Petition for Writ of Certiorari — Advocate Christ Medical Center, et al., Petitioners v. Robert F. Kennedy, Jr., Secretary of Health and Human Services
Supreme Court briefDec 29, 2023
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No. 23-
In The
ADVOCATE CHRIST MEDICAL CENTER, et al.,
Petitioners,
v.
XAVIER BECERRA, Secretary, U.S. Department of
Health & Human Services,
Respondent.
On Petition for a Writ of Certiorari
to the U.S. Court of Appeals for the D.C. Circuit
PETITION FOR A WRIT OF CERTIORARI
Daniel F. Miller
Sara J. MacCarthy
Heather D. Mogden
HALL, RENDER, KILLIAN,
HEATH & LYMAN PC
330 E. Kilbourn Ave,
Suite 1250
Milwaukee, WI 53202
(414) 721-0463
dmiller@hallrender.com
Hyland Hunt
Counsel of Record
Ruthanne M. Deutsch
DEUTSCH HUNT PLLC
300 New Jersey Ave.
N.W. Suite 900
Washington, DC 20001
(202) 868-6915
hhunt@deutschhunt.com
Counsel for Petitioners
QUESTION PRESENTED
Because low-income patients are often costlier to
treat, Congress directed the government to reimburse
hospitals that treat a disproportionate share of lowincome patients at higher Medicare rates. A hospital
qualifies for higher payments in part based on the
number of days that a hospital provides inpatient care
to senior (or disabled) low-income patients, measured
as those who “were entitled to benefits under part A of
[Medicare] and were entitled to supplementary
security income [SSI] benefits.” 42 U.S.C.
§ 1395ww(d)(5)(F)(vi)(I).
In Becerra v. Empire Health Foundation, this
Court agreed with the agency that “entitled to
[Medicare part A] benefits” included “all those
qualifying for the [Medicare] program,” whether or not
Medicare paid for that hospital stay. 597 U.S. 424, 445
(2022). But Empire expressly left open the question of
whether “entitled to [SSI] benefits” likewise includes
all those who qualify for the SSI program. Id. at 434
n.2. The agency still insists, contrary to its Medicare
interpretation, that only patients who received an SSI
cash payment for the month of their hospital stay are
“entitled to benefits.” This case thus presents Empire’s
open question:
Does the phrase “entitled … to benefits,” used
twice in the same sentence of the Medicare Act, mean
the same thing for Medicare part A and SSI, such that
it includes all who meet basic program eligibility
criteria, whether or not benefits are actually received.
(i)
ii
PARTIES TO THE PROCEEDINGS
Petitioners are:
Advocate Christ Medical Center a/k/a Advocate
Christian Hospital
Advocate Condell Medical Center
Advocate Illinois Masonic Medical Center a/k/a
Advocate Northside Health System
Advocate Sherman Hospital
Advocate South Suburban Hospital
Advocate Trinity Hospital; Andalusia Health a/k/a
Andalusia Regional Hospital
Anderson Hospital
Ascension Borgess Hospital
Ascension Genesys Hospital
Ascension Macomb-Oakland Hospital Madison
Heights Campus
Ascension
Macomb-Oakland
Hospital
Warren
Campus
Ascension Providence
Ascension Providence Hospital Southfield Campus
Ascension River District Hospital
Ascension Saint John Hospital, f/k/a Saint John
Hospital and Medical Center
Ascension Saint Thomas Dekalb f/k/a Dekalb
Community Hospital
Ascension Saint Thomas Highlands Hospital f/k/a
Highlands Medical Center
Ascension Saint Thomas River Park
Ascension Saint Thomas Stones River Hospital
Ascension Saint Vincent Evansville f/k/a St. Mary’s
Medical Center
Ascension Saint Vincent Indianapolis Hospital f/k/a
St. Vincent Hospital & Health Center
Ascension Saint Vincent’s Birmingham a/k/a St.
Vincent’s Hospital
Ascension Seton Medical Center Austin a/k/a Seton
Medical Center
iii
Ascension Seton Northwest
Ascension Seton Williamson
Ascension St. Vincent Anderson
Ascension St. Vincent Kokomo f/k/a St. Joseph
Hospital and Health Center
Ascension Saint Vincent’s East
Ascension Saint Vincent’s Riverside Hospital f/k/a St.
Vincent’s Medical Center
Ascension Saint Vincent’s Southside Hospital f/k/a St.
Luke’s Hospital
Ashley Regional Medical Center f/k/a Ashley Valley
Medical Center
Aspirus Riverview Hospital
Augusta Health a/k/a Augusta Medical Center
Baptist Easley
Baptist Health Floyd a/k/a Floyd Memorial Hospital
Baxter Regional Medical Center
Beaumont Hospital - Farmington Hills f/k/a Botsford
General Hospital
Cape Regional Medical Center
Carle Foundation Hospital
Caromont Regional Medical Center f/k/a Gaston
Memorial Hospital
Carondelet Heart & Vascular Institute f/k/a St. Mary’s
Hospital
Carondelet Saint Joseph’s Hospital
Carondelet Saint Mary’s Hospital
Castleview Hospital
Centegra Hospital – McHenry a/k/a Northern Illinois
Medical Center
Centegra Hospital – Woodstock a/k/a Memorial
Medical Center
Christus Good Shepherd Medical Center
Christus Good Shepherd Medical Center Marshall
Clark Memorial Hospital
Comanche County Memorial Hospital
Community Hospital a/k/a Community Healthcare
System
iv
Community Hospital Anderson
Community Hospital East a/k/a Community Hospitals
of Indiana, Inc.
Community Hospital North
Community Howard Regional Health
Conway Regional Medical Center
Dearborn County Hospital
Dekalb Memorial Hospital
East Alabama Medical Center
Elkhart General Hospital
Fairfield Medical Center
Fayette Regional Health System
Firelands Regional Medical Center – Main Campus
Fitzgibbon Hospital a/k/a John Fitzgibbon Memorial
Hospital
Flushing Hospital Medical Center
Franciscan Health Hammond a/k/a Franciscan Saint
Margaret Health – Hammond Campus
Franciscan Health Indianapolis f/k/a Franciscan Saint
Francis Health – Indianapolis
Franciscan Health Michigan City a/k/a Franciscan St.
Anthony Health – Michigan City
Franciscan Health Olympia Fields Campus a/k/a
Franciscan Alliance St. James Hospital and Health
Center
Franciscan Saint Francis Health - Beech Grove
Campus
Froedtert & Medical College of Wisconsin a/k/a
Froedtert Memorial Lutheran Hospital
Good Samaritan Hospital
Gundersen Lutheran Medical Center
Hancock Regional Hospital
Havasu Regional Medical Center
HCA Florida Putnam Hospital f/k/a Putnam
Community Medical Center
Healthmark Regional Medical Center
Henry Community Health a/k/a Henry County
Memorial Hospital
v
High Point Regional Health
Holland Hospital
Indiana University Health Ball Memorial Hospital
Indiana University Health Bloomington Hospital
Indiana University Health Morgan Hospital
Iredell Memorial Hospital
Jackson Purchase Medical Center
Jamaica Hospital Medical Center
John H. Stroger, Jr. Hospital of Cook County
John T. Mather Memorial Hospital
Johnson Memorial Hospital
Karmanos Cancer Institute
Kent Hospital a/k/a Kent County Memorial Hospital
King’s Daughters’ Hospital & Health Services
La Porte Hospital
Lake Cumberland Regional Hospital
Lakeland Community Hospital
Little Company of Mary Hospital
Livingston Regional Hospital
Logan Memorial Hospital
Lourdes Hospital
Marion General Hospital
Mayo Clinic Health System in Eau Claire a/k/a Eau
Claire Hospital
McLaren Bay Region
McLaren Central Michigan
McLaren Flint
McLaren Lapeer Region
McLaren Macomb
McLaren Oakland
McLaren Port Huron Hospital
Memorial Hospital a/k/a Memorial Hospital of South
Bend
Memorial Hospital of Rhode Island
Memorial Medical Center
Mercy Health Partners – Hackley Campus
Mercy Health Partners – Mercy Campus
vi
Mercy Health Saint Mary’s a/k/a Saint Mary’s Health
Care
Mercy Regional Medical Center a/k/a Ville Platte
Medical Center
Methodist Hospital
Methodist Hospital of Chicago
Methodist Hospitals–Northlake Campus
MHP Medical Center
Minden Medical Center
Mizell Memorial Hospital
Mount Carmel Saint Ann’s a/k/a St. Ann’s Hospital
Mount Carmel West
Mount Saint Mary’s Hospital and Health Center
Mount Sinai Hospital
North Arkansas Regional Medical Center
North Georgia Medical Center
Northwest Medical Center
Northwestern Medicine Kishwaukee Hospital a/k/a
Kishwaukee Community Hospital
Oak Forest Hospital of Cook County
Ohio Valley Medical Center
Opelousas General Hospital–South Campus a/k/a
Doctors Hospital of Opelousas
Palestine Regional Medical Center
Palmetto Health Baptist
Palmetto Health Richland
Parkridge West Hospital a/k/a Grandview Medical
Center
Parkview Regional Hospital
Parkview Regional Medical Center
Pleasant Valley Hospital
Princeton Community Hospital
ProMedica Bay Park Hospital a/k/a Bay Park
Community Hospital
ProMedica Bixby Hospital a/k/a Bixby Medical Center
ProMedica Flower Hospital
ProMedica Monroe Regional Hospital f/k/a Mercy
Memorial Hospital
vii
ProMedica Toledo Hospital
Providence Hospital n/k/a USA Health Providence
Hospital
Providence Hospital
Provident Hospital of Cook County
Raleigh General Hospital
Regional Medical Center of Orangeburg & Calhoun
Counties a/k/a The Regional Medical Center
Reid Hospital
River Parishes Hospital
Riverview Health
RMC Anniston a/k/a Northeast Alabama Regional
Medical Center
Rush-Copley Medical Center a/k/a Copley Memorial
Hospital
Russell Medical Center
Saint Agnes Medical Center
Saint Bernard Hospital and Health Care Center
Saint Catherine Hospital
Saint Francis Hospital
Saint Francis Hospital Muskogee a/k/a Muskogee
Regional Medical Center
Saint John Detroit Riverview Hospital a/k/a St. John
Health
Saint John North Shores Hospital
Saint Joseph Mercy Livingston Hospital
Saint Joseph Mercy Oakland a/k/a St. Joseph Mercy
Hospital
Saint Luke’s Hospital
Saint Mary Medical Center
Saint Mary’s Hospital a/k/a Seton Health System
Saint Mary’s Hospital at Amsterdam a/k/a St. Mary’s
Healthcare
Saint Vincent’s Blount
Saint Vincent’s Medical Center
Saline Memorial Hospital
Schneck Medical Center a/k/a Jackson Co Schneck
Memorial Hospital
viii
Sidney and Lois Eskenazi Hospital f/k/a Wishard
Memorial Hospital
Skokie Hospital a/k/a Rush North Shore Medical
Center
South Shore Hospital
Southern Tennessee Medical Center – Winchester
Southern Tennessee Regional Health System–
Lawrenceburg f/k/a Crockett Hospital
Southern Tennessee Regional Health Care–Pulaski
f/k/a Hillside Hospital
Sovah Health – Danville f/k/a Danville Regional
Medical Center a/k/a Danville Regional Hospital
Sovah Health – Martinsville f/k/a Memorial Hospital
of Martinsville and Henry County
Spectrum Health Butterworth Hospital
St. Bernards Medical Center
Starke Hospital
Stonewall Jackson Memorial Hospital
Sumner Regional Medical Center
Thomas Memorial Hospital
UNC Lenoir Health Care a/k/a Lenoir Hospital
Unity Health White County Medical Center
University Medical Center at Brackenridge a/k/a
Brackenridge Hospital
University of Illinois Medical Center
University of Iowa Hospitals & Clinics
University of Virginia Medical Center
Valley View Medical Center
Vanderbilt University Hospital
Vaughan Regional Medical Center
Virginia Hospital Center
WakeMed Cary Hospital
WakeMed Raleigh Hospital a/k/a WakeMed Raleigh
Campus
Warren Memorial Hospital
Washington Regional Medical Center
Wayne UNC Health Care a/k/a Wayne Memorial
Hospital, Inc.
ix
Western Plains Medical Complex
Willamette Valley Medical Center
Winchester Medical Center
Witham Memorial Hospital
Women & Infants Hospital a/k/a Women & Infants
Hospital of Rhode Island
Wooster Community Hospital
Petitioners were plaintiffs in the district court
and appellants in the court of appeals.
Respondents Baptist Health Medical Center –
Little Rock, Baptist Health Medical Center – North
Little Rock, Baptist Health Medical Center – Hot
Spring County, and Gwinnett Medical Center –
Lawrenceville a/k/a Gwinnett Hospital System were
plaintiffs in the district court and appellants in the
court of appeals.
Respondent Xavier Becerra, Secretary, U.S.
Department of Health & Human Services, was a
defendant in the district court and appellee in the
court of appeals.
x
CORPORATE DISCLOSURE STATEMENT
The following parent companies or publicly held
companies have a 10 percent or greater ownership
interest in the below-identified petitioner entities:
a. Petitioners Andalusia Health, Ashley Regional
Medical Center, Castleview Hospital, Clark Memorial
Hospital, Havasu Regional Medical Center, Jackson
Purchase Medical Center, Lake Cumberland Regional
Hospital, Livingston Regional Hospital, Logan
Memorial Hospital, Memorial Medical Center,
Palestine Regional Medical Center, Parkview
Regional Hospital, Raleigh General Hospital, River
Parishes
Hospital,
Southern
Tennessee–
Lawrenceburg, Southern Tennessee–Winchester,
Southern Tennessee Regional Health Care–Pulaski,
Sovah Health–Danville, Sovah Health–Martinsville,
Sumner Regional Medical Center, Valley View
Medical Center, Vaughan Regional Medical Center,
and Willamette Valley Medical Center:
Apollo Global Management, LLC
b. Petitioners HCA Florida Putnam Hospital and
Parkridge West Hospital:
HCA Healthcare, Inc.
c. Petitioner North Georgia Medical Center:
SunLink Health Systems, Inc.
xi
d. Petitioners La Porte Hospital and Starke
Hospital:
Community Health Systems, Inc.
e. For all other petitioners, there are no parent
companies and no publicly held company owns 10% or
more of the petitioner’s stock.
xii
STATEMENT OF RELATED PROCEEDINGS
This case arises from and is directly related to the
following proceedings:
•
Advocate Christ Medical Center v. Azar, No.
1:17-cv-1519, U.S. District Court for the District of
Columbia. Judgment entered June 8, 2022.
•
Advocate Christ Medical Center v. Becerra,
No. 22-5214, U.S. Court of Appeals for the D.C.
Circuit. Judgment entered Sept. 1, 2023.
There are no additional proceedings in any court
that are directly related to this case.
xiii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDINGS ......................... ii
CORPORATE DISCLOSURE STATEMENT ............. x
STATEMENT OF RELATED PROCEEDINGS .......xii
TABLE OF AUTHORITIES ..................................... xvi
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
RELEVANT
STATUTORY
AND
REGULATORY PROVISIONS ............................. 1
INTRODUCTION ........................................................ 2
STATEMENT OF THE CASE .................................... 3
A. Statutory and Regulatory Background. ......... 3
B. Factual and Procedural Background. ........... 11
REASONS FOR GRANTING THE PETITION........ 13
I.
The Question Presented, Left Open In
Empire, Is Exceptionally Important And
Recurring. ............................................................ 16
A. Accurate Medicare Payments Are
Crucial
for
Hospitals’
Continued
Capacity to Serve Needy Patients. ............... 16
B. Absent Review, the Agency’s Blinkered
Reading of “Entitled” Will Continue to
Thwart Accurate DSH Payments and
Engender Seriatim Challenges. .................... 19
II. The Agency’s Interpretation Contravenes
The Statutory Text And Is Inconsistent
With Empire. ....................................................... 24
xiv
A. The D.C. Circuit’s Decision Cannot Be
Squared with Empire. ................................... 24
B. The D.C. Circuit’s Decision Is Wrong. .......... 28
1. The statutory text rejects a narrow
view of “entitled.” ..................................... 29
2. The D.C. Circuit wrongly disregarded
non-cash benefits provided by the SSI
program. ................................................... 33
III. This Case Presents An Ideal Vehicle To
Resolve The Question Presented. ....................... 36
CONCLUSION .......................................................... 38
APPENDIX
Opinion of the United States Court of Appeals
for the D.C. Circuit, No. 22-5214 (Sept. 1,
2023) .........................................................................1
Opinion of the United States District Court
for the District of Columbia, No. 1:17-cv-1519
(June 8, 2022) ........................................................ 18
Decision of the Administrator, Centers for
Medicare and Medicaid Services, No. 2017D11/2017-D12 (May 30, 2017) ............................... 46
Decision of the Provider Reimbursement
Review Board, No. 2017-D11 (Mar. 27, 2017) ...... 94
Decision of the Provider Reimbursement
Review Board, No. 2017-D12 (Mar. 28, 2017) .... 111
Relevant
Statutory
and
Regulatory
Provisions............................................................. 128
42 U.S.C. § 1395ww(d)(5)(F)(vi) ................... 128
42 U.S.C. § 1381a .......................................... 129
xv
42 U.S.C. § 1382(a), (b), (c), (e)(1)(A)-(B)...... 129
42 U.S.C. § 1382d .......................................... 138
xvi
TABLE OF AUTHORITIES
CASES
Baystate Med. Ctr. v. Leavitt, 545 F. Supp. 2d 20
(D.D.C. 2008) ........................................................... 20
Becerra v. Empire Health Found., 597 U.S. 424
(2022) .................................. i, 4, 5, 8, 9, 10, 19, 24, 25
26, 28, 29, 30, 31, 33
Biden v. Nebraska, 143 S. Ct. 2355 (2023) ................ 31
Bowen v. Galbreath, 485 U.S. 74 (1988) ...................... 5
Brown v. Gardner, 513 U.S. 115 (1994) ..................... 29
Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984)......................................... 12
Empire Health Found. v. Becerra, No. 2:16-cv00209 (E.D. Wa. stayed on remand Nov. 13,
2023) ........................................................................ 36
Metro. Hosp. v. U.S. Dep’t of Health & Hum.
Servs., 712 F.3d 248 (6th Cir. 2013) ....................... 31
Pomona Valley Hosp. Med. Ctr. v. Becerra, 82
F.4th 1252 (D.C. Cir. 2023) .......................... 9, 21, 22
Schweiker v. Wilson, 450 U.S. 221 (1981).................... 5
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145
(2013) ............................................................. 4, 11, 20
Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S.
560 (2012) ................................................................ 29
xvii
STATUTES
28 U.S.C. § 1254 ........................................................... 1
42 U.S.C.
§ 426 ................................................................ 4, 9, 30
§ 1320b-19 ..................................................... 8, 34, 35
§ 1381a ............................................................ 6, 7, 30
§ 1382 .............................................................. 6, 7, 30
§ 1382c ..................................................................... 29
§ 1382d ...................................................... 6, 8, 28, 34
§ 1382e ....................................................................... 9
§ 1382h ...................................................................... 6
§ 1383 ............................................................ 7, 27, 29
§ 1395d .................................................................. 4, 9
§ 1395w-114......................................................... 6, 32
§ 1395y....................................................................... 9
§ 1395oo ................................................................... 11
§ 1395ww ................................................................ i, 9
§ 1396d .................................................................... 32
§ 1396f ..................................................................... 33
§ 1396r-4 .................................................................. 33
Pub. L. No. 108-173, § 951, 117 Stat. 2066, 2427
(2003) ....................................................................... 21
Social Security Amendments of 1972, Pub. L. No.
92-603, § 301, 86 Stat. 1329 ................................. 5, 6
Ticket to Work and Work Incentives
Improvement Act of 1999, Pub. L. No. 106-170,
§ 101, 113 Stat. 1860............................................... 35
xviii
REGULATIONS
20 C.F.R.
§ 411.125 ................................................................. 34
§ 411.155 ................................................................. 34
§ 411.350 ................................................................. 35
§ 416.1320 ................................................................. 7
§ 416.1335 ............................................................... 27
§ 416.2201 ............................................................... 34
§ 416.2214 ................................................................. 8
§ 416.2215 ................................................................. 8
42 C.F.R. § 423.773..................................................... 32
51 Fed. Reg. 31,454 (Sept. 3, 1986) ............................ 10
75 Fed. Reg. 50,042
(Aug. 16, 2010) .................... 10, 11, 20, 21, 22, 25, 36
OTHER AUTHORITIES
America’s Essential Hospitals, Essential Data
2023 (Oct. 2023) ...................................................... 16
Ctrs. for Disease Control, About Rural Health
(Nov. 28, 2023) ........................................................ 17
Ctrs. for Medicare & Medicaid Servs., Medicare
Monthly Enrollment (Aug. 2023) .............................. 4
Ayla Ellison, State-by-State Breakdown of 130
Rural Hospital Closures, Becker’s Hosp. CFO
Rep. (June 8, 2020) ................................................. 17
xix
Lukas K. Gaffney & Kenneth A. Michelson,
Analysis of Hospital Operating Margins and
Provision of Safety Net Services, JAMA
Network Open (Apr. 18, 2023).......................... 17, 18
Judith Garber, What Happens When Safety Net
Hospitals Close?, Lown Inst. (May 4, 2023) ..... 17, 18
Gina A. Livermore et al., Ticket to Work
Participant Characteristics and Outcomes
Under the Revised Regulations, Ctr. for
Studying Disability Pol’y (Sept. 24, 2012) ............. 35
Shannon McConville, Mounting Concerns about
Safety Net Hospital Closures, Pub. Pol’y Inst.
Cal. (June 12, 2023) ................................................ 18
Off. of the Inspector Gen. Soc. Sec. Admin., Audit
Rep. No. A-01-10-10177, Disability Insurance
and Supplemental Security Income Claims
Allowed But Not Paid (June 20, 2011) ................... 20
Part D Manual § 70.5.2 .............................................. 32
S. Rep. No. 92-1230 (1972) ................................... 5, 6, 7
Soc. Security Admin., Annual Statistical Report
2021 ............................................................... 7, 27, 33
Soc. Security Admin., Medicaid Information .............. 6
Soc. Security Admin., VR Reimbursement Claims
Processing .................................................................. 8
xx
Brian Thiede et al., 6 Charts that Illustrate the
Divide Between Rural and Urban America,
PBS NewsHour (Mar. 17, 2017) ............................. 17
U.S. Gov’t Accountability Off., GAO-21-93, Rural
Hospital Closures: Affected Residents Had
Reduced Access to Health Care Services (2020) .... 18
PETITION FOR A WRIT OF CERTIORARI
Petitioners Advocate Christ Medical Center and
more than 200 other Medicare-participating hospitals
respectfully petition for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the D.C. Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. 1-17) is
reported at 80 F.4th 346. The opinion of the district
court (App. 18-45) is not reported but is available at
2022 WL 2064830. The decision of the Administrator
of the Centers for Medicare and Medicaid Services
(App. 46-93) is not reported. The decisions of the
Provider Reimbursement Review Board (App. 94-127)
are not reported.
JURISDICTION
The judgment of the court of appeals was entered
on September 1, 2023. No rehearing petition was filed.
Chief Justice Roberts, Circuit Justice for the United
States Court of Appeals for the D.C. Circuit, extended
the time to file a petition for writ of certiorari to and
including December 29, 2023. This Court’s jurisdiction
rests on 28 U.S.C. § 1254(1).
RELEVANT STATUTORY AND REGULATORY
PROVISIONS
Pertinent statutory and regulatory provisions are
reproduced in the appendix (App. 128-41). See 42
U.S.C. §§ 1381a; 1382(a),(b),(c),(e)(1)(A)-(B); 1382d;
1395ww(d)(5)(F)(vi).
(1)
2
INTRODUCTION
Petitioners are 209 hospitals in 32 States. Many
of them are safety net or rural hospitals facing dire
financial instability. They depend upon fair and
accurate compensation to keep their doors open and
maintain capacity to provide needed services to the
Nation’s most vulnerable patients.
The Secretary’s internally inconsistent reading of
“entitled to benefits”—within the same sentence of the
same statute—deprives these front-line hospitals of
the compensation Congress intended for serving a
disproportionate share of low-income patients. The
Court addressed part of this issue in its Empire
decision; now is the time to answer the rest of the
question and ensure consistency in implementing a
core federal program.
After years of counting patients as “entitled” to a
benefit only when that particular benefit was paid
(whether the benefit was Medicare part A hospital
coverage or supplemental security income (SSI)
benefits), the agency flip-flopped its position—but only
for Medicare part A, where the abrupt change reduced
Medicare payments. Empire confirmed the agency’s
new position—entitled to benefits means eligible for
benefits, whether or not paid—as the best reading of
the statutory phrase “entitled to benefits.” But Empire
left open the implications of that interpretation for SSI
benefits. For SSI benefits, where a corresponding
change would increase payments to hospitals, the
agency continues to consider a patient “entitled” only
if she actually received an SSI cash payment for the
month of hospitalization.
3
That internal inconsistency cannot be squared
with the Court’s understanding of the statute in
Empire or with the statutory text. Review is urgently
needed now. Left standing, the agency’s cake-and-eatit-too position threatens the financial viability of
safety net hospitals and impairs their ability to treat
low-income elderly and disabled patients and serve
their broader communities.
Conclusively resolving the question presented is
also essential to forestall continued litigation arising
from the agency’s inability to otherwise get payments
right. Absent this Court’s review, the host of practical
problems created by the agency’s internally
inconsistent statutory interpretation will engender
never-ending calculation-by-calculation challenges,
none of which will solve the fundamental statutory
interpretation
problem.
Only
a
consistent
interpretation of “entitled to benefits” can remain true
to the statutory scheme and yield the clear lines that
Empire recognized were essential for this critical
health care program to work. To vindicate
congressional intent, hospital compensation must
hinge on a stable measure of a patient’s statutory
status, not on the agency-created vicissitudes of
month-by-month payments.
STATEMENT OF THE CASE
A. Statutory and Regulatory Background.
Two federal programs figure in calculating the
hospital reimbursements at issue here, Medicare and
Supplemental Security Income (SSI).
4
1. The Medicare program “provides Governmentfunded health insurance to” a large and growing
number—over 66 million—of “elderly or disabled
Americans.” Becerra v. Empire Health Found., 597
U.S. 424, 428 (2022); Ctrs. for Medicare & Medicaid
Servs., Medicare Monthly Enrollment (Aug. 2023),
https://tinyurl.com/2dntzyb9. “Part A” of Medicare
covers inpatient hospital care. Empire, 597 U.S. at
428. Individuals 65 and older or those who have been
entitled to federal disability benefits for 24 months are
“entitled” to Medicare part A benefits. 42 U.S.C.
§ 426(a)-(b). That “‘entitlement’ coexists with
limitations on payment” of benefits. Empire, 597 U.S.
at 425. For example, Medicare part A generally will
not pay for more than a 90-day hospital stay for a
single spell of illness. Id. at 426; see 42 U.S.C.
§ 1395d(a)(1).
For payments to hospitals, Medicare starts with
“a fixed rate for treating each Medicare patient, …
regardless of the hospital’s actual costs.” Empire, 597
U.S. at 429. But Congress required an adjustment to
this fixed rate for certain hospitals, because “hospitals
with an unusually high percentage of low-income
patients generally have higher per-patient costs.”
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 150
(2013). Through this Disproportionate Share Hospital
(DSH) adjustment, the Medicare “reimbursement
amount is adjusted upward for hospitals that serve a
disproportionate share of low-income patients.” Id. at
149-50.
To “calculate a hospital’s DSH adjustment, [the
agency] adds together two statutorily described
fractions,” usually called the Medicare and Medicaid
fractions. Empire, 597 U.S. at 429. The fractions’ key
5
inputs include the number of days the hospital
provided inpatient care to patients who participate in
three different government programs: Medicare part
A, Medicaid, and SSI. Each program is governed by a
different title of the Social Security Act: title XVIII
(Medicare part A); title XIX (Medicaid); and title XVI
(SSI).
The Medicare fraction “represents the proportion
of a hospital’s Medicare patients who have low
incomes, as identified by their entitlement to
supplementary security income (SSI) benefits.” Id. at
429-30. The Medicaid fraction reflects the share of a
hospital’s non-Medicare patients who “have low
incomes, as identified by their eligibility for Medicaid.”
Id. at 430.
This case involves the Medicare fraction, which
turns on the number of patients who are entitled to
both Medicare part A and SSI, and specifically when a
patient becomes “entitled” to SSI benefits.
2. SSI is “a ‘welfare program’ providing benefits
to ‘financially needy individuals’ who (like Medicare
patients generally) are over 65 or disabled.” Id.
(quoting Bowen v. Galbreath, 485 U.S. 74, 75 (1988)).
The SSI program was created “[t]o assist those
who cannot work because of age, blindness, or
disability.” Schweiker v. Wilson, 450 U.S. 221, 223
(1981) (quoting S. Rep. No. 92-1230, at 4 (1972))
(alteration in original). From its inception, the
program has included multiple benefits; not only
income support, but also services to help people with
disabilities return to work. See Social Security
Amendments of 1972, Pub. L. No. 92-603, § 301, 86
Stat. 1329, 1474. Congress recognized that “if the
6
opportunity for rehabilitation for suitable work were
available to [people with disabilities], they could
become self-supporting.” S. Rep. No. 92-1230, at 390.
SSI benefits thus include not only cash assistance
payments, 42 U.S.C. §§ 1382(b), 1382h, but also noncash benefits like “[r]ehabilitation services for blind
and disabled individuals,” id. § 1382d. SSI
beneficiaries are also entitled to medical benefits by
virtue of qualifying for SSI. In most States, SSI
beneficiaries are automatically eligible for Medicaid.
See Soc. Security Admin., Medicaid Information,
https://tinyurl.com/239zj99n. Individuals who are
“recipients of [SSI] benefits under subchapter XVI” are
also eligible for a subsidy that covers the cost of
prescription drug plan premiums under Medicare part
D. 42 U.S.C. § 1395w-114(a)(3)(B)(v).
SSI’s “[b]asic eligibility for benefits” under title
XVI includes “[e]very aged, blind, or disabled
individual who is determined … to be eligible on the
basis of his income and resources.” Social Security Act
§ 1602, 86 Stat. at 1465 (codified at 42 U.S.C. § 1381a
with title “Basic entitlement to benefits”). Each such
person “shall, in accordance with and subject to the
provisions of this [title], be paid benefits by the
[Commissioner of Social Security].” Id.
The statute further specifies that “[e]ach aged,
blind, or disabled individual” whose annual income
and resources meet specified criteria “shall be an
eligible individual for purposes of [title XVI].” 42
U.S.C. § 1382(a). Eligibility for cash payments is
determined monthly based on the individual’s
“income, resources, and other relevant characteristics
in such month.” Id. § 1382(c).
7
Because payment of SSI benefits is “subject to the
provisions of this [title XVI],” id. § 1381a, an “eligible
individual,” id. § 1382(a), will not receive a cash
payment in some months for various reasons carved
out by Congress or the Social Security Administration.
For example, no payment is due the first month a
person is eligible. Id. § 1382(c)(7). In addition, “eligible
individuals” residing in certain facilities (like some
nursing homes) have their payment amount reduced
to $0 if their income exceeds $30 (on the theory that
the nursing home will meet their basic subsistence
needs). Id. § 1382(e)(1)(B); S. Rep. No. 92-1230, at 386.
Other reasons, ranging from the mundane to the
more substantive, could prevent an “eligible
individual” from receiving a cash payment in any
given month. If, for example, paying an individual
directly “would cause substantial harm,” the
Commissioner may “defer … or suspend … direct
payment” until a “representative payee” is identified.
42 U.S.C. § 1383(a)(2)(B)(viii). Payment may also be
suspended for a slew of other administrative reasons,
including (quite commonly) lack of a current mailing
address. See 20 C.F.R. § 416.1320(a); see also C.A.J.A.
153 (describing payment suspensions for returned
checks or refusal to accept direct deposit).
“Whereabouts unknown” ranked as the second most
common reason for suspension of SSI payments in
2021. Soc. Security Admin., Annual Statistical Report
2021, tbl. 76, https://tinyurl.com/y4s7yxv8 (“2021
Statistical Report”).
The cash payment benefit may also be suspended
for failure to meet income and resource criteria in a
given month. Even then, the individual remains
enrolled in SSI and eligible for other SSI benefits, as
8
Congress recognized the need for continued support as
income fluctuates. See infra at 27-28. Congress, for
example, required continued payment of SSI
vocational rehabilitation benefits for 12 months when
payment of cash benefits is suspended for reasons
other than cessation of disability or blindness. 42
U.S.C. § 1382d(e)(2); 20 C.F.R. § 416.2215.
Vocational rehabilitation services are provided to
SSI beneficiaries by state agencies or private
organizations and reimbursed through either the
Ticket to Work model, 42 U.S.C. § 1320b-19, or (for
state agencies) the traditional model, id. § 1382d(d)(e). These services include physical rehabilitation,
assistive technology, vocational training, and a host of
other “goods and services” that assist with
employment. See 20 C.F.R. § 416.2214(b). Such
benefits are far from de minimis. In 2022, an average
of over $13,000 in goods and services was provided to
each SSI beneficiary who achieved substantial gainful
employment objectives. See 42 U.S.C. § 1382d(d); Soc.
Security Admin., VR Reimbursement Claims
Processing, https://tinyurl.com/mryr45e7.
3. Turning back to the Medicare DSH formula,
recall that it consists of two fractions “designed to
capture two different low-income populations that a
hospital serves.” Empire, 597 U.S. at 429. The
Medicare fraction, at issue here, “is a measure of a
hospital’s senior (or disabled) low-income population.”
Id. at 430. Its calculation turns on counting days for
patients who are “entitled” to Medicare part A and SSI
benefits. The numerator includes days for patients
who are entitled to both Medicare part A and SSI
benefits, and the denominator is days for all Medicare
part A patients. Id.
9
Under the statute, the key measure is the
number of “days … [for] patients who (for such days)
were entitled to benefits under part A of [Medicare]
and were entitled to [SSI] benefits … under [title]
XVI.” 42 U.S.C. § 1395ww(d)(5)(F)(vi)(I). The statute
excludes from the SSI-entitled category any patients
whose only benefit under title XVI is “State
supplementation.” Id.1
a. Since enactment of the DSH statute in 1986, a
key (and oft-litigated) question has been who counts
as “eligible” for or “entitled” to the different benefits
within the formula. The agency has not been
consistent in its understanding of this phrase, across
time, or within the same sentence.
The Medicare and SSI programs both specify
eligibility criteria alongside constraints on when
benefits are paid. For Medicare part A, individuals
qualify once they turn age 65 or if they have received
disability benefits for 24 months. 42 U.S.C. § 426(a)(b). Medicare nonetheless may not pay for qualifying
patients’ hospital stays due to statutory criteria
limiting Medicare payments. See Empire, 597 U.S. at
432. For example, Medicare usually will not pay for a
hospital stay if it is covered by other insurance, or for
more than 90 days of hospitalization for a single “spell
of illness.” 42 U.S.C. §§ 1395d, 1395y(b)(2)(A).
When first implementing the DSH statute, the
agency considered the question of whether patients
1
“State supplementation” happens when States provide
“further assistance to needy residents,” including payments to
those whose incomes exceed the threshold for federal SSI cash
benefits. See Pomona Valley Hosp. Med. Ctr. v. Becerra, 82 F.4th
1252, 1254 (D.C. Cir. 2023); 42 U.S.C. § 1382e.
10
who qualify for Medicare are “entitled to benefits
under part A of [Medicare]” on days that Medicare part
A does not pay for their hospital care. The agency
initially said no; a patient was entitled to Medicare
part A benefits only on days that Medicare part A
actually paid for their hospital care. 51 Fed. Reg.
31,454, 31,460-61 (Sept. 3, 1986). The agency applied
the same interpretation to “entitled to [SSI] benefits.”
See id. at 31,459.
In 2004, however, the agency changed its
interpretation of “entitled”—but just for Medicare part
A benefits—concluding that a patient is so “entitled” if
“he qualifies for the Medicare program,” “even when
Medicare is not paying for part or all of his hospital
stay.” Empire, 597 U.S. at 428. This change generally
reduced Medicare payments to hospitals. Id. at 433.
b. Changing its interpretation of “entitled” to SSI
benefits to match would have increased DSH
payments. The agency declined to make this parallel
change. Thus, for SSI benefits (only), the agency
continues to count a patient as “entitled” to benefits
only if a patient received an SSI cash payment for the
month of their hospital stay. 75 Fed. Reg. 50,042,
50,280-281 (Aug. 16, 2010); see App. 2 (The agency
“understands this population to include only patients
receiving cash payments during the month in
question.”). Focusing only on the cash assistance paid
to some SSI beneficiaries—without mention of noncash SSI benefits—the agency explained that
“eligibility for SSI benefits does not automatically
mean that an individual will receive SSI benefits for a
particular month.” 75 Fed. Reg. at 50,280. Absent
11
receipt of a cash benefit payment, the agency does not
consider an SSI-eligible person to be SSI-entitled. Id.2
The agency thus continues to exclude from its
count of SSI-entitled patients several categories of
people who are “entitled” in the Medicare
understanding of that term (as affirmed in Empire).
These agency-crafted carve-outs exclude patients who
meet eligibility criteria for SSI cash payments but for
whom payment is not due or has been suspended for a
host of variable administrative reasons. They also
exclude patients who meet annual income eligibility
criteria and are eligible for non-cash SSI benefits (like
vocational rehabilitation services) but to whom cash
payments are not due for the relevant month. See 75
Fed. Reg. at 50,280-281.
B. Factual and Procedural Background.
1. Hospitals dissatisfied with their Medicare
reimbursement may file an appeal with the Provider
Reimbursement Review Board. See Auburn Reg’l Med.
Ctr., 568 U.S. at 148; 42 U.S.C. § 1395oo(a).
Petitioners, 209 hospitals located across the country,
2 Excluded from the agency’s understanding of those “entitled
to SSI benefits” are even those who did receive SSI payments for
the hospital month in question, but just didn’t receive them in
time. The agency calculates the Medicare fraction using a report
from the Social Security Administration that post-dates the end
of the fiscal year. See 75 Fed. Reg. at 50,283. Because of that
timing, the fraction “account[s] for … the lifting of SSI payment
suspensions through” the date of the report. Id. at 50,282. The
agency does not, however, count as “entitled” any SSI-eligible
patients who have not yet received retroactive payment by that
time—even if payment is due but suspended for an
administrative reason.
12
including safety net hospitals providing care in
historically underserved areas, filed such an appeal
challenging the calculation of their Medicare fractions
for 2006 to 2009. App. 18; 26.
Petitioners produced evidence that the agency
had substantially undercounted the number of
patients they treated who were entitled to SSI benefits
and therefore under-reimbursed them by hundreds of
millions of dollars. See App. 106-07; 123-24. The
agency violated the Medicare Act, petitioners argued,
by limiting the count of SSI-entitled patients to only
those who received SSI cash payments for the month
of their hospital stay, as opposed to including all those
meeting basic SSI program eligibility criteria (the
standard used for Medicare Part A entitlement). App.
105; 122. The Board held it lacked authority to grant
relief on a challenge to the agency’s methodology. App.
110; 126-27.
The Administrator of the Centers for Medicare
and Medicaid Services reviewed the Board’s decision
and rejected the hospitals’ challenge to the agency’s
interpretation of “entitled to [SSI] benefits.” App. 4693.
2. The hospitals then sought review of the
Administrator’s decision in district court. Holding that
the phrase “entitled to [SSI] benefits” was ambiguous,
App. 32-37, the district court deferred to the agency’s
interpretation under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984),
App. 37-40.
The D.C. Circuit affirmed. The court held that the
only SSI benefits under title XVI were “cash payments
for needy individuals who are aged, blind, or disabled,”
13
and therefore the agency reasonably limited the SSIentitled category to patients who received cash
payments. App. 8-10. The court concluded that noncash benefits for SSI beneficiaries (like vocational
rehabilitation services) were irrelevant because they
were “housed” outside of title XVI (at least in part).
App. 10-11.
The court discounted the relevance of Empire and
its interpretation of “entitled to benefits” for Medicare
part A based on two distinctions it perceived between
Medicare part A and SSI: First, “Part A benefits
extend well beyond payment for specific services at
specific times.” App. 13. Second, the court believed
that individuals gain and lose SSI eligibility more
readily than they do Medicare. App. 13. The court thus
“agree[d] that the Secretary offered the correct
interpretation of the Medicare fraction, … without
considering any question of Chevron deference.” App.
14.3
REASONS FOR GRANTING THE PETITION
The Court’s decision in Empire makes three
points about the meaning of “entitled to benefits” for
Medicare part A benefits. All three hold equally true
for SSI benefits.
First, counting all patients who meet program
eligibility criteria as “entitled” furthers the purpose of
3 The court also rejected petitioner hospitals’ claims that “even
under [the agency’s] own construction of the Medicare Act, its
matching process was arbitrary and capricious,” App. 14, and
denied “an order compelling [the agency] to provide” certain “data
to verify or challenge [its] calculation of their respective Medicare
fractions,” App. 15. Petitioners do not renew those claims here.
14
the Medicare DSH program, by ensuring that lowincome patients are not excluded due to some
administrative happenstance of program payment.
Yet the agency’s approach excludes even patients who
meet SSI income and resource tests for cash payment
in a given month but did not receive a payment for
some administrative reason like an invalid mailing
address—as well as other patients who meet program
eligibility criteria.
Second, defining entitlement by statutory
eligibility criteria ensures that the DSH program’s
structure is guarded by clear congressionally crafted
lines, not fuzzy agency-created ones. The latter has
patients ping-ponging into and out of fractions when
Social Security changes the payment rules. Just as
focusing on Medicare eligibility criteria, rather than
payment, maintains the static structure essential for
the DSH program to function, focusing on whether a
patient meets SSI program eligibility criteria provides
needed stability, versus tracking the vagaries of
payment receipt from month to month. Statutory
eligibility criteria also better serve the statutory
purpose of measuring the low-income population that
will often present complications that make their
hospital care more costly. Such complications don’t
vanish just because Social Security suspended their
cash payment one month.
Third, Empire also recognized that a person can
meet statutory eligibility criteria for benefits—and
thus be entitled—even when limitations may apply for
payment of certain benefits. Despite the D.C. Circuit’s
attempt to distinguish the programs, SSI benefits
work much the same as Medicare benefits in this
regard. A person can have applied, and have been
15
determined to be eligible for SSI, yet still not receive a
cash payment in a given month for many different
reasons. And, just as a Medicare patient might be able
to receive skilled nursing care even when Medicare no
longer pays for inpatient treatment, Congress
designed the SSI program to provide non-cash benefits
that help SSI beneficiaries transition away from cash
assistance. SSI benefits encompass more than cash
payments.
The logic underlying Empire’s interpretation of
“entitled to benefits under [Medicare] part A” thus
applies with equal force to “entitled to [SSI] benefits”
within the same sentence. Review is needed now of the
agency’s contrary view, endorsed by the D.C. Circuit.
The question is of exceptional importance to
hospitals, especially safety net hospitals that treat the
lion’s share of the poorest patients. Many such
hospitals are already on the verge of closing their
doors. Shortchanging them on DSH payments by
undercounting SSI-entitled patients has an outsized
impact on the Nation’s most financially stressed
hospitals.
No meaningful path exists to solve the problem,
except to fix the agency’s inconsistent statutory
approach by answering this question that was
expressly reserved in Empire. Otherwise, atextual
insistence on equating SSI entitlement to the
happenstance of payment requires the agency, every
year, to conduct an error-prone count using highly
variable data about payment status.
There is no need to wait and every reason to
resolve the question now. Case after case shows that
the agency can’t get it right. Absent review, hospitals
16
will continue to challenge the arbitrariness of the
agency’s process. But even if successful, such ad hoc
cases cannot solve the systematic problem. All they
can do is embroil the agency and the courts in repeated
litigation. Without review, such cases will keep
coming, given the insurmountable timing and data
obstacles created by the agency’s payment-required
approach and its lack of transparency regarding the
data underlying its decision-making.
Granting review here would obviate the need for
such endless litigation and restore the clean statutory
line that Congress crafted: counting all “eligible
individual[s]” under the SSI statute. This case
presents an ideal vehicle to address the question,
which is crucially important for safety net hospitals
and the vulnerable patients they serve.
I.
The Question Presented, Left Open In
Empire, Is Exceptionally Important And
Recurring.
A. Accurate
Medicare
Payments
Are
Crucial
for
Hospitals’
Continued
Capacity to Serve Needy Patients.
Accurate implementation of the Medicare DSH
program is essential. Undercounting the most
vulnerable patients—who are the costliest to treat, the
raison d’etre of the DSH program—poses a survival
threat to hospitals that serve low-income
communities.
Safety net hospitals face negative operating
margins and significant financial instability. See
America’s Essential Hospitals, Essential Data 2023, at
17
13
(Oct.
2023),
https://tinyurl.com/bdcpuhmk
(reporting operating margin of -8.6% in 2021 for
member safety net hospitals, versus -1.4% for all acute
care hospitals). Unsurprisingly, financial insolvency is
a major driver of hospital closures. Lukas K. Gaffney
& Kenneth A. Michelson, Analysis of Hospital
Operating Margins and Provision of Safety Net
Services, JAMA Network Open, at 9 (Apr. 18, 2023),
https://tinyurl.com/4e3wdtxr. Hundreds of hospitals
have either closed in the past decade or are at risk of
closing, especially in rural areas, where the population
tends to be older, sicker, poorer, and more likely to be
disabled. See Ctrs. for Disease Control, About Rural
Health
(Nov.
28,
2023),
https://tinyurl.com/mjwmb9aw; Brian Thiede et al., 6
Charts that Illustrate the Divide Between Rural and
Urban America, PBS NewsHour (Mar. 17, 2017),
https://tinyurl.com/44hszwu7. At least 130 rural
hospitals closed between 2010 and June of 2020. See
Ayla Ellison, State-by-State Breakdown of 130 Rural
Hospital Closures, Becker’s Hosp. CFO Rep. (June 8,
2020), https://tinyurl.com/yy439yyv.
But this is not just a rural problem. Hospitals “in
urban areas that serve a disproportionate amount of
uninsured or publicly insured patients are in trouble
too.” Judith Garber, What Happens When Safety Net
Hospitals Close?, Lown Inst. (May 4, 2023),
https://tinyurl.com/mrbs986x
(describing
several
recent closures in major urban areas).
Because both safety net hospitals and the SSI
program, by definition, serve the very poor, the
meaning of SSI-entitlement (and the importance of
accurately capturing the magnitude of the costs of
serving vulnerable patients) is especially important
18
for the hospitals that are the most financially stressed.
See Gaffney & Michelson, supra, at 4 & tbl. 2.
By undercompensating hospitals for the added
costs of providing care to low-income patients, the
agency’s artificially constrained interpretation of
“entitled to [SSI] benefits” magnifies the financial
strain on these safety net hospitals. This upside-down
result contravenes Congress’s intent in providing the
DSH adjustment, which was to ease the financial
burden of providing such care. For the years in
question,
Petitioners
estimate
the
agency’s
parsimonious interpretation of “entitled to [SSI]
benefits” reduced hospitals’ DSH payments by
approximately $1.5 billion annually nationwide.
The neediest patients pay the price, traveling
farther and waiting longer for care, if they can obtain
it at all. See U.S. Gov’t Accountability Off., GAO-2193, Rural Hospital Closures: Affected Residents Had
Reduced Access to Health Care Services (2020),
https://tinyurl.com/2s442zt9 (rural hospital closures
increased distance to care); Garber, supra (describing
how urban closures result in longer emergency wait
times at nearby hospitals).
Even when hospitals manage to keep their doors
open, funding shortfalls require them to curtail crucial
services. See, e.g., Shannon McConville, Mounting
Concerns about Safety Net Hospital Closures, Pub.
Pol’y
Inst.
Cal.
(June
12,
2023),
http://tinyurl.com/3nvt36wn
(describing
“severe
service cuts” at several California safety net
hospitals). By reducing compensation to hospitals
already operating on the brink of insolvency,
improperly suppressed DSH payments leave patients
served by safety net hospitals in peril.
19
B. Absent Review, the Agency’s Blinkered
Reading of “Entitled” Will Continue to
Thwart Accurate DSH Payments and
Engender Seriatim Challenges.
Even if implemented with perfect accuracy, the
validity of the agency’s payment-required approach
would be a crucially important question, because the
agency’s rule systematically undercounts low-income
Medicare patients. But the negative impact of the
agency’s (non-)statutory approach is even worse—and
the importance of the question presented all the
greater—because
the
agency’s
approach
is
unworkable.
Absent review of the statutory question
presented, the agency’s decision to use a receipt-ofSSI-payment proxy—in lieu of the statutory SSIeligibility bright line that Congress intended—will
continue to generate flawed DSH payments. As the
Court recognized in Empire, linking entitlement to
payments, rather than eligibility criteria, “result[s] in
patients ping-ponging back and forth” between the
DSH fraction components based on “happenstance.”
597 U.S. at 443. The agency cannot accurately account
for that sort of happenstance in the SSI program. And
the agency’s inevitable errors will generate repeated
calculation-specific challenges by hospitals.
The Court should grant review to pretermit this
wave of litigation by restoring Congress’s clear and
workable SSI-eligibility line.
1. The agency’s atextual and internallyinconsistent-within-the-same-sentence choice to tie
SSI entitlement to receipt of an SSI payment makes
the result highly dependent on when and how the
20
agency calculates the Medicare fraction. The agency
calculates the fraction by “matching … Medicare
billing records to individual SSI records.” Baystate
Med. Ctr. v. Leavitt, 545 F. Supp. 2d 20, 23 (D.D.C.
2008). This “matching” process creates a series of
practical difficulties.
SSI-eligible patients may not receive cash
payments until well after their hospital stays are over.
See id. at 42. And the agency only counts patients who
have received an SSI payment as of the match date—
15 months after the close of each federal fiscal year. 75
Fed. Reg. at 50,282; see also supra note 2. The agency’s
cabined reading of “entitled” means SSI-eligible
patients are counted (or not) based on administrative
happenstance, like when a Social Security field office
obtains a valid mailing address or finally makes a
retroactive payment for allowed benefits, which can
take far longer than 15 months. See Off. of the
Inspector Gen. Soc. Sec. Admin., Audit Rep. No. A-0110-10177, Disability Insurance and Supplemental
Security Income Claims Allowed But Not Paid, at 6
(June 20, 2011), https://tinyurl.com/4fcpc2dh (in cases
with errors, recipients waited 24 months, on average,
for retroactive payment after agency decided to allow
benefits). Given that payments are often suspended
even for individuals who are undisputedly entitled to
cash payments, refusing to count patients unless and
until administrative suspensions are resolved puts far
too much weight on a match process that has proved it
cannot bear it.
After a court ruled that the agency had “us[ed] a
flawed process” that “caused a systematic
undercalculation of the disproportionate share
adjustment” for decades, Auburn Reg’l, 568 U.S. at
21
151, the agency changed the process, see 75 Fed. Reg.
at 50,277-84. Petitioners do not renew here their
claims that the process remains arbitrary. See App. 14.
But even this purportedly better process can’t fix the
fundamental problem of hinging SSI entitlement on
payment, because there is no easy way to get the
payment count right. On the other hand, counting all
patients who meet basic SSI program eligibility
criteria would use a metric that—besides being the
line chosen by Congress—has the added benefit of
being much less variable and subject to latency.
2. Absent this Court’s review of the threshold
question of whether the agency should even be in the
SSI-payment-tracking business, scores of calculationspecific challenges are waiting in the wings—and will
continue to arise. And there is no realistic possibility
that these case-by-case challenges will fix the system,
because they are hampered by the agency’s refusal to
provide hospitals the necessary data.
Recognizing that accurate DSH payments are
essential for hospitals, Congress tried to provide
hospitals with tools to help check the agency’s work.
Specifically, since 2003, Congress has required the
agency to provide hospitals the “data necessary” for
the hospital to “compute the number of patient days”
used in its Medicare fraction. See Pub. L. No. 108-173,
§ 951, 117 Stat. 2066, 2427 (2003). In practice,
however, compliance has fallen short of the data
mandate’s promise.
The agency only “tells the hospital which of its
patient days … have been matched to patients entitled
to SSI benefits” (within the agency’s narrow
interpretation of “entitled”). Pomona, 82 F.4th at 1255.
Despite the statutory data mandate, 117 Stat. at 2427,
22
the agency only requests from Social Security the
identifying information for patients assigned three
codes purportedly denoting actual receipt of payment
and does not request or provide to hospitals the codes
that indicate any patient’s SSI eligibility or payment
status. App. 6 & n.1; 75 Fed. Reg. at 50,276.
It is therefore near impossible for hospitals to
cross-check the agency’s calculations. But whenever
hospitals have been able to peek behind the curtain,
even in part, widespread problems are revealed.
By using data for state benefit programs that
piggyback on SSI eligibility, hospitals have been able
to show that the agency isn’t coming close to getting
payments right, even under its own approach. In one
case, a hospital produced unrebutted evidence that the
agency’s “matching process missed thousands of
Medicare patient days attributable to patients who
qualified for SSI benefits,” reducing DSH payments for
that single hospital by about $3 million over the course
of three years. See Pomona, 82 F.4th at 1256, 1259.
Before the Board, Petitioners similarly produced
evidence of patients they treated whose Medicaid
eligibility codes indicated they were eligible for
Medicaid due to their SSI eligibility, but who were not
counted as SSI-entitled. App. 106-07; 123-24. For one
hospital, the data showed that in fiscal year 2008,
inpatient days for SSI-entitled Medicare patients were
up to seven times higher than the agency’s count.
C.A.J.A. 318. An analysis of Social Security’s public
use files indicates that for the hospitals and fiscal
years before the Court, the agency undercounted SSI
days by an average of about 30%, resulting in a 17%
cut in DSH payments, or over $300 million.
23
And these cases are just the tip of the iceberg. In
total, Petitioners’ counsel alone represents about 460
hospitals with challenges related to these issues
covering approximately 2000 fiscal years, including
nine cases stayed in district court (D.D.C.) pending the
outcome here, and another 129 cases backlogged at the
Provider Reimbursement Review Board.4 Analysis of
public use files suggests a cumulative reduction in
DSH payments to these hospitals of approximately
15% from 2006-2020.
Absent review, these substantial underpayments
not only threaten the survival of hospitals serving the
neediest patients but will generate hundreds of
calculation-specific challenges to the agency’s errors.
These systematic undercounts are the result of the
agency’s overcomplicated methodology that wrongly
substitutes payment of cash benefits—a much
narrower, more variable and difficult to track
criterion—for “entitlement” to SSI benefits as
Congress required. The agency’s inability to
accurately implement its (wrong) statutory choice—a
problem that cannot meaningfully be solved in
calculation-by-calculation litigation—underscores the
The stayed cases include: Andalusia Health v. Azar, No. 18-cv01756-TSC; Advocate Christ Med. Ctr. v. Becerra, No. 20-cv00199-TSC; Community Hosp. E. v. Azar, No. 20-cv-00891-TSC;
Christus Good Shepherd Med. Ctr. Longview v. Azar, No. 20-cv01413-TSC; Aultman Hosp. v. Cochran, No. 21-cv-00332-TSC;
Advocate Christ Med. Ctr., No. 21-cv-02148-TSC; Ascension Saint
Thomas Highlands Hosp. v. Becerra, No. 21-cv-02453-TSC;
Baxter Reg’l Med. Ctr. v. Becerra, No. 21-cv-03091-TSC; Anderson
Hosp. v. Becerra, No. 22-cv-00219-TSC.
4
24
urgent need for review of the agency’s internally
inconsistent reading of “entitled to benefits.”
II.
The Agency’s Interpretation Contravenes
The Statutory Text And Is Inconsistent With
Empire.
Surveying the Medicare Act, Empire concluded
that “entitled to benefits” under Medicare part A
means qualifying for the program, with entitlement to
payment under certain conditions. 597 U.S. at 434-37.
SSI fundamentally works the same way: a person is an
“eligible individual” if they meet certain criteria, and
that eligibility entitles them to cash payments under
certain conditions. The only reading of “entitled to
benefits” that is consistent with Empire’s
understanding of the DSH statute—and harmonizes
the two uses of the phrase within the same sentence—
is thus the Medicare reading: A person is “entitled to
[SSI] benefits under [title] XVI” if they meet the
eligibility criteria for title XVI benefits, regardless of
whether a cash payment is due (much less received)
for the month of their hospital stay.
The D.C. Circuit’s endorsement of the agency’s
approach—which excludes individuals who meet SSIeligibility criteria during their hospital stays—is
inconsistent with both this Court’s precedent and the
statutory text. If left standing, hospitals and the
communities they serve will pay the price.
A. The D.C. Circuit’s Decision Cannot Be
Squared with Empire.
The D.C. Circuit’s endorsement of the agency’s
narrow construction of “entitled to [SSI] benefits” flies
25
in the face of Empire’s analysis of the structure and
purpose of the DSH statute.
1. As Empire explains, the DSH formula’s twofraction approach creates a “two-population structure”
whereby a “low-income Medicare patient always
counts in the Medicare fraction.” 597 U.S. at 442.
Given the statute’s purpose of accurately identifying
hospitals that treat a high number of low-income
patients, the Court accepted the agency’s
interpretation of “entitled to [Medicare part A]
benefits” because it avoided the possibility that a “lowincome patient” might not “get counted at all,” even
though “that person remains just as low income as he
ever was, imposing just as high costs on the hospital
treating him.” Id. at 443-44.
Yet the agency’s conflicting payment-required
approach to SSI entitlement guarantees that many
low-income patients—including those meeting the
eligibility criteria for SSI cash benefits—will not get
counted as Congress intended. For example, every SSI
beneficiary hospitalized within the month they are
first determined to meet SSI program criteria will be
excluded because they are in their first month of
eligibility. See 75 Fed. Reg. at 50,280.
Still others are excluded for the many nonincome-related reasons that Social Security suspends
payments. See id. at 50,282 (counting only patients
where suspensions have been lifted and retroactive
payment manually issued). The agency’s atextual
imposition of an additional constraint—timely receipt
of a cash SSI payment—on the low-income proxy
selected by Congress (entitlement to SSI benefits)
seriously undermines Congress’s intent to accurately
26
compensate DSH hospitals that serve low-income
populations.
2. The Empire Court emphasized, moreover, the
need for bright lines and clear categories in the DSH
formula, to avoid patients “ping-ponging back and
forth … based on the happenstance of actual Medicare
payments, sometimes during a single hospital stay.”
Id. at 427. But the agency’s atextual engrafting of a
timely-receipt-of-payment factor for SSI fosters just
such unnecessary ping-ponging (in and out of the
Medicare fraction numerator).
The D.C. Circuit attempted to distinguish the SSI
program from Medicare on this point, reasoning that
“individuals routinely ping-pong in and out of
‘eligibility’ depending on fluctuations in their income
or wealth from one month to another.” App. 13. But
the theory that eligibility fluctuates in lockstep with
monthly receipt of payment cannot evade the force of
Empire’s reasoning.
In rejecting the argument that individuals should
be counted as “entitled to [Medicare part A] benefits”
only “for such days” that Medicare part A pays for
their hospitalization, the Court reasoned that the
statute required the agency to “ask about a patient on
a given day.” 597 U.S. at 440. But “the query the
agency must make is not whether that patient on that
day has received Part A payments.” Id. Rather, the
“query is … whether that patient on that day is
qualified to do so,” meaning the patient met program
eligibility criteria prior to their hospital stay or—if
they qualified while in the hospital—that only the
days after that qualifying event counted. Id. The
analogous inquiry here is an individual’s satisfaction
of program eligibility criteria, which are not
27
coextensive with cash payment criteria, much less
actual receipt of payment.
In addition, assumed income fluctuation is no
justification for embracing an agency interpretation
that forces payment-based ping-ponging even when an
individual’s income and resources have not varied at
all. Even assuming (wrongly) that program eligibility
fluctuates monthly with income, payment receipt is
much more variable, because Social Security suspends
payments for many reasons that have nothing to do
with an individual’s income or resources. As a
practical matter, SSI program eligibility is quite
stable: nearly 80% of beneficiaries maintain eligibility
for five years or more, regardless of payment status.
2021 Statistical Report, supra, at tbl. 78.5
Finally, statutory design reveals Congress’s
intent to foster stability, and to prevent individuals
from “routinely ping-pong[ing]” in and out of the SSI
program. Congress designed SSI benefits so that
individuals who fail to meet eligibility criteria for a
specific benefit in one month are buffered through
provision of other benefits. For instance, an individual
who is no longer disabled may sometimes continue to
receive cash assistance while participating in a
vocational rehabilitation program. 42 U.S.C.
§ 1383(a)(6). Non-cash SSI benefits also bridge the gap
after suspension of cash payments. As an example,
5 It is difficult for SSI beneficiaries to transition out of the
program by gaining income. In 2021, only about 2.5% of
beneficiaries were terminated from the program for excess
income or resources. See id. at tbls. 3, 77. Termination generally
occurs after twelve months of excess income. 20 C.F.R.
§ 416.1335.
28
Congress guarantees SSI beneficiaries’ entitlement to
vocational rehabilitation benefits for up to a year after
suspension of cash benefits. Id. § 1382d(e)(2).
In sum, even though eligibility for a cash
payment may be assessed monthly, a person’s broader
entitlement to SSI benefits under title XVI—the
statutory metric—does not turn off on a dime. The
agency’s manufactured timely-payment-required
approach thus countenances substantially more (and
wholly unnecessary) “ping-ponging” in and out of the
Medicare fraction numerator, despite the patient
“remain[ing] just as low income as he ever was, [and]
imposing just as high costs on the hospital treating
him.” Empire, 597 U.S. at 444.
The D.C. Circuit’s acceptance of the agency’s
approach substitutes an unstable and atextual line for
the clear line that Congress chose. This approach is
contrary to the agency’s own approach—for the same
language in the same sentence—to the Medicare Part
A counterpart of the statutory formula, and is
irreconcilable with Empire’s understanding of the
DSH program.
B. The D.C. Circuit’s Decision Is Wrong.
Neither the agency nor the D.C. Circuit has
provided a convincing reason why “entitled to benefits”
should mean something different for SSI benefits than
for Medicare Part A benefits, in the very same
sentence. The text and context of the Medicare Act, the
SSI statute, and other parts of the Social Security Act
all support equating “entitlement” with satisfying
program eligibility criteria. The agency’s reading—
which equates entitlement with receiving a cash
29
payment by the moment that the agency performs its
calculation—contravenes the statutory text and
ignores the broader benefits provided by the SSI
program.
1.
The statutory text rejects a narrow
view of “entitled.”
a. Starting with the Medicare DSH statute, the
“normal rule of statutory construction [is] that
identical words used in different parts of the same act
are intended to have the same meaning.” Taniguchi v.
Kan Pac. Saipan, Ltd., 566 U.S. 560, 571 (2012). This
presumption is “surely at its most vigorous when a
term is repeated within a given sentence.” Brown v.
Gardner, 513 U.S. 115, 118 (1994).
“Entitled to benefits under part A” means,
throughout the Medicare Act, “meeting the basic
statutory criteria, not actually receiving payment for
a given day’s treatment.” Empire, 597 U.S. at 435. The
same phrase—entitled to benefits—is not commonly
used within Title XVI (governing SSI).6 It is thus most
sensible to construe the phrase “entitled to [SSI]
benefits” in consonance with its term-of-art meaning
within the Medicare Act, as meeting basic eligibility
requirements—especially when it appears in the same
sentence as “entitled to [Medicare part A] benefits,”
6 Title XVI uses the “entitled to benefits” phrase in reference
to SSI benefits in only two sections. See 42 U.S.C. § 1382c(a)(4)
(limiting when “[a] recipient of benefits … may be determined not
to be entitled to such benefits” based on a new finding of no
disability); id. § 1383(a)(2)(B)(x) (permitting payment of deferred
benefits over time if “in the best interests of the individual
entitled to such benefits”).
30
serving the same purpose—measuring a population,
i.e., low-income Medicare beneficiaries.
If anything, because the SSI statute (like the
Medicaid fraction) focuses on “eligibility”—which
naturally lends itself to a broader scope, see Empire,
597 U.S. at 435—it reinforces that Congress intended
the “broad meaning of ‘entitlement’” for SSI, as it did
for Medicare part A. See id. at 436. And the provision
defining “[b]asic eligibility” for SSI benefits (captioned
“[b]asic entitlement” in the U.S. Code) functions just
as “entitled to benefits” does in the Medicare Act,
where eligibility is a threshold determination that can
“coexist[] with limitations on payment.” Id. A person
is eligible for SSI if they are “aged, blind, or disabled”
and Social Security “determine[s]” that they meet
criteria related to “income and resources.” 42 U.S.C.
§ 1381a; see also id. § 1382(a) (defining an “eligible
individual” based on income and resources for a
calendar year). Each such person is entitled to “be paid
benefits,” but only “in accordance with and subject to
the provisions of this [title XVI].” Compare id. § 1381a,
with id. § 426(c)(1) (stating that “entitlement of an
individual” to Medicare Part A benefits “consist[s] of
entitlement to have payment made under, and subject
to the limitations in, part A”).7
7 In a brief discussion addressing the question resolved in
Empire—not the question presented here—the Sixth Circuit
assumed that the SSI statute “interchangeably” uses “both
eligibility and entitlement,” based on the revisor’s caption of
§ 1381a. See supra at 6. In fact, eligibility is the focus of the SSI
statute. Regardless, interchangeable use of the terms supports,
rather than contradicts, interpreting “entitled to benefits”
consistently throughout the DSH statute as meaning “eligible,”
31
Numerous statutory provisions confirm that a
person can be eligible—i.e., have applied for benefits
and been determined to be aged or disabled, with
limited income and resources—yet receive no cash
payment for a particular month. See supra at 7.
The D.C. Circuit reasoned that individuals who
are eligible but receive no payment are not “entitled to
[SSI] benefits” because SSI is only a “cash” benefit,
and therefore receipt of a cash payment is the sine qua
non of entitlement. See App. 9-10. That is doubly
wrong. As discussed below, cash assistance is not the
only SSI benefit. But even if it were, nothing in the
Medicare Act or the SSI statute justifies reading
entitlement to mean an “absolute right to … payment”
for SSI when it means the opposite for Medicare part
A. See Empire, 597 U.S. at 435 (rejecting equating
“entitled” with “absolute right”). Both statutes outline
a right for eligible individuals to have benefits paid
under certain circumstances; that the benefit is cash
in hand versus cash paid to a medical provider is a
distinction without a difference. And in both cases, it
is meeting the program’s eligibility criteria—lowincome aged and disabled, for SSI beneficiaries—that
matters for the population-measuring purpose of the
DSH formula.8
b. Other statutory references to SSI beneficiaries
make clear that Congress knows how to refer to receipt
contrary to the Sixth Circuit’s acceptance of the agency’s
inconsistency. Metro. Hosp. v. U.S. Dep’t of Health & Hum. Servs.,
712 F.3d 248, 268-69 (6th Cir. 2013).
8 Given the billions of dollars at stake, supra at 15, Congress
surely would have provided “clear authorization” to enact a
payment-receipt carve-out for SSI only. Biden v. Nebraska, 143
S. Ct. 2355, 2361 (2023).
32
or payment of SSI benefits when it wants to.
Ironically, the agency interprets these narrower terms
elsewhere in the Medicare Act more broadly—i.e., as
not requiring receipt of a cash assistance payment—
than it does the broader DSH term “entitled to [SSI]
benefits.”
In Medicare part D, Congress referred to
“recipients of [SSI] benefits under [title] XVI” when
describing the population entitled to subsidies for
Medicare prescription drug coverage. 42 U.S.C.
§ 1395w-114(a)(3)(B)(v). Despite Congress’s limitation
to SSI “recipients,” the agency applies the part D
subsidy based on SSI eligibility, not SSI payment. Any
“[b]eneficiary of SSI benefits” is “treated as full
subsidy eligible” without having to apply for the
subsidy. 42 C.F.R. § 423.773(c)(2). Every SSI-eligible
individual receives the Part D subsidy for a minimum
of 6 to 18 continuous months, regardless of whether
they receive any SSI payment in those months. Id.; see
also 42 C.F.R. § 423.773(c)(1). The agency accepts the
initial SSI award letter—reflecting Social Security’s
determination of eligibility, not receipt of payment—
as conclusive proof of eligibility for the part D subsidy.
See Part D Manual § 70.5.2 (C.A.J.A. 138-39).
References to SSI beneficiaries in the Medicaid
Act are also instructive. In most places where a
Medicaid provision refers to the SSI program, the
Medicaid provision depends upon whether SSI
benefits are being “paid” to or “received” by an
individual. See, e.g., 42 U.S.C. § 1396d(a) (referring to
an individual “with respect to whom [SSI] benefits are
being paid under [title] XVI”); id. § 1396d(q) (an
individual who “received … a payment of [SSI]
33
benefits”); id. § 1396f(4)(A) (an individual “with
respect to whom [SSI] benefits are being paid”).
By contrast, the only instance within the
Medicaid Act where “entitled to [SSI] benefits” occurs
is within the provision governing the Medicaid DSH
adjustment, within language that tracks the statutory
language of the Medicare DSH provision. Id. § 1396r4(g)(2)(B). This limited use of the term “entitled to
[SSI] benefits” throughout the Social Security Act, in
contrast with repeated references to receipt of
benefits, confirms that the phrase, like “entitled to
[Medicare part A] benefits,” should be read as meeting
the SSI program’s statutory eligibility criteria, and not
atextually cabined to payment of SSI cash benefits.
2.
The
D.C.
Circuit
wrongly
disregarded
non-cash
benefits
provided by the SSI program.
The SSI program parallels Medicare part A in a
second way, reinforcing that a “payment” requirement
should not be engrafted onto the meaning of “entitled”:
even when one specific benefit cannot be paid, a person
can still receive different benefits under the program.
Just as a person who has exhausted Medicare
inpatient coverage for the year remains “entitled to
[Medicare part A] benefits” because part A also
provides skilled nursing coverage, see Empire, 597
U.S. at 437, a person whose payment of SSI cash
benefits is paused can still receive non-cash SSI
benefits like vocational rehabilitation services. Such
services (and others) are available to the about 85% of
beneficiaries who qualified for SSI on account of
blindness or disability (rather than age), 2021
34
Statistical Report, supra, at tbl. 5, for a period after
their cash assistance payments are suspended (so long
as they are still blind or disabled). See 42 U.S.C.
§ 1382d(e); 20 C.F.R. §§ 411.125, 411.155 (Ticket to
Work rules); id. § 416.2201, 416.2215 (traditional
program rules).
The D.C. Circuit agreed that the natural reading
of “benefits” encompasses both cash and non-cash
benefits, yet held that no non-cash benefits qualified
as benefits “under [title] XVI” because it considered all
non-cash benefits to be “housed” outside of title XVI.
App. 10-11. This was flat wrong.
Considering vocational rehabilitation benefits
alone—although there are other non-cash benefits for
SSI beneficiaries—is enough to demonstrate the
court’s error.
Vocational rehabilitation services have been part
of the SSI program—and thus an “[SSI] benefit under
[title XVI]”—since the program’s inception in 1972.
From then, through 1986, when the DSH statute was
enacted, to today, vocational rehabilitation services
are benefits provided to SSI beneficiaries under
section 1382d, which is part of title XVI. See supra at
7-8.
In rejecting the relevance of such benefits, the
D.C. Circuit zeroed in on the Ticket to Work program,
which is governed (in part) by a statute located in a
different title (title XI). See 42 U.S.C. § 1320b-19. The
court cast title XVI as merely “a funding mechanism
for a [title] XI benefit.” App. 12. But even if
(counterfactually) Ticket to Work benefits could be
disregarded, most vocational rehabilitation services
are still provided under the “traditional” model, which
35
continues running under § 1382d and its
implementing regulations—i.e., title XVI. See Gina A.
Livermore et al., Ticket to Work Participant
Characteristics and Outcomes Under the Revised
Regulations, Ctr. for Studying Disability Pol’y, at 17
(Sept. 24, 2012), http://tinyurl.com/mr2d37cz; 20
C.F.R. § 411.350 (state option to choose Ticket to Work
or traditional program).
Also, contrary to the D.C. Circuit’s view, App. 12,
reorganization of some vocational rehabilitation
provisions under Ticket to Work did not eliminate
vocational rehabilitation services as SSI benefits.
Years after the DSH statute’s enactment, Congress
compiled some common provisions that govern
vocational services for multiple federal programs into
a single statutory section. See Ticket to Work and
Work Incentives Improvement Act of 1999, Pub. L. No.
106-170, § 101, 113 Stat. 1860, 1863-81. A resulting
new statutory section (§ 1320b-19) was placed within
title XI (covering “general provisions”). But eligibility
for rehabilitation services continues to be governed by
the referring program. For SSI beneficiaries, this is
title XVI. See 42 U.S.C. § 1320b-19(k)(2)-(4).
Because the D.C. Circuit has conclusively
misread the statute, in irreconcilable tension not only
with its text but with this Court’s reasoning in Empire,
certiorari is needed to ensure that hospitals are
compensated as Congress intended for the low-income
patients they serve.
36
III. This Case Presents An Ideal Vehicle To
Resolve The Question Presented.
This case presents a clean statutory question
following a full administrative process. Because the
Administrator of the Centers for Medicare & Medicaid
Services opted to review the decisions of the Provider
Reimbursement Review Board, the record contains the
agency’s adjudicative decision defending its narrow
construction of “entitled to [SSI] benefits” despite its
adoption of a conflicting meaning of “entitled” for
Medicare part A benefits. See App. 46-93. This
adjudicative decision supplements the agency’s
Federal Register discussion, 75 Fed. Reg. at 50,28050,281, and ensures the issues have been aired.9
Resolving the question presented here in favor of
a consistent reading of “entitled” would also avoid the
need for courts to resolve a parade of future challenges
about the many ways the agency’s matching process is
arbitrary. Given decades showing the agency’s
approach is unworkable, further percolation is
unwarranted, and other cases are stayed pending the
outcome of this one. See, e.g., Empire Health Found. v.
Becerra, No. 2:16-cv-00209 (E.D. Wa. stayed on
remand Nov. 13, 2023). Declining review and waiting
for a future vehicle—which will cover the same
terrain—has no upside, and a clear downside:
9 The D.C. Circuit declined to consider arguments related
to certain payment codes. App. 14-15. This poses no obstacle to
review. Those arguments relate to the hospitals’ unrenewed
claim that the agency’s matching process is arbitrary.
37
continuing to embroil the courts
calculation-by-calculation litigation.
in
endless
Answering the statutory question presented here
requires neither delving into payment code details nor
grappling with the mechanics of computing the
Medicare fraction. And if answered in accord with
congressional design—and the textual analysis and
rationale of Empire—no court will ever become
ensnared in that tangle again. The Court should seize
this opportunity to review this question of pressing
importance, which affects the survival of safety net
hospitals across the country and the health of the
Nation’s most vulnerable communities.
38
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
Daniel F. Miller
Hyland Hunt
Sara J. MacCarthy
Counsel of Record
Heather D. Mogden
Ruthanne M. Deutsch
HALL, RENDER, KILLIAN, DEUTSCH HUNT PLLC
HEATH & LYMAN PC
300 New Jersey Ave. N.W.
330 E. Kilbourn Ave,
Suite 900
Suite 1250
Washington, DC 20001
Milwaukee, WI 53202
(202) 868-6915
(414) 721-0463
hhunt@deutschhunt.com
dmiller@hallrender.com
Counsel for Petitioners
December 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.