I Beverly Hospital patients would rule for days) who such were entitled judgment and affirm the District under part of the benefits A of [Medicare].” ground. 1395ww(d)(5)(F)(vi)(I). on that Court U.S.C. Beverly Hospital treated a dispropor-
I tionately high pa- number of low-income Through the program, during years Medicare tients fiscal through provides Federal Government health in- and therefore was due to receive to, others, among surance who doing Hospi- Americans extra so. The given day A cannot also receive of those Part for a calculation challenges HHS’s tal day. Part contends that benefits under C Hospital payments. formula, formula, Therefore, improp- calculating HHS HHS, applying when required in Medicare to differentiate Part-C-attrib- erly patients counted days to benefits from Part-A-attribut- patients patient “entitled utable Part C as A,” though Medicare patient days. even able part under receive benefits under do not recipients Second, statute the Medicare establishes Hospital, HHS’s According to the Part A. 4- indi- that “each Medicare Choice component of the misinterpretation of that ... elect to receive vidual is entitled to agency to formula caused the statutory original ... through [Medi- benefits Hospital. undercompensate the parts under program care fee-for-service straightfor- to a case boils down This ..., through B in a or enrollment statutory interpretation: question ward plan [part Medicare Choice under C].” in and receives is enrolled person If 1395w-21(a)(l) added). (emphasis U.S.C. particular for a benefits hospitalization words, recipient In other a Medicare through a Medicare + Choice day” “patient the different parts makes choice between Medicare, Part C of pursuant purposes obtaining of Medicare for for that same also “entitled” coverage. The statute indicates “benefits day” hospitalization “patient that a cannot be enrolled in Part A patient A” In other part of Medicare? at the time. Once the same words, patient can a be both enrolled recipient part chooses a and en- A benefits entitled to Part Part C and rolls, he or she becomes entitled to bene- day ? The answer is no. the same part, under that under that fits though pa- Even part. ParNC-enrolled reinforcing points textual mutually Four right tient maintains the to cancel enroll- support that conclusion. (orA ment in Part C and switch to Part First, key statutory language versa) open in a future enrollment vice requires retrospec- HHS to focus day period, any given patient on days. To reiter- tively specific patient hospitalization entitled to ate, to calculate requires the statute HHS only the of Medicare which he or part up “made the number of pa- A Medicare currently she is enrolled. were entitled (for days) such patients particular day in Part on a tient enrolled part A.” to benefits under *18 to receive benefits is therefore entitled added). 1395ww(d)(5)(F)(vi)(I)(emphasis A, C, and not under Part under days” “for such the statute The words day. Similarly, patient a Medicare specific count clear that HHS must make particular day in Part A on a enrolled who, patients on those A, under Part entitled to receive benefits A entitled to Part bene- specific days, were C, day. for that and not under Part makes clear that fits. The word “were” Third, provides the Medicare statute backward-looking calculation de- this is a a “payments under a contract with kind of benefits signed to determine what ... with organization specific on a Medicare Choice specific patient a received electing a Medi- respect to an individual requires HHS to isolate day. The statute organiza- plan care + Choice offered patients hospital days attributable the amounts which tion shall be instead were, days, receiving pay- benefit on those of contract) (in of the would oth- A the absence Part A of Medicare. through ments parts payable [Medicare] under receiving benefits under erwise who is patient 20 1395w-21(i)(l) (em- previously 42 four courts of that have appeals
A and B.” U.S.C.
added).
could,
All Part C enrollees
phasis
interpreted that
this formula.
term
chose,
in-
if
be enrolled
Part A
Shalala,
Hosp.
Huntington
Cabell
v.
1395w-21(i)(l)
stead. Section
establishes
(4th Cir.1996); Legacy
F.3d 984
Emanuel
payments
that HHS makes benefit
Shalala,
Hosp.
v.
& Health Ctr.
97 F.3d
payments
agency
Part C instead
(9th Cir.1996);
of
Deaconess Health
A,
would otherwise
under Part
make
and
Shalala,
(8th
Corp.
Svcs.
v.
country’s permit uation. But this statute does majority opinion The cites 1395w- balance on the backs pursue HHS to fiscal 21(d)(2)(A), provision requires annu- providers and beneficiaries of Medicare (those al notice to Part A beneficiaries way. this A) to benefits under Part “entitled” Maj. in Part option their to enroll C. See parlance and common sense Common majority Op. opinion expresses at 7. The in- Hospital’s with the also are consistent that, Hospital’s ap- concern example, For an terpretation the text. proach, provision might require military active-duty member of the is not notice to Part C enrollees. That concern political rally. at a permitted speak puts all misplaced because HHS to serve in the mili- might You be entitled relevant information on its website and you might speak be entitled to at tary, and both Part A and Part C practice notifies you rallies. But are not entitled political options. of their available beneficiaries at to do both the same time. When presumably That’s because a different sub- pension retiree elects a benefit when retir- provision requires section of this that HHS entitled to choose an ing, the retiree is to medi- “broadly disseminate information sum, but not both. Or annuity lump or (and prospective beneficiaries medi- care n NFL’s rules on the coin toss: consider the beneficiaries) coverage options on the toss, you are you If win the entitled provided under this section order defend, possession goal or which active, choose informed selection.” 42 promote an 1395w-21(d)(l). Part A and apparent but not both. So it is with statutory notice re- point precise Part C of Medicare. opinion rejects position back before 2004. Part II.A majority different 3. Part II.A of the step argument, but *20 Hospital’s unnecessary Chevron one majority opinion thus is majority opinion II.B of the rules then Part given majority opinion’s conclusion. the Hospital anyway had a because HHS for the (d)(2)(A) quirement simply subsection only to non-Part C enrollees. Under the to ensure that non-Part C individuals learn Hospital’s interpretation, provision the options, about Part C precisely which is require approval would HHS’s before Part what required would still be under the plans marketing C send materials to Medi- short, Hospital’s interpretation. con- yet beneficiaries who are signed trary majority opinion’s to the suggestion, up for plan. such a Part C Contrary to (d)(2)(A) subsection creates no barrier to majority opinion, I nothing find odd interpretation. the Hospital’s, about that.
Probably important bigger more majority The opinion then turns here, 1395w-24(e)(l)(B) picture majority opinion’s (e)(4)(B). § reli- See relatively ance on minor open-season Maj. Op. Again, at 8-9. majority opin- provision notice interpret hugely dredged ion has up statutory provisions significant statutory (HHS reimbursement for- declined HHS has rely on. mula, which involves hundreds of well-represented case, millions was in this so the annually, of dollars using amounts to majority opinion is not making up for defi- n very small tail to wag very large dog. Rather, ciencies of counsel. citing Even if Hospital’s interpretation provisions would that even'- HHS —which has (as anomaly create an majority opinion dealing been years with this issue for —has it) in open-season sees provision, notice upon.) not relied I frankly see no anomaly that anomaly would be inconsequential, as with respect to provisions these that would above, explained any and in event would result from the Hospital’s interpretation. good not be a reason to rewrite the statu- provisions What those quite mean simply tory text of the reimbursement quite formula obviously is that Part enroll- thereby responsibility shift for hun- ees cannot be pay forced to more than dreds of millions dollars in costs from Part A and Part B beneficiaries for the government to hospitals and Medicare same benefits. beneficiaries. majority The opinion cites 1395w-
Next, citing 1395w-22(c)(2), 21(e)(2)(D) the ma- and claims that Hospital’s jority opinion suggests that Part C enroll- interpretation would mean that an institu- ees would not be plan able to obtain infor- patient tionalized Part C change could not mation from their.Part plans under the plans. Maj. Op. See at 9. But an institu- Hospital’s interpretation. Maj. See Op. at tional who dropped his Part C 7-8. HHS did. not rely on this statutory would then be entitled to Part A benefits provision brief, in its good and for reason. sign up thus for a different subsection, The preceding plan. 1395w~ problem So there’s no or 22(c)(1),requires plans give Part C anomaly simi- there. lar information to all of their Part C en- majority opinion cites 1395w-
rollees. The in language difference be- 23(o )(3)(B)(ii), provision qualifying about 1395w-22(c)(l) §§ tween and 1395w- Maj. Op. This, too, counties. See at 9-10. 22(c)(2) actually supports. Hospital’s yet another that HHS has not approach here. I again cited. fail to see the confusion
Next, the majority opinion majority cites opinion thinks would be created 1395w-21(h)(l). Maj. Op. at 8. if here we accepted Hospital’s inter- This is another provision that HHS has not pretation. quite It is clear that the deter- upon. event, relied In any provision, mination of qualifying counties examines too, any does not cause problems applied if whether particular 25% of those in a area *21 27(e)(2)(B), sign up who could for Medicare Part did applies to those same years. Maj. Op. at 10. How can sign up for Medicare Part C. that be? The majority opinion then majority cites opinion points The 1395w-27a(f)(4)(A). § Maj. See atOp. 11. 1396d(p)(l) says § that the Hospital’s This is still provision another that the ma- interpretation would cause Medicare rath- jority opinion cites but HHS did not. And pay poor er than Medicaid to Part C provision likewise does not cause any (Medicaid Maj. patients. Op. See at 9-10. problems under the Hospital’s interpreta- typically pays hospital expenses the Indeed, tion. majority opinion’s at- poor patients.) Putting aside tempt to create confusion provi- about this fact relatively poor that there are few appears severely sion strained in context patients, separate statutory pro- (which probably why HHS did not cite vision, 1395w-22(a)(7), § makes abundant- it). This in context asks a simple ly clear that Medicaid and not Medicare question: many people How in the area pick up patients. will the costs for such So signed up could have for Part C but didn’t? majority opinion’s far-afield citation to § 1396d(p)(l) pose any does not barrier to inconsistency
or B Hospital’s with the inter- pretation of the term “entitled” in the stat- To summarize prior discussion: The utory formula contained reimbursement majority opinion has cited a series of statu- 1395ww(d)(5)(F)(vi). 42 U.S.C. tory provisions theory on the that the Hos- pital’s interpretation majority opinion
The also cites 1395w- 1395ww(d)(5)(F)(vi) a Part 27(e). C ben- Maj. Here, Op. See at 10-11. —that eficiary is not entitled to Part A benefits majority opinion is particularly shaky particular patient day for a cause ground. —would This statute sets forth a formula anomalies in provisions other of the stat- allowed HHS collect fees from Part ute. But there are no such anomalies. plans, subject to certain caps, for fiscal Neither in isolation nor in combination do years 2001 to 2005. The problem is that provisions those undermine the straight- majority opinion here has accepted the interpretation forward Hospital’s interpretation of this statute for 1395ww(d)(5)(F)(vi) advanced years majority before 2004. opin- Hospital accepted by the District Hospital’s ion thus blesses interpreta- Court.4 2001, 2002, years tion for fiscal and 2003 yet says simultaneously that the Hos- Moreover, there is a serious overarching pital’s interpretation would create a “non- problem majority with opinion’s ap- respect proach sensical result” with 1395w- perhaps explain. easier to response my opinion, majority 4. In step whether at step Chevron one or Chevron opinion Hospital's event, raises doubt about the in- any important two. it's to under- terpretation say of the statute but declines to statutory question score this critical re- interpretation whether HHS's of the statute is open, mains at step least under Chevron two ("we permissible. Maj. Op. at 13 do not analysis, for resolution in future cases that question”). par- reach that lance, In D.C. Circuit years involve reimbursement for the after majority opinion open leaves is, years years 2004—that for the after the at possibility interpretation might that HHS’s adopted issue in this case and after HHS its step my perspec- fail at Chevron tive, two. From current of the statute. statute, HHS's violates the *22 view, Hospital’s that the recognize is to confidently pro- opinion majority The un- controlling was interpretation if Hospital’s interpretation, that the claims At a even now. bare til 2004 but is correct other to a host of apply would accepted, minimum, majority cannot opinion the or “nonsen- problems cause and provisions rely supposed on the anomalies plausibly everything respect results with sical” Hospital’s interpretation would the caps hospi- notices open-season from provisions of the statute cause for other counseling for the costs of tals’ simultaneously Hospital’s the endorse then, majority opinion But the programs. years. pre-2004 for the interpretation says Hospital’s that the around and turns actually controls for interpretation things can both How
years up until 2004. majority opinion says majority opinion can the true? How True complicated. Medicare statute is years up until for all the endorse —at least here concerns a enough. question But the results that “nonsensical” 2004—the same specific provision, not entire Medicare simultaneously decries? it in Complexity the code as whole code. pro- in a ambiguity specific ma- not mean is that the does explanation I think the majority one can fault vastly vision. No jority opinion has overblown examining Hospi- opinion’s time and effort supposed inconsistencies But fact that it takes a while with re- statute. interpretation would cause tal’s meaning specific In- out the of a statutory provisions. figure to other spect deed, statutory provision based on its text and majority opinion’s that the plain it is ambiguity. context is not the same as because there is misplaced concerns are analysis for the Chevron is to check its What matters against historical record it takes to climb the statuto- long not how predictions of “nonsensical” dire mountain; ry what matters is whether the As the ma- “strange” and “odd” results. Here, sufficiently top. clear at the view is accepted jority opinion says, HHS itself fog up, despite HHS’s effort interpretation until 2004. Hospital’s 1395ww(d)(5)(F)(vi) sufficiently clear HHS, Hospital’s accepting Yet while beneficiary establishing that a 1395ww(d)(5)(F)(vi), un- simultaneously entitled to benefits managed implement the rest of the stat- any specific patient day. der Part A for majority utory provisions cited any confusion or opinion apparent without provides very statute The Medicare I am of—and the meltdown. not aware carefully reticulated formula specific, certainly cites no—“non- majority opinion to hos- calculating supplemental payments “strange” sensical” or or “odd” results disproportionate num- pitals that serve respect 2004 with to those occurred before By patients. ber of low-income Medicare that the provisions. other So it turns out plans in Part counting patients enrolled majority opinion wrong saying part A” for as “entitled to benefits under if Hospital’s interpretation, accepted, days, misapplied HHS specific patient parts tumult in other would cause Beverly undercompensated statute statute. I affirm Hospital. ground, On that would to vacate and the District Court’s decision say Hospital’s that the
By attempting to this matter to HHS. remand (i) until controlling was (ii) of all the right cannot be because ensue, majority “nonsense” that would into a knot. The
opinion has twisted itself knot, my respectful
way to untie the