Amicus Curiae Brief — Wilder v. Virginia Hospital Assn.

—

51 LED

8 occ

No. 88-2043 JOSEPH F SPANIOL, JR,

| ene

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

GERALD L. BALILEs, et al.,

Petitioners,

v.

THE VIRGINIA HOSPITAL ASSOCIATION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

AMERICAN HEALTH CARE ASSOCIATION,

AMERICAN HOSPITAL ASSOCIATION, AMERICAN

ASSOCIATION OF HOMES FOR THE AGING,

NATIONAL COUNCIL ON THE AGING, INC.

AS AMICI CURIAE ON BEHALF OF RESPONDENT

(Additional Amici Curiae Listed in Appendix)

Rex E. Lee THOMAS C. Fox

CARTER G. PHILLIPS Counsel of Record

Mark E. HADDAD Joe, M. HAMME

Sip_ey & AUSTIN EUGENE TILLMAN

1722 Eye Street, N.W. W. THomas McGoucu, Jr.

Washington, D.C. 20006 THOMAS N. BULLBIT, JR.

(202) 429-4000 Reep SMITH SHAW & McCLAY

1200 18th Street, N.W.

Jerrrey M. TESKE Suite 1000

MarJorie H. CAREY

AMERICAN HOSPITAL

ASSOCIATION

840 N. Lake Shore Drive

Chicago, Illinois 60611

(312) 280-6700

Washington, D.C. 20036

(202) 457-6100

WILSON - Eres Painting Co Inc. - 789-0096 - WaswincTron, D.C. 20001

QUESTION PRESENTED

Whether 42 U.S.C. § 1983 affords hospitals and nurs-

all n

TABLE OF CONTENTS

QUESTION PRESENT EDB

TABLE OF AUTHORTITI E88

INTEREST OF AMICI CURIAE ......

BACKGROUND ON THE MEDICAID PROGRAM

AND STATE RATESETTING METHODOLOGIES..

ARGUMENT:

RESPONDENT HAS A CAUSE OF ACTION UN-

DER 42 U.S.C. § 1983 AGAINST STATE OFFI-

CIALS FOR VIOLATION OF THE FEDERAL

MEDICAID REIMBURSEMENT STANDARD IN

THE BOREN AMENDMENT .....

I. A SECTION 1983 ACTION EXISTS FOR VIO-

LATIONS OF FEDERAL STATUTORY

RIGHTS UNLESS CONGRESS INTENDED

NOT TO CONFER ENFORCEABLE RIGHTS

UPON THE PUTATIVE PLAINTIFF, OR IN-

TENDED A COMPREHENSIVE AND EX-

CLUSIVE REMEDIAL SCHEME IN THE EN-

ACTMENT ITSELF TO SUBSTITUTE FOR

SECTION 1983 — — —

A. The Medicaid statute creates an enforce-

able right” to provider reimbursement by

rates that are reasonable and adequate to

meet the costs which must be incurred by

efficiently and economically operated facili-

2 * (10

(iii)

11

11

iv

TABLE OF CONTENTS—Continued

- Page

B. Congress has not forcelosed private enforce-

ment of the Boren Amendment by providers

in the Medicaid statute itself —...................... 18

II. RECOGNIZING A SECTION 1983 REMEDY

WOULD NOT OPEN THE FLOODGATES TO

FEDERAL COUFT REVIEW OF INDIVID-

UAL RATE DISPUTES, BUT WOULD PRO-

VIDE A MEANINGFUL METHOD OF REME-

DYING SYSTEMATIC VIOLATIONS OF THE

BOREN AMENDM ENT 25

A. Availability of a section 1983 remedy has not

produced a flood of Boren Amendment liti-

gation ... 4 Res OE Se 25

B. The absence of a remedy would permit State

Plans which contain egregious violations of

the Boren Amendment to continue in opera-

— . a en 27

. ——ñ—ñꝛ —— ů — —— — 30

*

TABLE OF AUTHORITIES

CASES Page

AMISUB (PSL) v. Colorado Dep’t of Social Serv-

ices, 879 F.2d 789 (10th Cir. 1989), petition for

cert. filed, 58 U.S. L. W. 3322 (U.S. Oct. 25, 1989)

(No. 89-682) .. e eee een 19, 25-27

Alabama Hosp. Ass'n v. Beasley, 702 F.2d 955

(llth Cir. 1988) .......................... 1 25

Albert Einstein Medical Center v. White, Civ. No.

88-8831 (E. D. Pa. filed Nov. 17, 1988) 29

California Hosp. Ass'n v. Schweiker, 559 F. Supp.

110 (C. D. Cal 1982), aff'd, 705 F. 2d 466 (9th

ER 7 .... 19

Children's Memorial Hosp. Ass'n v. Illinois Dep't

of Public Aid, 562 F. Supp. 165 (N. D. III. 1983) 26

Coos Bay Care Center v. Oregon Dep't of Human

Resources, 803 F.2d 1060 (9th Cir. 1986), cert.

granted, 481 U.S. 1036, vacated as moot, 484

D ee 25

. Cort v. Ash, 422 U.S. 66 (197500) 12

) Golden State Transit Corp. v. City of Los Angeles,

No. 88-840, slip op. (U.S. Dec. 5, 198997 13

Illinois Hosp. Ass’n v. Illinois Dep’t of Public Aid,

576 F. Supp. 360 (N. D. III. 1983) —

Maine v. Thiboutot, 448 U.S. 1 (1980) 9,11

Mary Washington Hosp., Inc. v. Fisher, 635 F.

Supp. 891 (E. D. Va. 19880))))⸗n x

Michigan Hosp. Ass’n v. Dep’t of Social Services,

No. L89-40070 CA (W.D. Mich. filed July 25,

AEST ˙—ecr ! . 29

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (19817 11, 12, 18

Montoya v. Johnston, 654 F. Supp. 511 (W..

1 T0000 26

Nebraska Health Care Ass'n v. Dunning, 778 F. 2d

1291 (8th Cir. 1985), cert. denied, 479 U.S.

EE GEREIEED ccccocsrscnsccnaseresscessnsessnnensensvasnescemmmanneasanes 25, 26

vi

TABLE OF AUTHORITIES—Continued

Page

Nebraska Health Care Ass’n v. Dunning, [1984

Transfer Binder] Medicare & Medicaid Guide

(CCH), 734.100 (D. Neb. July 9, 1984), aff’d

in part and vacated in part on other grounds,

778 F.2d 1291 (8th Cir. 1985), cert. denied,

479 U.S. 1063 (1987) 28

Ohio Hosp. Ass’n v. Dep’t of Social Services, No.

88-04961, slip op. (Oh. Ct. Claims. Nov. 19,

1988), appeal pending, No. 88-AP-1084 (Oh. Ct.

App.) . CS OS a 29

Pennhurst State School and Hosp. v. Halderman,

451 U.S. 1 (1981) ...... 11, 18, 14

Rosado v. Wyman, 397 U.S. 397 (1970) 6 29

St. Tammany Parish Hosp. Service Dist. v. Dep’t

of Health and Human Resources, 677 F. Supp.

455 (E. D. La. 1988) ccc ccccccceeeeceeseeeeeees 26

Silver v. Baggiano, 804 F.2d 1211 (11th Cir.

11717 —Ä—Ä— eI OE 25

Smith v. Robinson, 468 U.S. 992 (1984) 1 18

State Tax Comm'n v. Administrative Hearing

Comm'n, 641 S. W. 2d 69 (Mo. banc 1982) 23

Thomas v. Johnston, 557 F. Supp. 879 (W. D. Tex.

1 17, 26

Virginia Hosp. Ass'n v. Baliles, 868 F.2d 653

(4th Cir. 1989), cert. granted in part, 110 S. Ct.

I A * ace Rs le ie 25

Washington State Health Facility Ass’n v. Wash-

ington Dep’t of Social and Health Services, 698

F.2d 964 (9th Cir. 1982) 26

West Virginia Univ. Hosps., Inc. v. Casey, 885 F.2d

PR ARM . 12, 25, 26, 28

Wright v. City of Roanoke Redevelopment and

Housing Auth., 479 U.S. 418 (1987) 9, 12, 13, 18

Yapalater v. Bates, 494 F. Supp. 1349 (S. D. N. v.

1980), aff'd per curiam, 644 F.2d 181 (2d Cir.

1981), cert. denied, 455 U.S. 908 (1982) 25

vii

TABLE OF AUTHORITIES—Continued

STATUTES Page

Medicaid Act, 42 U.S.C. 1396 et seq.:

42 U.S.C. § 1896 (1982 & Supp. 1987) 4

42 U.S.C. § 1896a (1982 & Supp. 1987) 8 4

1 — 11

42 U.S.C. 5 1396 (a) (13) (A) (1982 & Supp.

r 5, 9, 16

42 U.S.C. § 1396 (a) (22) (D) (1982 & Supp.

＋ꝛꝓI— — 17

42 U.S.C. § 1396 e (1982 & Supp. 1987) 7, 14

42 U.S.C. § 1396 (a) (37) ((g)) 18

1 0 passim

FE AE Se 11

Medicare and Medicaid Anti-fraud and Abuse

Amendments of 1977, Pub. L. No. 95-142,

„ —— 1.2 — 18-19

Omnibus Reconciliation Act of 1980, Pub. L. No.

96-499, § 962 (1980): 5

Omnibus Budget Reconciliation Act of 1981, Pub.

L. No. 97-85, § 2178 (1981774 5

Omnibus Budget Reconciliation Act of 1987, Pub.

L. No. 100-208, 5 4211 (b) (198777 15-16

REGULATIONS

42 C. F. R.: 4

Section 430.10 (198)) cece. 4,19

Section 430.12 (198) 6

Section 430.15 (1980ꝙĩ060.c cece 6, 11

r 19

e ...... 7

e mx 7

Section 430.35 (a) (1988) 7, 14

r 14

Section 440.230 (198)));;:;::: „% 17

Section 447.205 (1988) 8 17

Section 447.250 (198) 14, 16, 19

viii

TABLE OF AUTHORITIES—Continued

Page

Section 447.252 (1988) 6 = 5

Section 447.253 (1988) 9

Section 447.253 (a) (1989))) 6

Section 447.253 (b) (198) 5

Section 447.253 (b) (1) (1989) 6

Section 447.253 (e) (198) 6, 16, 20

Section 447.255 (1988) 14

45 C. F. R.:

r .... 11, 19

. 11

D ˙ ST Ce ae 19

Section 250.30 (a) (3) (iv) (1976) 15

OTHER AUTHORITIES

Hamme & Kanner, Long-Term Care Reimburse-

ment Issues: Pro and Contra Aids for Litigants,

in 1989 Health Law Handbook (Clark Boardman

Co., A. Gosfield, Ed. 198999 26

H.R. Conf. Rep. No. — ee oe oes

(1987) . 16

H.R. Rep. No. 1122, 94th Cong., 2d Sess. (1976) 15

H.R. Rep. No. 1479, 96th Cong., 2d Sess. (1980) 15

S. Rep. No. 139, 97th Cong., Ist Sess. (1981) 5

S. Rep. No. 471, 96th Cong., Ist Sess. (1979)... 17

S. Rep. No. 1240, 94th Cong., 2d Sess. (1976) 15

135 Cong. Rec. (1989) :

...... 16

ne 16

48 Fed. Reg. (1983)

r ˙ ˙% 7 24

7 24

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-2043

GERALD L. BALILEs, et al.,

. Petitioners,

THE VIRGINIA HOSPITAL ASSOCIATION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

AMERICAN HEALTH CARE ASSOCIATION, |

AMERICAN HOSPITAL ASSOCIATION, AMERICAN

ASSOCIATION OF HOMES FOR THE AGING,

NATIONAL COUNCIL ON THE AGING, INC.

AS AMICI CURIAE ON BEHALF OF RESPONDENT

(Additional Amici Curiae Listed in Appendix)

INTEREST OF AMICI CURIAE

Amici are an alliance of national organizations rep-

resenting health care providers that participate in the

Medicaid program, and recipients of medical assistance

under that program. Amici’s shared interest in this case

is their concern that States not adopt Medicaid Plans

designed systematically to under-reimburse providers, and

thereby jeopardize Medicaid recipients’ access to qual-

ity health care. Amici recognize that assuring high qual-

ity hospital and nursing home services is a complex proc-

ess, requiring the hard work and cooperation of many

dedicated health care professionals and nonprofessional

staff. Amici also know that there is a vital link between

the ability of providers to assure the availability to pa-

tients of high quality care and the adequacy of the pay-

ment they receive for such care. Because Medicaid dol-

lars represent approximately 10 percent of the gross reve-

nues of hospitals, and 43 percent of the gross revenues of

nursing homes, amici believe that providers must have

the means to assure that the federal standard for Medi-

caid reimbursement of such institutions is met by each

State’s Medicaid program.

Amicus American Health Care Association (“AHCA”:

and its affiliated State associations are the largest na-

tional trade association representing the long term care

(nursing home) industry. AHCA is a private, volun-

tary, nonprofit federation of 51 affiliated State associa-

tions representing more than 10,000 nonprofit and for-

profit long term care providers which care for over one

million nursing home patients. Many such patients are

funded under the Medicaid program, and Medicaid spends

annually approximately $40 billion (State and federal

funds) on nursing home services for Medicaid recipients.

Founded in 1949, AHCA remains dedicated to the promo-

tion of standards for professionals in long term health

care delivery and quality care for residents.

Amicus American Hospital Association (“AHA”) is a

private, voluntary, nonprofit, national trade association

of hospitals whose mission is to promote the welfare of

the public through leadership and assistance to its mem-

bers in the provision of better health care and services.

With approximately 5,500 institutional members, the

AHA represents a majority of the nation’s acute care

hospitals. A significant majority of these hospitals par-

ticipate in the Medicaid program. Because more

vide rates that are adequate to guaran

ity medical care for those served through the Medicaid

program.

Amicus American Association of Homes for the Ag-

ing (“AAHA”) and its affiliated State associations

national nonprofit trade association representing

3.500 not-for-profit facilities providing health care,

ing, continuing care retirement programs, and commu-

nity services to more than 500,000 older individuals.

Seventy-five percent of AAHA homes are affiliated with

religious organizations; the remaining are sponsored Ly

in a manner which enhances each resident’s sense of self-

worth and dignity. Most of the members represented by

AAHA and its 37 State affiliates participate in the Medi-

caid program.

Amicus National Council on the Aging, Inc. (“NCOA”),

founded in 1950, is a national, nonprofit organization.

Its membership includes individuals, voluntary agencies

and associations (social, health, education, housing, re-

ligious, civic, ete.), business organizations and labor un-

ions united by a commitment to the principle that the

nation’s older people are entitled to lives of dignity, se-

curity, physical, mental and social well-being and to full

participation in society. NCOA conducts research, under-

takes demonstration programs, sets standards, dissemi-

nates information and promotes the development of a

continuum of opportunities and quality services with, by,

for, and to older persons. NCOA has over 7,000 mem-

bers, including nonprofit adult daycare programs, com-

munity-based long term care organizations, senior hous-

M

The decision of the Court of Appeals in this case, rec-

Medicaid statute does not withdraw

4

dicate the right to reimbursement through payment rates

that satisfy the federal standards contained in the Medi-

eaid statute. Without the opportunity for federal judi-

cial review, the quality of care that hospitals and nurs-

present their views concerning the important issues pre-

sented by this case.“

BACKGROUND ON THE MEDICAID PROGRAM AND

STATE RATESETTING METHODOLOGIES

A. The Medicaid Program

Medicaid is a cooperative federal-State program whose

purpose is to provide federal funding to States to assist

them in furnishing medical assistance, rehabilitation, and

other services to the indigent. 42 U.S.C. § 1396 (1982 &

Supp. 1987). Like other federal-State programs, States

may choose between complying with the conditions of the

statute or foregoing federal funding. To participate in

the program, a State must first establish a State Plan for

medical assistance (“State Plan”). Id. The State Plan

is defined by regulation as a comprehensive written state-

ment that describes the nature and scope of the State’s

Medicaid program and conforms with the requirements

of the Medicaid statute, regulations, and other official

issuances of the Department of Health and Human Serv-

ices (“HHS”). 42 C.F.R. § 430.10 (1988).

The federal statutory requirements that a State Plan

must meet are set forth in section 1902 of the Social

Security Act. 42 U.S.C. § 1396a (1982 & Supp. 1987).

The operative language of section 1902 is mandatory—

the section begins with the statement, “A State Plan for

medical assistance must provide, and proceeds to

enumerate 50 requirements. Among these requirements is

1 Pursuant to Rule 36 of the Rules of this Court, the parties

have consented to the filing of this brief. The parties’ letters of

consent have been filed with the Clerk of the Court.

the federal standard for reimbursement of hospitals and

nursing homes, commonly known as the Boren Amend-

ment. 42 U.S.C. § 1396a(a)(13)(A) (1982 4 Supp.

1987).* This provision states that:

a State Plan for medical assistance must provide

for payment .. of the hospital services, skilled nurs-

in conformity with State and Federal laws,

regulations, and ty and safety standards and

to assure that individuals for medical assist-

ance have reasonable access . . to inpatient hospital

services of adequate quality.

Id. (emphasis supplied).

At the federal level, Medicaid is administered on behalf

of HHS by the Health Care Financing Administration

(“HCFA”). HCFA regulations implementing the Boren

Amendment require that the State Plan specify compre-

hensively the methods and standards used by the State

Medicaid agency to set payment rates that are consistent

with federal Medicaid requirements. 42 C.F.R. § 447.252

(1988). In addition, executing the statutory mandate,

the regulations require that the State make certain find-

ings on an annual basis, and whenever it submits a Plan

or amendment for approval. 42 C. F. R. 447.253 (b

(1988). Among the findings required is that the State

2 Section 1902 (a) (13) (A) of the Social Security Act. Congress

originally applied the Boren Amendment only to nursing homes in

the Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499,

§ 962 (1980). The new payment standard was extended to hospital

services in the Omnibus Budget Reconciliation Act of 1981, Pub. L.

No. 97-35, § 2173 (1981). Congress has made clear that its inten-

tions regarding the payment standard in the hospital amendment

are identical with respect to the nursing home amendment. S. Rep.

No. 139, 97th Cong, Ist Sess. 478 (1981).

(1) (1988).

The State is also required

factory to HCFA that it has made the requisite findings,

42 C.F.R. § 447.253(a) (1988), and that it provides an

administrative appeals procedure. 42 C.F.R. § 447.253

(a), (e) (1988). States are not required to submit the

findings themselves, or supporting data, for review.

HCFA’s review thus does not determine whether a State’s

Plan in fact complies with the Medicaid statute’s sub-

stantive standards, but is limited to determining whether

the State has submitted satisfactory “assurances” of its

compliance with those standards. Pursuant to these au-

thorities, all States have opted to participate in Medicaid,

as has the District of Columbia.“

every amendment to a State Plan, must be approved by

HCFA, which is authorized to disapprove those Plans

that do not meet federal requirements. 42

§§ 430.12-430.15 (1988). Second, even after a Plan has

ment. Specifically, the statute and regulations allow

42 U.S.C. §1396¢ (1982 & Supp. 1987); see also, 42

C. F. R. § 430.35(a) (1988). The regulations further

arise from the State’s failure to actually comply with a

Federal requirement, regardless of whether the Plan it-

self complies with that requirement.” Id. at § 430.35(c).

In addition, the regulations require HCFA to perform

“program reviews ... [i]n order to determine whether

the State is complying with the Federal requirements and

the provisions of its Plan,” id., § 430.32(a), and States

must correct their deficiencies. Id., f 430.32(c). Al-

though these provisions grant HCFA authority to termi-

nate noncomplying States from Medicaid participation,

the agency has never exercised this authority.

C. State Ratesetting Methodologies

The Boren Amendment grants States flexibility to fash-

adjusted after the end of the cost year based on the

The hospital ratesetting methodology in Virginia's State

Plan contains many elements found in other prospective

but no

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9

economically operated facilities” in order to make avail-

able quality care to Medicaid recipients. 42 U.S.C. § 1396a

(a) (13) (A); 42 C. F. R. 447.253 (1988). The issue pre-

sented by this litigation is whether facilities have a right

to sue State Medicaid officials under section 1983 to

assure that the Plan’s ratesetting methodology does not

systematically fail to conform with this standard.

SUMMARY OF ARGUMENT

Beneficiaries of rights conferred by a federal statute

have a cause of action under 42 U.S.C. § 1983 against

State officials for violation of those rights. Maine v. Thi-

boutot, 448 U.S. 1 (1980). This rule permits the bene-

ficiaries of a federal funding program to sue State offi-

cials for violations of federal funding requirements in

their administration of the program, unless the defend-

ants demonstrate either that: (1) Congress did not in-

tend the statute at issue to confer “enforceable rights”

on the plaintiffs; or (2) Congress did intend remedial

devices required by the statute to constitute a compre-

hensive and exclusive scheme to remedy violations.

Wright v. City of Roanoke Redevelopment and Housing

Authority, 479 U.S. 418 (1987).

Under neither of these exceptions is there a basis for

finding congressional intent to withdraw the section 1983

remedy from hospitals or nursing homes seeking to enjoin

violations of the federal payment standard established by

the Boren Amendment. The enforceable rights exception

applies only where Congress speaks in merely precatory,

rather than mandatory terms, or plainly does not intend

the statute to confer rights on the putative plaintiffs. In

the instant case, the payment standard set by the Boren

Amendment is unequivocally mandatory, based on its

plain language and because compliance with the stand-

ard is an express condition on the continued receipt of

federal Medicaid funds. Moreover, the structure and leg-

islative history of the Medicaid statute and the Boren

Amendment indicate that Congress, recognizing an essen-

tial link between adequate reimbursement and quality of

/

10

care, intended the payment standard to benefit providers

as a way of assuring the availability of quality services

to Medicaid recipients.

Nor did Congress intend the administrative appeals

procedures established by the States pursuant to HCFA

regulations to represent a comprehensive scheme that

would be the exclusive remedy for violations of the Boren

Amendment. Not only is a comprehensive appeals re-

quirement not directly mandated by the statute, but the

regulations require only that States furnish an appeals or

exceptions procedure to permit an individual provider an

opportunity to present new evidence and receive prompt

administrative review of its payment rate. HCFA has

never suggested that the appeal procedures are intended

for review of the legality of the State’s ratesetting meth-

odology, and the overwhelming majority of States, with

the approval of HCFA, have adopted procedures that pre-

clude such challenges. In short, there is no evidence

that Congress intended the Medicaid statute as a compre-

hensive or exclusive remedial scheme, and the individual

provider rate appeal regulation adopted by HCFA cannot

change that intent.

Finally, the cursory nature of the review of State Plans

that HCFA conducts makes a private cause of action

essential to effective enforcement of the federal payment

standard in the Boren Amendment. Lower court deci-

sions invalidating State ratesetting methodologies for

noncompliance with the Boren Amendment demonstrate

the need for such a remedy. Several of these cases show

that States have often implemented State Plans whose

noncompliance with the statute is egregious. In the

absence of a private cause of action to enjoin noncompli-

ance, such Plans would operate to deny providers the

reasonable and adequate reimbursement needed to assure

the availability of quality care to Medicaid recipients.

11

ARGUMENT

RESPONDENT HAS A CAUSE OF ACTION UNDER

42 U.S.C. §1983 AGAINST STATE OFFICIALS FOR

VIOLATION OF THE FEDERAL MEDICAID REIM-

BURSEMENT STANDARD IN THE BOREN AMEND-

MENT

I. A SECTION 1983 ACTION EXISTS FOR VIOLA-

TIONS OF FEDERAL STATUTORY RIGHTS UN-

LESS CONGRESS INTENDED NOT TO CONFER

ENFORCEABLE RIGHTS UPON THE PUTATIVE

PLAINTIFF, OR INTENDED A COMPREHENSIVE

AND EXCLUSIVE REMEDIAL SCHEME IN THE

ENACTMENT ITSELF TO SUBSTITUTE FOR SEC-

TION 1983

In Maine v. Thiboutot, 448 U.S. 1 (1980), this Court

held that beneficiaries of an entitlement created under

the Social Security Act could sue State officials under 42

U.S.C. 8 1983 for alleged deprivation of benefits con-

ferred under the Act.“ Since Thiboutot, the Court has

recognized two exceptions to the rule that section 1983

is available to remedy State violations of rights secured

by federal statutes. See Middlesex County Sewerage Au-

thority v. National Sea Clammers Association, 453 U.S. 1,

19 (1981), citing Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 67 (1981). A plaintiff alleging a

deprivation of federal statutory rights by State officials

will not be permitted to sue under section 1983 if: (1)

the statute at issue is not the kind that creates enforce-

able “rights” under section 1983; or (2) Congress has

5 The program at issue in Thiboutot was Aid to Families With

Dependent Children (“AFDC”), a federal-State cooperative fund-

ing program very similar to Medicaid. In both, the federal govern-

ment contributes funds to be administered by a State agency in

accordance with the terms of a State Plan approved by the super-

vising federal agency. Compare 42 U.S.C. 5 602 (a); 45 C. F. R.

§§ 201.2-201.3 (AFDC), with 42 U.S.C. §1396a(a); 42 C. F. R.

§§ 430.10-430.15 (Medicaid). Like the plaintiffs in Thiboutot, Re-

spondent seeks only a mechanism to compel State Medicaid officials

to comply with statutory standards governing expenditure of pro-

gram funds.

12

foreclosed private enforcement of the statute by creating

a comprehensive and exclusive remedial scheme in the

enactment itself. Sea Clammers, 453 U.S. at 19. The

State defendants bear the burden of demonstrating, “by

express provision or other specific evidence from the stat-

ute itself that Congress intended to foreclose private

enforcement.” Wright v. City of Roanoke Redevelopment

and Housing Authority, 479 U.S. 418, 423 (1987).°

These exceptions are inapplicable in the instant case.

The language, legislative history, and agency interpreta-

tion of the Boren Amendment amply demonstrate that it

creates a right to “reasonable and adequate” reimburse-

ment that is “enforceable” within the meaning of Penn-

hurst, and that the statute contains no remedial mecha-

nisms that are sufficiently “comprehensive” to demon-

strate that Congress intended to foreclose access to sec-

tion 1983.

A. The Medicaid statute creates an “enforceable right”

to provider reimbursement by rates that are reason-

able and adequate to meet the costs which must be

a incurred by efficiently and economically operated

facilities

The first of the Pennhurst exceptions to section 1983

examines the statute, under which the plaintiff claims

a right, to determine whether Congress intended that en-

actment to impose an “enforceable” obligation on the

* Petitioners repeatedly mistake the object of the Pennhurst test

as determining whether a cause of action under section 1983 is

implied.“ Pet. Br. at 7, 11, 17, 21, 22. Petitioners have confused

Pennhurst analysis with that applied by the Court in determining

whether a cause of action should be inferred from a silent federal

statute. E.g., Cort v. Ash, 422 U.S. 66 (1975). In the latter case,

a plaintiff must demonstrate that Congress intended by implication

to confer a private right of action. Section 1983, however, is an

express cause of action. The relevant inquiry is whether there is

evidence that Congress intended to withdraw that cause of action

in a particular case. See Sea Clammers, 453 U.S. at 26 (Stevens,

J., concurring in part and dissenting in part); West Virginia Uni-

versity Hosps., Inc. v. Casey, 885 F.2d 11, 18 & n.1 (3d Cir. 1989).

13

State defendants. Pennhurst, 451 U.S. at 15. In the in-

stant case, this inquiry has two components. First, the

Court must ask whether Congress intended the interest

in reasonable and adequate rates of payment to be man-

datory, or whether Congress spoke “merely in precatory

terms.” Id. Second, if the statutory provision is a man-

datory one, it must be asked whether the provision was

intended to benefit Medicaid providers. Golden State

Transit Corp. v. City of Los Angeles, No. 88-840, slip

op. at 5 (U.S. Dec. 5, 1989).

1. In Pennhurst, the Court concluded that the patient

“bill of rights” provision in the Developmentally Dis-

abled Assistance and Bill of Rights Act of 1975 was

merely a declaration of policy rather than a manda-

tory condition for participation in the program. The

Court contrasted the Bill of Rights provision, which

appeared in a section of the Act entitled “Findings,” with

other provisions of the Act entitled “conditions.” 451

U.S. at 19, 23. While the failure of a State to meet

one of the conditions of the Act could lead to the loss

of federal funds, “funds [could] not be terminated for a

State’s failure to comply with” one of the “findings.” Id.

at 23. The distinction between conditions of receiving

funds and mere findings of policy was critical, the Court

explained, because only if Congress clearly “impose/{d)

conditions on the grant of federal funds” could “the States

knowingly decide whether or not to accept those funds.”

Id. at 24. By contrast, in Wright, the statutory provi-

sion at issue was framed in “mandatory” terms, 479 U.S.

at 430, and a failure to comply with that provision was

enforceable by the termination of further federal funds.

Id. at 424.

Pennhurst and Wright establish that a provision of a

funding statute creates an enforceable right where that

provision constitutes a condition of receiving federal funds,

and where noncompliance with the provision would per-

mit the administering federal agency to terminate further

federal funding under the program. When the adminis-

14

ceipt of such funds, and the condition is obviously en-

forceable within the meaning of Pennhurst. 451 U.S. at

23. The federal standard in the Boren Amendment is

clearly a “condition” of participation. The Boren Amend-

ment is one of 50 enumerated requirements of section

1902 which a State “must provide,” and the failure to

comply with any of these requirements is grounds for

termination of federal funding.

Petitioners and the Solicitor General argue that

cause the Boren Amendment refers to rates

are complete once the Secretary accepts the assurances.

This interpretation elevates form over substance, and i

therefore flatly inconsistent with the statute and

menting regulations. The Medicaid statute and regula-

tions expressly distinguish between formal compliance

and compliance in practice: “a question of noncompliance

in practice may rise from the State’s failure to actually

comply with a Federal requirement, regardless of whether

the plan itself complies with that requirement.” 42

C. F. R. § 430.35 (e); see 42 U.S.C. §1396c; 42 C.F.R.

§ 430.35(a). The regulations further specify that a State

must make annual findings that its payment rates are

reasonable and must submit information related to the

findings to HCFA. 42 C. F. R. §§ 447.250-447.255. There

can be no doubt that if the Secretary determined, despite

the State’s “assurances,” that the State’s Plan operated

in practice systematically to deny providers reasonable

payment, HCFA would have the authority under the

Medicaid statute to terminate federal funding. 42 U.S.C.

§ 1396¢.”

The Solicitor General notes that in 1988 alone, $29 billion in

federal funds were expended under Medicaid. Br. of United States

at 2. It is not credible that Congress would have committed

federal government to annual expenditures of this magnitude

out intending that the responsible agency at least retain the

a

15

The legislative history confirms the plain language of

the statute. While amici will not attempt to provide a

comprehensive review of the legislative history, the fol-

lowing points are particularly significant.

First, when Congress enacted the Boren Amendment,

it codified the requirement for reimbursement of the costs

of “efficiently and economically operated” facilities al-

ready contained in HCFA regulations implementing the

prior reasonable cost-related payment standard. See 45

C. F. R. § 250.30 (a) (3) (iv) (1976). 17 history

section 1983 remedy. See H.R. Rep. No. 1122, 94th

Cong., 2d Sess. 7 (1976); S. Rep. No. 1240, 94th Cong.,

2d Sess. 4 (1976). Moreover, notwithstanding the

Cong., 2d Sess. 154 (1980) (emphasis supplied). There

is no evidence that, in enacting the Boren Amendment,

Congress (which was well aware of Medicaid rate liti-

gation in federal courts) intended to withdraw pro-

viders’ right to initiate such litigation.

Congress has continued from time to time to express

its view that the payment standard in the Boren Amend-

ment is mandatory. For example, when Congress enacted

extensive and costly nursing home quality of care reforms

in the Omnibus Budget Reconciliation Act of 1987, it

specifically directed that States must take those costs into

mate authority to expel noncomplying States from participation.

The fact that HCFA has never exercised this draconian authority

cannot be equated with an absence of congressional! intent to grant

it.

171

iH

i

41

it

195

4275

115

2

f

.

i

Hl

Accordingly, the Boren Amendment’s federal payment

standard is an “enforceable right” within the meaning

of section 1983, as interpreted in Pennhurst and Wright.

First, in the case of hospitals and nursing facilities, pay-

ment is always made directly to the

US.C. §1396a(a)(13)(A) (1982 4 Supp. 1987);

C. F. R. § 447.250. See also, 42 C. F. R.

17

vidual provider has right to appeal its payment rate) ;

42 C.F.R. § 447.205 (1988) (public notice required of

in ratesetting methodology). Moreover, the Boren

Amendment specifically emphasizes the need for States to

establish rates adequate to permit “facilities” to meet

their responsibilities to provide quality care and to afford

reasonable access to Medicaid recipients. Thus, under

the plain terms of the statute, providers are recognized

as independent beneficiaries under

the Medicaid statute is a necessary concomitant of the

way the program is structured. Amici acknowledge that

the fundamental purpose of the Medicaid program is to

provide funds whereby States may arrange for the fur-

S. Rep. No. 471, 96th Cong., Ist Sess. 28-29 (1979). See

also, 42 U.S.C. § 1396a(a)(22)(D) (1982 & Supp. 1987)

(State Plan must specify standards and methods State

will use to assure that services are of high quality) ;

42 C.F.R. § 440.230 (1988) (service must be of suffi-

cient amount, duration, and scope reasonably to achieve

its purpose Thus, the effort to parse the interests

Medicaid recipients from those of providers is as incon

sistent with congressional intent as it is with common

sense.

—

* Numerous lower court decisions also have recognized this con-

nection. F.., Thomas v. Johnston, 557 F. Supp. 879, 903-04 (W. D.

Tex. 1983) ((tie link between the adequacy of reimbursement

rates paid to providers and the adequacy of care provided to Medi-

caid recipients is quite obvious

18

B. Congress has not foreclosed private enforcement of

the Boren Amendment by providers in the Medicaid

statute itself

The second Pennhurst exception to section 1983 ex-

amines the statute under which the plaintiff claims a

right to determine if the enactment contains a remedial!

scheme “sufficiently comprehensive . . . to demonstrate

intent to preclude the remedy of suits un-

der § 1983.” Sea Clammers, 453 U.S. at 20. More pre-

cisely, the Court must inquire “whether Congress in-

tended that the remedies in the substantive statutes be

exclusive.” Id. at 28 (Stevens, J., concurring in part and

dissenting in part), citing Pennhurst, 451 U.S. at 28.

In only two cases has this Court found a statute’s in-

ternal remedial schemes sufficiently comprehensive to

demonstrate congressional intent to make the schemes

exclusive. In Sea Clammers, the Court held that the “un-

usually elaborate enforcement provisions” of two federal

water quality statutes, conferring private judicial reme-

dies on citizens, evidenced congressional intent to pre-

clude a section 1983 remedy. 453 U.S. at 13-14. A stat-

utory right to judicial review was also available in Smith

v. Robinson, 468 U.S. 992, 1011 (1984).

gests

ment itself is silent as to the requi

judicial or administrative remedies.’

:

3

8

* Amici the National Governors’ Association et al., erroneously

argue that 42 U.S.C. § 1396a(a) (37 (B) requires States to estab-

lish administrative appeals procedures for providers. Br. of Na-

tional Governors’ Association, et al, at 5. This section, which re-

quires States to establish “procedures for prepayment and post-

payment claims review” (emphasis supplied), by its plain terms

as part

ances” often results in approval of State Plans that mani-

festly do not satisfy the federal standard.“

As indicated, the Medicaid statute contains no require-

ment concerning provider appeals. While HCFA has

% The cursory nature of HCFA's review of State “sssurances”

has often been documented in lower court decisions. See, eg.

AMISUB (PSL) ». Colorado Dep't of Social Services, 879 F.2d

789, 799 (10th Cir. 1989), petition for cert. filed, 58 U.S. LW. 3322

(U.S. Oct. 25, 1989) (No. 89-682); California Hosp. Asen v.

Schweiker, 559 F. Supp. 110, 116-117 (C.D. Cal. 1982), aff'd, 705

F.2d 466 (9th Cir. 1983).

This review and approval process is nearly identical to that

required under the AFDC regulations that were deemed insufficient

Nebraska Health Care Association v. Dunning, 778 F.2d 1291 (8th

Cir. 1986) (HCFA approval of 3.75% inflation factor invalid due

to failure of State to include “related information” required under

regulations), cert. denied, 479 U.S. 1063 (1987); Mary Washington

Hospital, Inc. v. Fisher, 686 F. Supp. 891, 904 (E. D. Va. 1985)

Tn in Tle

* 5 11 1242 ii 12141 1 ‘

} i i 1 f

. Aut 7 +

i 1

r e

Ie 14 114 127

j

Hospital Plans: California, Hawaii, Missouri, North Carolina,

Rhode Island, Virginia. Nursing Home Plans: California, Hawaii,

'* Hospital

Kansas, Kentucky, Maryland, Massachusetts, Mississippi, Montana,

Missouri, North Carolina.

New Mexico, New York, Tennessee, Washington, Wisconsin. Nurs-

ing Home Plans: Alabama, Florida, Kansas, Maryland, Nebraska,

Nevada, New York, South Carolina, South Dakota, Texas, Vermont,

inen 24234097;

He (Ul bate

. fl 213122 i 1114213

b ii 15

8 ay 1

12125 file ; 111 75

2

8

ieee

ni

changed circumstances since the base year have signifi-

cantly elevated the individual provider's costs. Sixteen

that

are reported and rates are set for a given year, generally will be

precluded from raising challenges to the legality of that methodol-

ogy. Three other States require that appeals identify particular

computations and adjustments, plainly indicating that the procedure

is intended to be used for arithmetic, not legal, challeages. Hoe

pital Plan: Nevada (appeal must also document adverse financia!

impact of rate). Nursing Home Plans: North Dakota and Utah.

* Hospital Plans: Alabama, Arkansas, California, Colorado,

Florida. Georgia, Hawaii, Idaho, Inis. Indiana, Kansas, Ken-

tucky, Maryland, Massachusetts, Michigan, Missouri, Mississippi.

Montana, Nevada, New Jersey, New Mexico, New York. North

Carolina, Ohie, Pennsylvania, Rhode Island, South Carolina, Ten-

authority to in-

by the State agency,

even if those policies do not comply with federal law.”

The number of States whose procedures appear to per-

is smal] indeed. Only

:

|

eight States have enacted such and few of

these unambiguously grant the right to challenge the

legality of ratesetting methodology.“

Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Wis-

consin, Wyoming.

21 Hospital Plans: District of Columbia, Nebraska, Oklahoma,

South Dakota, Utah. Nursing Home Plans: Louisiana, West Vir-

ginia.

22 Hospital Plans: lowa, Louisiana, Maine, Oregon, Vermont.

Nursing Home Plans: District of Columbia, Georgia, Illinois, Mon-

tana, Oklahoma, Oregon, Tennessee, Washington.

* See, eg., State Tax Comm’n v. Administrative Hearing

Comm'n, 641 S.W.2d 69, 75 (Mo. banc 1982) (administrative

agency lacks authority to invalidate properly promulgated regula-

tions: “[a)gency adjudicative power extends only to the ascertain-

ment of facts and the application of existing law thereto”).

2 Hospital Plans: Alaska, Arizona, Connecticut, Delaware, Min-

nesota, West Virginia. Nursing Home Plans: Alaska, Arizona,

Connecticut, Delaware, lowa, Minnesota, Ohio.

24

prehensive remedial scheme that would encompass review

of State ratesetting policies. Quite the contrary, HCFA’s

approval of Plans which typically preclude challenges to

the ratesetting methodology further underscores the ab-

sence of congressional intent to foreclose access to other

remedies.” |

Nor can HCFA’s power to exercise the extreme sanc-

tion of terminating federal funding for a noncomplying

Plan be regarded as part of a comprehensive review

scheme. Although the courts have found that numerous

State Plans violate the Boren Amendment, HCFA has

never sought to terminate federal funding to a State on

this basis. The Medicaid statute’s purpose of enabling

each State to provide medical assistance to the indigent

would hardly be served by ejecting a State from par-

ticipation. The benevolent goal of furnishing adequate

medical care demands that some less extreme sanction,

such as a section 1983 suit, be available to challenge

a State’s noncompliance with the Boren Amendment.

25 In the amicus brief of the state attorneys general, it is argued

that HCFA “expressly has rejected the call for private rights of

action in the regulations adopted to implement the Boren Amend-

ment on the ground that the [Medicaid] statute contained neither

mandate nor authority to provide judicial recourse for dissatisfied

providers.” Br. of Amici State of Connecticut et al. This asser-

tion is plainly wrong. In the regulatory preamble cited by the at-

torneys general, HCFA discussed comments received on “who should

adjudicate appeals.” 48 Fed. Reg. 56046, 56052 (1983). In response

to one commentor’s suggestion that HCFA should require States

to “provide judicial recourse for providers dissatisfied with State

payment rates,” the agency correctly noted that the Medicaid stat-

ute did not grant HCFA authority to require such recourse. /d.

In fact, the statute does not authorize HCFA to restrict or expand

judicial review in any way. HCFA also concluded that the regula-

tions did not restrict the right of providers to pursue State judicial

remedies after exhausting the administrative process. Id. The

agency expressed no view on the availability of a private cause

of action under section 1983 or any other provision of federal law.

Id.

II. RECOGNIZING A SECTION 1983 REMEDY WOULD

NOT OPEN THE FLOODGATES TO FEDERAL

COURT REVIEW OF INDIVIDUAL RATE DIS-

PUTES, BUT WOULD PROVIDE A MEANINGFUL

METHOD OF REMEDYING SYSTEMATIC VIOLA-

TIONS OF THE BOREN AMENDMENT

A. Availability of a section 1983 remedy has not pro-

duced a flood of Boren Amendment litigation

Every United States Court of Appeals to rule on the

question has held that Medicaid-participating health care

providers have a right under section 1983 to sue State

officials in federal court for Boren Amendment viola-

tions.“ Despite this free access to the federal courts

in the decade since the Boren Amendment was enacted,

amici have discovered only 48 reported federal cases al-

leging violations of the Boren Amendment.“ Slightly

fewer than half of the federal cases were based on a

section 1983 cause of action.“ All involved challenges to

the legality of the State’s ratesetting methodology rather

than individual rate disputes.

2° West Virginia Univ. Hosps., Inc. v. Casey, 885 F.2d 11 (3d Cir.

1989) ; Virginia Hosp. Ass’n v. Baliles, 868 F.2d 653, 658 (4th Cir.

1989), cert. granted in part, 110 S. Ct. 49 (1989); Coos Bay Care

Center v. Oregon Dep't of Human Resources, 803 F.2d 1060, 1062

(9th Cir. 1986), cert. granted, 481 U.S. 1036, vacated as moot, 484

U.S. 806 (1987) ; Nebraska Health Care Ass’n v. Dunning, 778 F.2d

1291, 1295 (8th Cir. 1985), cert. denied, 479 U.S. 1063 (1987);

AMISUB (PSL) v. Colorado Department of Social Services, 879

F.2d 789, 798 (10th Cir. 1989), petition for cert. filed, 58 U.S.L.W.

3322 (U.S. Oct. 25, 1989) (No. 89-682). Cf. Yapalater v. Bates,

494 F. Supp. 1349, 1357-58 (S.D.N.Y. 1980) (finding right of action

under prior reimbursement provision), aff'd per curiam, 644 F.2d

131 (2d Cir. 1981), cert. denied, 455 U.S. 908 (1982); Silver v.

Baggiano, 804 F.2d 1211, 1217-18 (llth Cir. 1986) (reserving

question).

27 See Appendix C.

28In most of the other cases, the issue of whether a cause of

action was available was not considered by the court. E. g., Alabama

Hosp. Ass'n v. Beasley, 702 F.2d 955 (11th Cir. 1983).

While there have been a limited number of cases aris-

ing under section 1983, in the majority of the cases in

which the court reached the issue of the legality of the

ratesetting methodology, the court found the need to

grant relief to prevent arbitrary or unlawful State

action.“ These cases demonstrate that the existence of

a private cause of action permitting providers to chal-

lenge the legality of a State’s ratesetting methodology has

not produced a flood of litigation, and no reason exists

to assume that a ruling by this Court upholding this

right would increase significantly the number of such

challenges.” Moreover, the success of many of these chal-

lenges is good evidence that this remedy is needed to as-

sure State compliance with the standard contained in

the Boren Amendment.

2° See AMISUB, 879 F.2d 789; West Virginia Univ. Hosps., 885

F.2d 11; Nebraska Health Care Assen, 778 F.2d 1291; Washington

State Health Facility Assen v. Washington Dep't of Social and

Health Services, 698 F.2d 964 (9th Cir. 1982); St. Tammany

Parish Hosp. Service Dist. v. Dep't of Health and Human Resources,

677 F. Supp. 455 (E.D. La. 1988); Children’s Memorial Hosp. v.

Illinois Dep't of Public Aid, 562 F. Supp. 165 (N.D. III. 1983);

Illinois Hosp. Assen v. Illinois Dep't of Public Aid, 576 F. Supp.

360 (N. D. II. 1983). Section 1983 has also been successfully used

by Medicaid recipients to challenge a State’s ratesetting method-

ology. Montoya v. Johnston, 654 F. Supp. 511 (W.D. Tex. 1987) ;

Thomas v. Johnston, 557 F. Supp. 879 (W.D. Tex. 1983).

% Boren Amendment litigation is extremely costly and time con-

suming, due to the necessity of obtaining detailed expert and ac-

counting reports establishing that the State’s methodology will not

result in efficiently and economically operated facilities receiving

reimbursement approximating their actual costs. This requires

analysis not only of an individual facility’s costs, but those of all

similar facilities in the State. See generally, Hamme & Kanner,

Long-Term Care Reimbursement Issues: Pro and Contra Aids for

Litigants, in 1989 Health Law Handbook (Clark Boardman Co.,

A. Gosfield, Ed. 1989). As a practical matter, it is not economically

practicable for an individual provider to initiate Boren Amend-

ment litigation simply to challenge its rate.

27

B. The absence of a remedy would permit State Plans

which contain egregious violations of the Boren

Amendment to continue in operation

To leave providers without a federal remedy for vio-

lations of the Boren Amendment would create the pros-

pect of arbitrary or unlawful State action with no effec-

tive remedy and extremely significant consequences for

hospital and nursing home providers and, hence, Medicaid

recipients. As noted above, implementation of unlawful

and inadequate rates will have an adverse impact on the

quality of services provided to the vulnerable indigent

population who require inpatient hospital or nursing

home services covered by Medicaid. That States have

implemented ratesetting methodologies which contain

egregious violations of the Boren Amendment has often

been documented in lower court cases.

Two recent circuit court decisions illustrate this prob-

lem graphically. In AMISUB (PSL) v. Colorado De-

partment of Social Services, 879 F.2d 789 (10th Cir.

1989), petition for cert. filed, 58 U.S.L.W. 3322 (U.S.

Oct. 25, 1989) (No. 89-682), the State implemented a

Plan under which a hospital’s base year Medicaid rate

was determined by taking the average Medicare per diem

reasonable cost per discharge for hospitals in a particular

peer grouping, and multiplying that figure by .88. Id.

at 791. The resulting figure then was multiplied by a

“budget adjustment factor” of .54 to arrive at the Medi-

caid rate for each facility. Id.

In effect then, under Colorado’s methodology, hospitals

would receive a per diem rate for Medicaid patients

that was less than half of the average cost that would

be deemed reasonable by Medicare for the same patient.

Expert testimony at trial established that under this sys-

tem, no Colorado hospital, no matter how efficiently and

economically operated, would be reimbursed its reason-

able costs. Id. at 798-99.“ The court concluded that such

n The court noted that while the State’s “assurances” of ade-

quate reimbursement might be “adequate for HCFA, .. at trial a

a large across-the-board reduction, based solely on bud-

getary considerations, violated the Boren Amendment.

Id. at 799."

Other ratesetting provisions may be equally violative

of the Boren Amendment. In West Virginia University

Hospitals, Inc. v. Casey, 885 F.2d 11 (3d Cir. 1989), the

court was confronted with provisions in Pennsylvania’s

Plan, which computed rates for out-of-state hospitals pro-

viding care to Pennsylvania’s Medicaid recipients dif-

ferently than for in-state hospitals providing the same

services. Rates for in-state hospitals were computed by

taking an average cost per hospital stay (based on actual

allowable costs) and adjusting that amount for each stay

by a factor designed to account for the relative severity

(cost) of the case. Id. at 16.

In contrast, rates for out-of-state hospitals were com-

puted based not on allowable costs, but on the average

of payments made to in-state hospitals (adjusted for

severity). Jd. In addition, out-of-state hospitals re-

ceived lower reimbursement for capital costs, and no

reimbursement for direct medical education expenses.

Id. The district court found that this situation resulted

in the plaintiff hospital receiving only 54 percent of its

costs of treatment to Medicaid patients, as opposed to

the 95 percent received by in-state hospitals. Id. at 25.

The Colorado and Pennsylvania Plans provide com-

pelling examples of the potential for significant harm to

hospitals and nursing homes, and ultimately to Medicaid

recipients, that can occur where rates are predicated on

party must offer evidence which supports its position.” Id. at 799.

The court found no such evidence.

32 A smaller across-the-board reduction in nursing home rates.

based solely on budgetary considerations, was invalidated in Ne-

braska Health Care Asen v. Dunning, [1984 Transfer Binder

Medicare & Medicaid Guide (CCH), 7 34,100 D. Neb. July 9, 1984)

(reductions of 14.4% for intermediate care facilities and 44% for

skilled nursing facilities), aff'd in part and vacated in part on other

grounds, 778 F.2d 1291 (8th Cir. 1985) (State did not appeal in-

validation of across-the-board reductions), cert. denied, 479 U.S.

1063 (1987).

need

poor and disabled, and there is no basis for concluding

that Congress intended to insulate from meaningful scru-

tiny the types of unlawful payment reductions that occur

when a State adopts a reimbursement methodology that

flatly violates the State’s obligations under the Boren

Amendment. As this Court noted in Rosado v. Wyman,

397 U.S. 397 (1970), it is the duty of the federal courts,

“no less in the welfare field than in other areas of the

law, to resolve disputes as to whether federal funds allo-

cated to the States are expended in consonance with

the conditions that Congress has attached to their use.”

Id. at 422-23. Under the scheme created by Congress,

the appropriate mechanism for ensuring compliance with

the Boren Amendment is a suit under 42 U.S.C. § 1983

brought by providers.

—

30

CONCLUSION

For the foregoing reasons, the judgment of the court

96

APPENDICES

10 Ht

e

iit iF 1 IF una | 1275

.

He 1173 i

11 i 1 i

10 11 RHE

Heal 11 EHR ED 15

te

1217

ral

4

fi

if

3

|

11

i

H

:

0

findings in support of its audit

the facility's cost report. Id. at 6.

ALASKA

Hospital Attachment 4.19-A). A

Id. at See. VII. pp. 11-12.

ARIZONA

Arizona does not participate in Medicaid,

a HCFA demonstration project called

Health Care Cost Containment System (“AHCCCS”).

Under this system, the exclusive means through which

Hospital (Attachment 4.19-A, TN 88-26). Providers

of hospital services are permitted to appeal their rates

only for the folowing reasons: (1) costs of improve-

ments incurred because of new certification or licensing

requirements; (2) extraordinary circumstances (fires,

floods, ete.) ; (3) program decisions of a substantive na-

ture relating to application of the payment system; or

(4) the rates are substantially below those paid during

an earlier base period. Id. at Sec. 1.09, p. 15.

Nursing Home (Attachment 4.19-D). The Plan per-

mits nursing homes to submit written appeals of any

provisions of the State Medicaid Manual (Plan) or ac-

tions resulting therefrom, to the Commissioner of Arkan-

sas Social Services. Id. Sec. 1-7. Appeals must be sub-

mitted within 30 days of notification of initial publica-

tion of a Manual provision, or an adjustment to a cost

report. Id. No procedure exists for contesting Manual

provisions after this time has elapsed.

CALIFORNIA

Hospital (Attachment 4.19-A, TN 87-16). The Plan

permits a hospital to request an administrative adjust-

ment to its interim rate. Id. at Sec. V, p. 9. However,

the Plan specifically excludes consideration of the follow-

ing:

a. The use of Medicare standards and principles of

retrospective reimbursement;

1 4

A4

b. The method for determining the input price index;

c. The use of all-inclusive reimbursement rates;

d. The use of a volume adjustment formula;

e. The use of hospital peer groups;

f. The use of percentile limits and the methods used

to compute them.

An appeal of the Department’s decision may be filed in ac-

cordance with the procedural requirements of Cal. Admin.

Code, tit. 22, Div. 3, Ch. 3, Art. 1.5. Id. at 11. The ap-

peal is limited to those items subject to an administra-

tive adjustment listed above. /d.

Nursing Home (Attachment 4.19-D, TN 88-24). The

Plan states that nursing homes will have the right to

appeal audit findings which result in adjustments to pro-

gram reimbursement or reimbursement rates. Id. at 4.

However, the Plan specifically limits reimbursement rates

to maximums set by the Plan itself, Inlotwithstanding

any other provisions” of the Plan. /d. at 1.

COLORADO

Hospital (Attachment 4.19-A). The Plan permits hos-

pitals to appeal administratively only annual “add-ons”

to the established base year rate. Id. at 1. Add-ons are

increases in budgeted costs in excess of the consumer price

index that can be justified on the basis of or resulting

from a new or expanded service, a price increase, or a

change in patient case mix. Id. Regulations applicable

to all Medicaid providers limit appeals to a provider ad-

versely affected by a finding of fact or interpretation of

rules. . . which results in a reduction in, or denial of,

specific payments.” 11 Colo. Code Regs. Sec. 8.0501 (ef-

fective 5/1/86).

Nursing Home (Attachment 4.19-D, TN 89-4). The

Plan assures that Colorado has established procedures

for nursing home rate determinations which permit pro-

A-5

viders to submit additional evidence and request prom

administrative review. Id. at 30. The —— . —

above for hospitals also apply.

CONNECTICUT

Hospital (Conn. Gen. Stat. § 17-311 (1989)). Con-

necticut hospitals may appeal any decision of the Com-

missioner of Income Maintenance in accordance with the

aforementioned statute, which empowers the Commis-

sioner to establish annual allowable costs for Medicaid

Services. Id. An “aggrieved” hospital may request a

rehearing as to any decision of the Commissioner. Id. at

§17-311(b). Items not resolved through the rehearing

are submitted to an arbitration board consisting of one

member appointed by the institution, one member ap-

pointed by the Commissioner, and one appointed by the

chief court administrator. /d.

Nursing Home (Attachment 4.19-D, TN 88-58). A

nursing home aggrieved by any decision of the Commis-

sioner of Income Maintenance may file a written request

to the Commissioner requesting a rehearing on the items

of aggrievement. Id. at Sec. 17-311-104. If items of ag-

grievement are not resolved by the rehearing, the pro-

vider can file a request for binding arbitration, which

must include a memorandum setting forth its position

and contentions concerning the items of aggrievement.

Id. at Sec. 17-311-107. The arbitration board consists of

one member appointed by the provider, one member ap-

pointed by the Commissioner, and one member appointed

by the chief court administrator from among the retired

judges. Id. The Board may reverse the department if

administrative findings, inferences, conclusions, or deci-

sions are, among other things, violative of constitutional

or statutory provisions. Id. at Sec. 17-311-112.

In contesting a rate decision, the provider may elect

to pursue an nistrative appeal in the Connecticut

„ Id. at Sec. 17

1

A-6

DELAWARE

HCFA’s copy of the State Plan contains no provision

for provider rate appeal by hospitals or nursing homes.

Appeals of “adverse actions” by the State Medicaid

agency are permitted pursuant to State Medicaid regu-

lations. Department of Social Services, Appeal Proce-

dures of Adverse Actions for Providers (4/89). Requests

for review must be mailed within 60 days of notice of

adverse action. Id. at Sec. 5.

DISTRICT OF COLUMBIA

Hospital (Attachment 4.19-A, TN 88-6). The State

Plan provides only an assurance of the existence of an

appeal procedure that allows individual providers an

opportunity to submit additional evidence and receive

prompt administrative review of rates. Id. at Sec. 9, p.

4a. In a telephone conversation with the Comptroller’s

office, we were informed that, although there are no

formal appeal procedures, hospitals are permitted to ap-

peal informally adjustments to annual cost reports.

Nursing Home (Attachment 4.19-D). The Plan per-

mits a nursing home to request a hearing before the

Office of State Agency Affairs if the provider disagrees

with a rate established by a Department of Human Serv-

ices audit. Id. at See. VII.

FLORIDA

Hospital (Attachment 4.19-A, TN 88-19). The Plan

permits a hospital the right to a hearing in response to

adjustments to its cost report resulting from an audit.

Id. at Sec. II (F), p. 8. The right to the hearing will

be in accordance with Fla. Admin. Code Ann. r. 10-2.36,

and with the Florida Administrative Procedure Act, Fla.

Stat. Ann., Sec. 120.57.

Nursing Home (Attachment 4.19-D, TN 88-3). The

same right to a hearing is available to nursing home

providers in accordance with Fla. Admin. Code Ann. r.\

10C-7.481(6), and with Fla. Stat. Ann., Sec. 420.57.

f

:

i

TH

.

|

decision is adverse to the hospital, a request

ing may be made in accordance with Chapter 500 of

Department’s Policies and Procedures Manual. /d. at

This procedure may be used to consider only: (1

in cost report figures used to determine the base rate;

(2) errors in calculation; (3) failure of the Department

to comply with its stated policies; or (4) increased costs

due to significant changes in patient care services. Id. at

10. See also Georgia Department of Medical Assistance

Medicaid Manual, Chapter 500, Sec. 505.2.

Nursing Home (Georgia Department of Medical As-

sistance Medicaid Manual, Chapter 500). Georgia permits

nursing homes to appeal the calculation of billing rates

and related cost report disallowances. Id. at Sec. 504.3.

HAWAII

Hospital (Attachment 4.19-A, TN 88-30). The Plan

permits a hospital to request reconsideration by the De-

partment of its annual rate only “in extraordinary cir-

cumstances”, or when there is a [reduction in Medi-

caid average length of stay within a facility which pro-

duced a decrease in the average cost per discharge but an

increase in the average cost per day.” Id. at III-36.

“Extraordinary circumstances” include acts of God,

changes in life and safety code or licensure requirements,

significant changes in case mix or new services occurring

subsequent to the base year. Id. In addition, subsequent

year adjustments to the facility’s initial base year rate

may not result in changes to the Plan’s rate ceiling.

Id. at III-35.

Nursing Home (Attachment 4.19-D, TN 86-17). —

Plan permits nursing homes the right to request a

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ILLINOIS

The Plan

permits a hospital to request review by the Department

te share of low income patients), or signif-

restructuring to meet new health and safety

Hospital (Attachment 4.19-A, TN 82-9).

tion, severe cash flow problems (resulting from serving a

of Public Aid of its annual rate only for errors in calcula-

disp

ican

A-10

with the Department of Human Services if dissatisfied

with a rate determination. Id. at Sec. 20, p. 12. Hear-

ings are conducted by the Department of Inspections and

Appeals. Jd. The Department of Human Services makes

a decision based on the recommendation of the Depart-

ment of Inspections and Appeals. Id.

Nursing Home (Attachment 4.19-D). If dissatisfied

with the determination of its base year allowable cost,

a nursing home may file an appeal and request for re-

consideration with the Chief of the Bureau of Medical

Services. Id. at Sec. 11, p. 3. In addition, Iowa regula-

tions permit the Department to consolidate the claims of

several providers where the sole issue involved is one of

state or federal law or policy. Iowa Admin. Code. r. 441-

7.5 (1987).

KANSAS

Hospital (Attachment 4.19-A, TN MS 88-27). A hos-

pital may obtain administrative review only upon evi-

dence of at least a 10% variation between its current

Medicaid cost and its per diem rate. Jd. at Sec. N, p. 7.

The Commissioner of Income Maintenance shall render a

decision which is appealable under Kan. Admin. Regs.,

Sec. 30-7. Id. There is no provision to contest rates (or

rate methodology, if permitted) unless the 10% criterion

is met.

Nursing Home (Attachment 4.19-D, TN MS-89-15).

The Plan for nursing homes provides a procedure for

individual providers to obtain an “exception” to their

assigned rates by submitting additional evidence demon-

strating that the provider is efficiently and economically

operated, but is being adversely affected by the Plan

payment rates. Id. at p. 20A.

KENTUCKY

Hospital (Attachment 4.19-A, TN 86-4). A hospital

may appeal a program decision only in the following cir-

cumstances: (1) addition of new and necessary services

A-11

requiring certificate of need approval; (2) major changes

in case mix or types/intensity of services; (3) costs of

improvements required by new licensing or certification

requirements; (4) extraordinary circumstances (floods,

ete.) ; substantive program decisions relating to applica-

tion of the payment system. Id. at Sec. 110, p. 110.01.

Nursing Home (Kentucky Medical Assistance Program

Reimbursement Manual, TN 84-16). Nursing homes are

permitted administrative review of program decisions

relating to the application of the policies and procedures

governing the nursing home payment system. Id. at Sec.

119, p. 119-01.

LOUISIANA

Hospital (Attachment 4.19-A, TN 84-9). The Plan

provides that hospitals may appeal their rates to the

DHHR Appeals section. Jd. at Sec. III, p. 11. An in-

formal conference is first scheduled between the hospital

and the state agency to discuss the issues of the appeal.

Id. If the informal discussion does not resolve these is-

sues, the hospital may request an administrative hearing

with the DHHR Appeals Section. Id. at p. 12. The

DHHR Appeals Section makes a recommendation to the

Secretary. The department then makes a final decision,

subject only to judicial review by the courts as provided

in the State Administrative Procedure Act, La. Rev. Stat.

Ann., Sec. 49:951. Id. at 13.

Nursing Home (Attachment 4.19-D (1)). The Plan

for nursing homes assures that the State provides an ap-

peals procedure that permits individual providers to sub-

mit additional evidence and receive prompt administra-

tive review. Jd. at p. 4. In a telephone conversation with

the Department of Health and Human Resources, how-

ever, we were informed that a provider could not appeal

a rate determination.

MAINE

Hospital (Attachment 4.19-A, TN 88-07). The Plan

assures that a provider appeals system is in place which

allows individual providers an opportunity to submit ad-

A-12

ditional evidence and request prompt administrative re-

view of payment rates. Id. at 2.

Nursing Home (Attachment 4.19-D, TN 88-14). Nurs-

ing homes may appeal audit adjustments to the Maine

Department of Human Services. On appeal, the validity

of a rate is judged “solely on the basis of its conformity

with the principles governing the determination of rates

contained in this attachment [4.19-D].” Id. at 18.

MARYLAND

Hospital (Md. Regs. Code tit. 10, Sec. 37.10 (1988) ).

A hospital may request a temporary change in rates at

any time if it has experienced a decline in net revenue

or an increase in expenses due to factors beyond its con-

trol. Id. at Sec. 10.37.10.05.

Maryland also permits a hospital to file an application

with the Health Services Cost Review Commission to re-

quest an alternative method for submitting or reviewing

its rates and charges. 10.37.10.06(A). The Executive

Director may grant a temporary approval of an alterna-

tive method of rate determination. 10.37.10.06 (B).

Nursing Home (Medical Care Programs ICF Services).

Maryland permits nursing homes to appeal only audit

findings. Jd. at pp. 608-45.

MASSACHUSETTS

Hospital (Attachment 4.19-A(2), TN 88-12). HCFA

retains two Massachusetts hospital plans, one for acute

care facilities, one for non-acute facilities.

The Plan does not contain an appeal procedure for

acute care hospitals. In a telephone conversation with

the State Rate Setting Commission, we were informed

that acute care hospitals may appeal Medicaid reimburse-

ment rates in accordance with State regulations. Mass.

Regs. Code tit. 801, Sec. 1.03 (1986). Appeals from ac-

tions or inactions on the part of the Rate Setting Com-

*

A-13

mission are permitted for the appeal of interim and final

rates. Id. at Sec. 1.03 (12) (e), (d).

The Plan for nonacute hospitals provides for appeal to

the Division of Administrative Law Appeals, pursuant to

the requirements of Mass. Gen. L. Ch. 6A, Sec. 36 and

Mass. Gen. L. Ch. 7, Sec. 4H, in two circumstances.

First, a hospital may request an increase in its allowed

costs due to costs beyond its control. Jd. at 10. Such re-

quests will be granted only if the additional costs: (1)

are due to correcting deficiencies related to hospital li-

censure or participation in Medicare or Medicaid; (2)

are generated by compliance with new, non-discretionary

regulations mandating expenses; (3) result from disaster

losses in excess of (or not covered by) insurance; (4)

are allowed in connection with a major capital expendi-

ture or substantial change in services requiring a certifi-

cate of need; (5) result from a new service; (6) result

from certain wage adjustments which are demonstrated

to be cost-effective; (7) result from an increase in pa-

tient care costs due to serving a more intensely ill patient

population. Jd. at 10-11. Second, a hospital may request

— — if there has been an arithmetic error. Id.

a . N

Nursing Home (Mass. Regs. Code tit. 114.2, Sec. 2.20

(1987)). Massachusetts reimburses certain nursing

homes through interim rates with retrospective adjust-

ments, and certain nursing homes through prospective

rates. This regulation permits both kinds of providers

to petition for an increase to their rates. Id. at Sec. 2.20,

2.21, 5.15. Petitions for increase in interim rates are

granted only for facilities with a population of more than

75 percent Medicaid patients, and only to implement cer-

tain statutory wage increases for nurses and nurse aides.

Id. at Sec. 2.20, 2.21. As to prospective rates, a provider

aggrieved by a rate of payment may file an appeal, the

validity of which will be “judged solely on the basis of

its conformity with the principles governing the determi-

A-14

nation of rates contained in” the ratesetting methodology

set in the regulations. Id. at Sec. 5.16(1) and (2).

MICHIGAN

Hospital (Attachment 4.19-A, TN 88-6). The Plan

permits a hospital to appeal its rate of payment as well

as the components used to determine the rate. Id. at Sec.

IV, p. 18. Appeal is restricted to the extent that incor-

rect data were used in calculation, except that the appeal

panel or ALJ may also hear appeals of “other items

deemed . . . to be within the scope of their jurisdiction.”

Id. An order from the Director of the Department of

Social Services states that ALJs do not have “authority

to make decisions on constitutional grounds, overrule

statutes, overrule promulgated regulations or overrule or

make exceptions to the Department policy set out in the

program manuals.” Amended Delegation of Hearing Au-

thority (April 1, 1981). ALJs are permitted to make a

recommendation to the Director of the Bureau of Admin-

istrative Hearings when they believe Department policy

to be out of conformity with case law, statute, or prom-

ulgated regulation, but there is no provision to permit a

party to appeal an ALJ’s decision on this issue. Id.

Nursing Home (Attachment, 4.19-D, TN 87-9). The

Plan provides for an informal or formal review of an

adverse action, which requires a nursing home to submit

an application for relief to the state agency within 45

days of notification. Id. at Sec. VIII, p. 1. However,

no administrative review is permitted for elements of the

program that would necessitate a change for all pro-

viders, including the “principles of reimbursement and

guidelines which define allowable costs.” Id. The same

Delegation of Authority cited above for hospitals also

applies.

MINNESOTA

Hospital (Attachment 4.19-A, TN 88-69). “Rate Ap-

peals” are taken in the first instance to the reimburse-

A-15

ment staff of the Department of Human Resources. /d.

at 9. Appeals that are not settled by reimbursement staff

are made to a five member appeals board, appointed by the

Commissioner of Human Resources, which makes recom-

mendations to the Commissioner. Jd. Hospitals may ap-

peal “a decision of the Commissioner” through Minnesota

statutes (presumably the Administrative Procedure Act).

Id.

Nursing Home (Attachment 4.19-D; Minn. R.

256B.50). A nursing home may appeal from determina-

tion of a payment rate. Id. at Subd.lc, p. 5501. Nursing

homes may challenge the validity of the Commissioner’s

rules in the court of appeals if it appears that the rule

or its threatened application impairs or threatens to im-

pair the petitioner’s legal rights. Minn. Stat. Ann., Sec.

14.44.

MISSISSIPPI

Hospital (Attachment 4.19-A, TN 81-1). The Plan

permits a hospital to appeal its rate to the Mississippi

Medicaid Commission. Id. at Sec. IV, p. 8. Appeals are

limited to new costs resulting from major changes in

case mix, the addition of new and necessary services,

use of incorrect data or calculation error, extraordinary

circumstances (riot, strike, flood, ete.). Id.

Nursing Home (Attachment 4.19-D, TN 88-1). The

plan permits a nursing home to submit a written request

for a formal hearing in response to a rate notice. Id. at

19. The appeal must be accompanied by a statement and

documents setting forth the facts which the provider

contends place it in compliance with the Commission’s

regulations. Jd. In addition, the Mississippi Medicaid

Manual states that appeals of matters relating to pay-

ment rates or reimbursement may be considered only if

not otherwise previously considered by the Division of

A-16

Medicaid under Public Hearing Procedures. Long Term

Care Manual (July 1, 1989) at p. I-7.

MISSOURI

Hospital (Attachment 4.19-A, TN 88-3/87-01). The

Plan permits a hospital to request an informal review of

actions resulting from the provisions of the Plan. Id. at

Sec. V(E), p. 10. Items which will not be subject to

review include: the use of Medicare standards and re-

imbursement principles; the method for determining the

trend factor; the use of all-inclusive prospective reim-

bursement rates; and increased cost resulting from

change of ownership. Id. at 12. In addition, the Missouri

Supreme Court has held that State administrative agen-

cies have no authority to render declaratory rulings re-

garding the validity of agency rules. State Tax Commis-

sion v. Administrative Hearing Commission, 641 S.W.

2d 69, 75 (Mo. bane 1982). See Mo. Code Regs. tit. 13,

Sec. 70-10.010 (8/89) (ratesetting methodology as

agency rule).

Nursing Home (Attachment 4.19-D, TN 88-22). The

Plan permits a nursing home to obtain reconsideration

of its rate by an advisory committee only for costs re-

lated to changes in the facility's case mix, or costs re-

sulting from other extraordinary circumstances. Id. at

51. The Plan prohibits administrative review of the trend

factor, the use of prospective rates, or the provider’s

initial cost base. Jd. The hospital limitation cited above

also applies.

MONTANA

Hospital (Mont. Admin. Rules, Sec. 46.12.506-.510).

Hospitals have the opportunity for a fair hearing, in

accordance with the procedures set forth in Mont. Admin.

R. 46.2.202, only to contest the computation of their

interim payment rates (or final settlements for capital

and medical education costs), coding errors resulting in

incorrect DRG assignment and determination of medical

A-17

necessity, outlier status, and readmission/transfer deci-

sions. Id. at R. 46.12.510.

Nursing Home (Attachment 4. 19-D, TN 88 (10) 19). A

nursing home may request an administrative review of the

Department of Social and Rehabilitative Services’ written

findings, recommendations, or rate. Id. at Sec. 46.12.1210,

p. 23. If the decision of the review is adverse to the

provider, an appeal for a fair hearing can be made to

the Department. Jd. The hearing officer will render a

proposed decision, and the provider is permitted a fur-

ther appeal by filing a notice of appeal with the hearing

officer to be forwarded to the Department Director. Id.

at 23. Judicial review of the decision of the Department

Director is permitted under the State Administrative Pro-

— Act, Title 2, chapter 4, part 7, Mont. Code Ann.

NEBRASKA

Hospital (Attachment 4.19-A, TN MS-89-6). The Plan

assures that a hospital may submit additional evidence

and request prompt administrative review of its pro-

spective rate. Id. at 8a. The hospital is also permitted

to utilize this procedure to appeal an adjustment to its

rate.

Nursing Home (Attachment 4.19-D, TN MS-84-3).

The Plan permits a nursing home to request an admin-

istrative appeal of a final decision or inaction in the

process for determining the facility’s allowable cost. Id.

at Sec. 12-011.13, p. 26.

NEVADA

Hospital (Nevada State Welfare Division, Medicaid

Services Manual, MTL 8/89). A hospital is permitted

to appeal its rate. Id. at Sec. 206.2. The appeal must

include the specific rate adjustment requested with sup-

porting documentation and documentation of adverse fi-

nancial impact. Id. In a telephone conversation with the

A-18

Welfare Division of the Department of Human Resources,

we were informed that this procedure may not be used

to appeal the ratesetting methodology.

Nursing Home (Nevada SNF & ICF Medicaid Man-

ual). Nevada permits providers to appeal audit adjust-

ment settlements. Jd. at Sec. 506.2.

NEW HAMPSHIRE

Hospital. The Plan contains no provision for appeals

by hospitals. In a telephone conversation with the State

Medicaid Director, we were informed that because hos-

pitals are reimbursed on a diagnosis-related group

(“DRG”) basis, there are no appeal procedures in place.

Nursing Home (Attachment 4.19-D, TN 87-10). The

Plan provides a procedure for individual nursing homes

to appeal unresolved disputes that may arise concerning

application of the principles of reimbursement defined in

the Plan. Id. at Sec. 9999.11, p. 38.

NEW JERSEY

Hospital (1983 Standard Hospital Accounting and Rate

Evaluation Rate Review Guidelines). Hospitals may file

appeals of their payment rates with Health Economics

Services, Department of the Public Advocate. Id. at G-17.

The purpose of the appeal is “to determine if the Guide

lines were properly interpreted and executed.“ Id. at G-3.

The Plan also provides a provision which permits hos-

pitals faced with unpredictable and uncontrollable changes

in costs to submit a request for adjustment to the Com-

missioner. Id. at G-18.

Nursing Home (Attachment 4.19-D, TN 86-1). The

Plan provides a two level appeal process for nursing

homes that believe that, “owing to an unusual situation,

the application of these guidelines results in an inequity.”

Id. at Sec. 3.20, p. C-36. A Level I appeal is heard by

representatives from the Department of Health (“DOH”)

and the Department of Human Services (“DHS”). The

A-19

recommended solution will ultimately be forwarded to the

Director, Division of Medical Assistance and Health Serv-

ices for approval. This level is limited to matters pecu-

liar to individuai providers.

If the provider is not satisfied with the results of the

level I appeal, it may request a hearing before an Ad-

ministrative Law Judge (Level II). At Level II, the

burden is on the provider to establish its entitlement to

benefits under the State’s Cost Accounting and Rate

Evaluation System Guidelines (the State’s ratesetting

methodology). Jd. at C-38.

NEW MEXICO

Hospital (Attachment 4.19-A, TN 89-01). A hospital

may appeal its rate and its application only if eireum-

stances beyond the hospital’s control have caused rates to

* * least 5% below actual allowable costs. Id. at Sec.

„P. 2.

Nursing Home (Attachment 4.19-D, Part 1, TN 88-6).

The Plan permits a nursing home to file a request for

reconsideration of the base year rate determination (or

final settlement in the case of a change in ownership).

Id. at Sec. IX, p. 17. The Medical Assistance Division

Director delivers the request and his response to the Sec-

retary of the Department of Human Services, who is em-

powered (but not required) to hold a hearing. The Sec-

retary’s final determination “shall be made in accordance

with applicable provisions of the Plan.” Jd. at 18.

NEW YORK

Hospital (Attachment 4.19-A ( I), TN 85-34). The ap-

peal procedure provided in the State Plan permits a hos-

pital to appeal audit adjustments to its cost report, as

to those items of the audit report that present a factual

issue. Id. at 10. Pursuant to State Medicaid regulations,

the State Commissioner of Health may consider rate revi-

sions only for the following reasons:

:

4

9

0

7

*

bs

7

1

a

N

A-20

(1) mathematical or clerical errors in the rate cal-

culation process, or in the development of [peer]

groups,

(2) mathematical or clerical errors in data submit-

ted by the facility;

(3) increases in the operating costs of a facility re-

sulting from additional or expanded programs,

staff or services mandated for the facility by

the Commissioner ; .

(4) increases in the operating expenses of a facility

resulting from capital renovations, expansion,

replacement or inclusion of programs, staff or

services approved by the Commissioner through

a certificate of need process; |

for relief for intensity appeals, atypica

* 3 of stay penalties, specialty hospital

and physicians’ base to base noncomparability of

cost data, nonprojectable capital, waiver of un-

funded depreciation, return on investments of

proprietary hospitals, and adjustment in target

volume;

(6) the reduction of costs related to the elimination

of hospital inpatient service;

(7) requests for relief from the ceiling provisions

(8) requests for waivers of minimum utilization

standards; and

for reimbursement of costs which were

= oS ae in the base year upon which the

rate was established.

N.Y. Comp. Code R. Regs. tit. 10, Sec. 86-1.17 (a) (1)-

(9). The decision of the Commissioner is final unless a

hearing is requested with a rate review officer. Id. at

Sec. 86-1.17(b). The rate review officer may grant or

deny the request for a hearing. Id. at Sec. 86-1.17(c)

(2). The rate review officer shall make a recommenda-

A-21

tion to the Commissioner of Health for final approval or

disapproval. Id. at Sec. 86.1-17(c) (3).

Nursing Home (Attachment 4.19-D, Part I, TN 86-4).

The Plan permits a nursing home to appeal rate deter-

minations only for increased costs resulting from utiliza-

tion above 90 percent of bed capacity for a period of six

months, errors in the cost and/or statistical data, sig-

nificant new required or approved cost increases, or other

changed circumstances. Id. at Sec. 86-2.14, p. 53.

NORTH CAROLINA

Hospital (Attachment 4.19-A, TN 88-17). Hospitals

may request reconsideration of rate determinations by

the Division of Medical Assistance. Id. at 2. Operating

(as opposed to capital) rate appeals are considered only

on the basis of additional cost of essential new services

or changes in case mix, and even an adjusted rate cannot

exceed the rate limits set by the Plan itself. Id.

Nursing Home (Attachment 4.19-D, TN 88-15). The

Plan permits a nursing home to appeal rate determina-

tions in accordance with the procedures set forth in N.C.

Admin. Code Tit. 10, r. 26.0200. (now r. 26K.000).

Id. at .0106, p. 15. A rate may be adjusted on appeal

only if the provider can demonstrate that an adjustment

is necessary to protect the health and safety of its pa-

tients and to sustain its financial viability. Id. The ad-

justed rate may not exceed the maximum rate estab-

lished in the Plan itself. Id.

NORTH DAKOTA

Hospital (Attachment 4.19-A, TN 87-13). The Plan

merely assures that appeal procedures for hospital pro-

viders are in place and remain unchanged. In a tele-

phone conversation with the State Medical Services

Division, we were informed that there are no formal

procedures in place for hospitals to appeal rate deter-

minations.

A-22

Nursing Home (Attachment 4.19-D, TN 87-10). The

Plan provides that a nursing home may appeal a rate

determination to the Referee Supervisor, Department of

Human Services. Id. at Sec. 75-02-06-17. Appeals are

limited to those including a computation and the dollar

amount which reflects the party’s claim as to the cor-

rect computation and dollar amount for each disputed

item. Id.

OHIO

Hospital (Attachment 4.19-A, TN 87-13). The Plan

specifically excludes from the appeals process review of

the methodology used to determine rates. Ohio Admin.

Code, Sec. 5101 :3-2-0712(E), p. 11.

Nursing Home (Attachment 4.19-D, TN 80-16). The

appeal procedures in the Plan permit nursing homes an

opportunity for a hearing under Chapter 119 of the Re-

vised Code (Administrative Procedures Act) to contest a

final fiscal audit. Ohio Admin. Code, Sec. 5101:3-1-57.

Administrative action not subject to hearings under

Chapter 119 may be reconsidered by the appropriate divi-

sion chief upon written request by the provider to the

Director of the Ohio Department of Public Welfare. Id.

OKLAHOMA

Hospital (Attachment 4:19-A, TN 86-17). The Plan

provides an assurance that providers of hospital services

may submit a request for rate review io the Director of

the Department of Human Services for consideration and

a final decision. Id. at p. 2. The Plan also indicates that

providers are allowed an opportunity to submit additional

evidence and a prompt administrative review regarding

the appropriateness of the payment rate will be con-

ducted. Id.

Nursing Home (Medical Services Provider Manual).

Oklahoma permits nursing homes to request review of

nursing home payment rates to the Director of the De-

partment of Human Services. Id. at Ch. 1, p. 12. The

A-23

State also provides that facilities are allowed to submit

additional evidence and receive prompt review of the

appropriateness of the rate. Id.

OREGON

Hospital (Attachment 4.19-A, TN 88-17). Under the

Plan, hespitals may request an appeal or exception to any

State decision affecting payment rates pursuant to Or.

Admin. R. 461-13-191 through 461-13-225. Jd. at 13.

These regulations, which apply to hospitals and nursing

homes, limit reconsiderations to: (1) individual institu-

tional provider payment ratesetting; (2) issues related

to prepaid capitated contracts; or (3) any other issues

deemed appropriate by the ageney. Or. Admin. R. 461-13-

191 (2). As the only specific provision relating to rate-

setting, the first clause should preclude the more general

language of the third clause from authorizing broad-

based appeals.

Nursing Home (Attachment 4.19-D, Part 1, TN

87-34). The Plan states that a nursing home may appeal

interim rates or year end settlements to the Senior Serv-

ices Division. Id. at Sec. VI, p. 6. The hospital regula-

tions described above also apply.

PENNSYLVANIA

The State Plan contains no provision for appeals by

hospitals or nursing homes. Pennsylvania’s administra-

tive regulations furnish providers a fair hearing process

for certain medical assisti.nce decisions. 55 Pa. Code

§ 275.1(a), p. 275-1 (May, 1989). The regulations spe-

cifically preclude administrative hearing officers from

rendering a decision on the validity of a Departmental

regulation, and from invalidating or modifying a regu-

lation. Id. at Sec. 275.4(h), p. 275-21.

RHODE ISLAND

Hospital ( Attachment 4.19-A). The Plan provides a

statewide “maxicap” on hospital operating expenses. Id.

A-24

at 31. This amount is negotiated annually by representa-

tives of the State and participating hospitals prior to

commencement of the new rate year. While individual

hospital budgets may be adjusted (through mediation or

arbitration between a provider and the State), see id. at

46-50, the aggregate total of all hospital expenses in the

state may not exceed this ceiling. Jd. at 31.

Nursing Home (Principles of Reimbursement for

Skilled Nursing and Intermediate Care facilities, TN

88-01). The Plan permits a nursing home to request a

review of computation of the facility’s assigned rate if

the provider is not in agreement with the base year or

with application of the State’s Principles of Reimburse-

ment for the applicable calendar years. Id. at 16.

SOUTH CAROLINA

Hospital (Attachment 4.19-A, TN 87-10). Hospitals

may have their rates reconsidered only if one of the fol-

lowing has occurred since the base year: (1) change in

case mix; (2) error in calculation; (3) extraordinary

circumstances. Id. at 25-26. The Plan specifically pro-

hibits reconsideration (appeal) of the State’s rate meth-

odology. Id. at 26.

Nursing Home (Attachment 4. K P, TN 87-]4). The

Plan permits nursing homes to appea a final audit

determination in connection with a desk review of the

provider’s cost report. Id. at 8.

SOUTH DAKOTA

Hospital (Attachment 4.19-A, TN 88-12). The Plan

assures that the State Department of Social Services

has administrative review procedures to meet the need

for provider appeals required by 42 C.F.R. § 447.258

sic. ]. Id. at 4.

Nursing Home (S. D. Admin. R. 67:16:04 :07.02

(19890). South Dakota regulations permit a facility to

A-25

appeal only a disallowed expenditure or adjustment based

on a Department audit of its cost report. Id.

TENNESSEE

Hospital (Attachment 4.19-A, TN 88-15). The Plan

lacks a specific appeal procedure, but adjustments to a

facility’s rate are permitted only for errors in computa-

tion, additional capital expenditures pursuant to a certi-

1 of need, or significant changes in case mix. Id. at

p. 10.

Nursing Home. Tennessee's State Plan contains no pro-

vision for rate appeals by nursing home providers. The

State has no published procedures, but permits appeal of

specific rates informally through the Comptroller of the

Treasury, and formally through the State Administrative

Procedures Act.

TEXAS

Hospital (Attachment 4.19-A, TN 89-20). Hospitals

are permitted to appeal individual claims (as specified

in the State Plan), mechanical, mathematical, and data

entry error in base year claims data, and incorrectly

computed subsequent adjustments to the hospital’s base

year claims data. Id. at 5-7. The Plan expressly pre-

cludes appeal of the prospective payment methodo

used by the State. Jd: at 7. oad

Nursing Home (Attachment 4.19-D, 85-2). The Plan

assures that an appeals procedure for nursing home pro-

viders is available to contest any cost report disallow-

ance. Id. at 2.

UTAH

Hospital (Attachment 4.19-A, TN 89-11). The Plan

assures that the State has administrative review proce-

dures to handle provider appeals as required by 42 C. F. R.

§ 447.253 (e). Id. at Sec. 193.

Nursing Home (Attachment 4. 19-D, TN 88-28). The

Plan states that a nursing home may appeal an audit

A-26

settlement or a revised payment rate. Id. at Sec. 920, p.

14. An appeal must identify a specific audit adjustment

or rate calculation. Jd. The purpose of the appeal proce-

dure is to allow individual providers an opportunity to

submit additional evidence and receive prompt adminis-

trative review, with respect to such issues as the agency

determines appropriate, of payment rates. Jd. at 930.

VERMONT

Hospital (Attachment 4.19-A). The Plan merely as-

sures that appeals of the rates set are allowed.

Nursing Home (Attachment 4.19-D, TN 88-11). The

Plan permits a nursing home to submit an appeal to the

Division of Rate Setting. Appeals are limited to errors

in the calculation of prospective rates. Id. Sec. 209. A

party aggrieved by a final order of the Division has the

option of appeal to the Vermont Supreme Court, trial de

novo in superior court, or a hearing conducted by an ac-

countant appointed by the Secretary of Human Services.

Vt. Stat. Ann. tit. 33, Sec. 195.

VIRGINIA

Hospital (Attachment 4.19-A). The Plan specifically

prohibits appeal of the use of Medicaid principles of re-

imbursement to determine reimbursement of costs (other

than operating costs for inpatient care), the calculation

of the initial group ceilings on allowable operating costs

for inpatient care, and the use of the Consumer Price

Index as a prospective rate escalator. J.A. 33.

Nursing Home (Attachment 4.19-D, TN 86-11). Nurs-

ing homes may appeal the interpretation and application

of the Plan’s principles of reimbursement. Id. at Sec.

3.3, p. 33. The Plan specifically prohibits appeal of the

principles of reimbursement themselves. Id. at Sec. 3.1,

p. 32.

A-27

WASHINGTON

Hospital (Division of Medical Assistance, Inpatient

Hospital Rate Appeal, effective April 1, 1986). Wash-

ington permits hospitals to appeal their rates by submit-

ting a written notice, including a statement of the issue

being appealed and the requested re-calculation of the

rate. Id. at 1. The procedure allows appeals of compu-

tation errors, errors in cost report data, or changes in

case-mix or cost apportionment. Id.

*

Nursing Home (Attachment 4.19-D, TN 87-18). The

Plan permits a nursing home to request a revision of its

rate at any time. Id. at See. IV, p. 5. The provider

may appeal first through an administrative review con-

ference. Id. If the decision at the administrative review

conference is adverse to the provider, a request for a

fair hearing may be made in accordance with the Admin-

istrative Procedure Act, Wash. Rev. Code, Sec. 34.04. Id.

WEST VIRGINIA

Hospital (Department of Human Services, Medicaid

Program Regulations, Chapter 700). State Medicaid

Program regulations (applicable to all Medicaid provid-

ers) permit a provider to obtain administrative review

through an “informal conference,” during which the pro-

vider may present its case, provide additional informa-

tion bearing on administrative action, or receive clarifica-

tion or explanation of relevant policy. Id. at Sec. 764,

p. 5. If dissatisfied, the provider may proceed to a for-

mal hearing where the findings of fact and conclusions

of law arrived at below may be challenged. Id. at Sec.

765.1, p. 6. Judicial review of this decision i

Id. at Sec. 765.3, p. 6. oie.

Nursing Home (Attachment 4.19-D, TN 86-7). The

Plan contains only an assurance that there is an appeals

or exceptions procedure for review of payment rates that

allows individual providers to submit additional informa-

tion and receive prompt administrative review. Id. at 7.

A-28

The Medicaid regulations described above also apply to

nursing homes.

WISCONSIN

Hospital (Attachment 4.19-A) The Plan assures that

the State provides an appeal mechanism that allows

providers the opportunity to submit additional evidence

and to request prompt administrative review of payment

rates. Jd. at 1. A hospital may seek a rate adjustment

only for inappropriate calculation of rates (including

clerical errors) or significant change in patient mix to

include more low-income patients. Id. at 16. The Plan

defines “inappropriate calculation of rates” to mean the

application of the ratesetting methods to incomplete or

incorrect data. Id.

Nursing Home (Attachment 4.19-D, TN 89-0011). The

Plan provides that a Nursing Home Appeals Board is

available for redress in the event that a facility has

extraordinary fiscal circumstances. Id. at Sec. 1.400.

Providers also are permitted to appeal a final ratesetting

action. Id. at Sec. 1.700. The Plan further provides

that a nursing home may request an administrative

review of cost-finding decisions. Jd. at Sec. 1.800.

WYOMING

HCFA’s copies of the Plan contain no provision for

rate-related appeals by hospitals or nursing homes. The

State’s Rules for Medicaid Administrative Hearings are

separately printed, and apply to all Medicaid providers.

Providers may appeal “adverse actions.” Id. at Sec. 4(a),

p. 1. The rules specifically state that the term adverse

action “does not include an appeal of ratesetting meth-

odology.” Id.

B-1

APPENDIX B

Classification of Procedures for

Rate-Related Appeals By Medicaid Providers

In this Appendix, amici classify the procedures for

rate-related appeals by Medicaid providers (hospitals

and nursing homes) according to a number of relevant

categories. States in which the procedure contains limi-

tations fitting more than one category are listed only

once, and the States in which we were unable to locate

a procedure (hospital: New Hampshire, North Dakota)

are not included. More detailed information on the rules

of each jurisdiction and citations to these rules are fur-

nished in Appendix A.

B-2

) L States In Which Appeals Are Limited To Correction Of Errors Or Changed

Circumstances

Limitation States Total

Nursing

Hospital Home

A. Audit adjustments to

or factual findings

in cost reports,

errors in calculation

or computation

1. Hospital Florida, IIlinois“, Indiana,

Massachusetts*, Mississippi*,

Montana, New York*,

Tennessee“, Washington“.

Wisconsin“ 10

2. Nursing Home Alabama, Florida, Maryland.

Nebraska, Nevada, New Vork“,

South Carolina, South Dakota.

Texas, Vermont, Wisconsin“ 11

B. Changed circumstances

(patient case- mix.

new services or

capital expenditures,

extraordinary circum-

stances) since base

year

1. Hospital Arkansas, Colorado, Kansas,

Kentucky, Maryland, New Mexico 6

TOTALS 16 12

* Indicates procedure permits appeals under both A and B.

B-3

II. States In Which Appeals Of Rate Methodology Specifically Prohibited

Limitation States

A. No appeal of

principles of

reimbursement or

rate methodology

1. Hospital Alabama, Idaho, Michigan,

Ohio, Pennsylvania, South

Carolina, Texas, Wyoming

2. Nursing Home Idaho, Michigan,

Pennsylvania, Virginia,

Wyoming

B. No appeal of key

elements of rate

methodology (e.g.,

inflation factor

or rate ceilings)

1. Hospital California, Hawaii,

Missouri, North Carolina,

Rhode Island, Virginia

2. Nursing Home California, Hawaii,

Missouri, North Carolina

New Jersey, Georgia

Indiana, Maine, Massachusetts,

Mississippi, New Jersey,

New Mexico

Colorado, New Hampshire,

Kentucky, Rhode Island

Total

Nursing

Hospital Home

16 19

B-4

III. States In Which Particular Limitations Preclude Challenges To Ratesetting

Methodology

Limitation

A. Appeals must be

brought within

specified time

of adverse

action b

1. Nursing Home

B. Appeals must

identify parti-

cular computations

and adjustments

contested

States Total

Nursing

Hospital Home

Arkansas 1

1. Hospital

2. Nursing Home

TOTALS

Nevada 1

North Dakota, Utah

B- 5

IV. States In Which Procedures Limited To Appeal Of Rates Or Rate Deter

minations

Limitation States

A. Provider permitted

to present new

evidence and

receive review of

payment rates

1. Hospital Distriet of Columbia,

Maine, Nebraska, Oklahoma,

South Dakota, Utah

2. Nursing Home

B. Provider permitted

to appeal rate or

rate determination

1. Hospital

2. Nursing Home

TOTALS

Louisiana, West Virginia

Iowa, Louisiana,

Oregon, Vermont

District of Columiba,

Georgia, Illinois,

Montana, Oklahoma,

Oregon, Tennessee,

Washington

Total

Nursing

Hospital Home

10 10

B-6

v. States In Which Appeal Of Rate Methodology May Be Permitted By Rule

Rule States

A. Provider may appeal

action or decision

of rate commission

1. Hospital Alaska, Arizona,

Connecticut, Delaware,

Minnesota

2. Nursing Home Alaska, Arizona,

B. Provider may appeal

validity or

legality of rule

Connecticut, Delaware

1. Hospital

2. Nursing Home

C. Provider may appeal

administrative

action not

otherwise provided

for by letter

West Virginia

Iowa, Minnesota

1. Nursing Home

TOTALS

Ohio

Total

Nursing

Hospital Home

E

2

C-1

APPENDIX C

List of Reported Federal Cases in Which Violations

of The Boren Amendment Have Been Alleged '

AMISUB (PSL) v. Colorado Dept. of Social Services, 879

F.2d 789 (10th Cir. 1989), petition for cert. filed, 58

U.S.L.W. 3322 (U.S. Oct. 25, 1989) (No. 89-682);

Hoodkroft Convalescent Center Inc. v. New Hampshire

Division of Human Services, 879 F.2d 968 (Ist Cir.

1989) ;

West Virginia Univ. Hosps. Inc. v. Casey, 885 F.2d 11

(3d Cir. 1989);

Colorado Health Care Ass’n v. Colorado Dep't of Social

Services, 842 F.2d 1158 (10th Cir. 1988) ;

Wisconsin Ass’n v. Revitz, 820 F.2d 863 (7th Cir. 1987);

Wilmac Corp. v. Bowen, 811 F.2d 809 (3d Cir. 1987);

Coos Bay Care Center v. Oregon Dep’t of Human Re-

sources, 803 F.2d 1060 (9th Cir. 1986), cert. granted,

481 U.S. 1036, vacated as moot, 484 U.S. 806 (1987);

Nebraska Health Care Ass’n v. Dunning, 778 F.2d 1291

(8th Cir. 1985), cert. denied, 479 U.S. 1063 (1987) ;

United Hosp. Center, Inc. v. Richardson, 757 F.2d 1445

(4th Cir. 1985) ;

Hillhaven Corp. v. Wisconsin Dep’t of Health and Social

Services, 733 F.2d 1224 (7th Cir. 1984) ;

Oberlander v. Perales, 740 F.2d 116 (2d Cir. 1984) ;

Alabama Hosp. Ass’n v. Beasley, 702 F.2d 955 (11th

Cir. 1983) ;

Mississippi Hosp. Ass’n, Inc. v. Heckler, 701 F.2d 511

(5th Cir. 1983) ;

1 Based on a search of West’s Federal Reporters, the Medicare

& Medicaid Guide (CCH), WESTLAW, and LEXIS.

C-2

Hadley Memorial Hosp. Inc. v. Schweiker, 689 F.2d 905

(10th Cir. 1982) ;

Washington State Health Facility Ass’n v. Washington

Dep’t of Social and Health Services, 698 F.2d 964 (9th

Cir.1982) ;

Charleston Memorial Hosp. v. Conrad, 693 F.2d 324 (4th

Cir. 1982) ;

Chicago Osteopathic Medical Centers v. Duffy, No. 88-C-

1174 (N. D. Ill. Oct. 27, 1989) (WESTLAW, Allfeds

database) ;

Pinnacle Nursing Home v. Axelrod, 719 F. Supp. 1173

(W.D.N.Y. 1989) ;

Illinois Health Care Ass’n v. Suter, 719 F. Supp. 1419

(N. D. III. 1989);

461 Bluff Manor, Inc. v. Reagen, 713 F. Supp. 1535

(W. D. Mo. 1989);

In re Saint Joseph's Hosp., 103 Bankr. 643 (Bankr. E. D.

Pa. 1989);

SSM Healthcare Systems v. Reagen, 681 F. Supp. 625

(W.D. Mo. 1988) ;

Friedman v. Perales, 668 F. Supp. 216 (S.D.N.Y. 1987),

aff'd 841 F.2d 47 (2d Cir. 1988);

Vantage Healthcare v. Virginia Board of Medical As-

sistance Services, 684 F. Supp. 1329 (E.D. Va. 1988);

St. Tammany Parish Hosp. Service Dist. v. Dep’t of

Health and Human Resources, 677 F. Supp. 455 (E.D.

La. 1988) ;

Bethany Medical Center v. Harder, 693 F. Supp. 968 (D.

Kan. 1988), opinion amended, No. Civ. A. 85-2415-0

(D. Kan. July 1, 1988) ;

Montoya v. Johnston, 654 F. Supp. 511 (W.D. Tex.

1987) ;

Mary Washington Hosp., Inc. v. Fisher, 635 F. Supp. 891

(E.D. Va. 1985) ;

C-3

— Inc., v. Heintz, 612 F. Supp. 81 (D. Conn.

Hillhaven Corp. v. Wisconsin Dep’ ocial

\ pt of Health and S

Services, 634 F. Supp. 1313 (E.D. Wis. 1986) ;

— 2 v. Perales, 616 F. Supp. 1363 (S. D. N. v.

Hulburn v. Commissioner, Connecticut Dep’

| , pt of Income

Maintenance, No. H-82-200 (D. Conn. July 17, 1985)

(WESTLAW, Allfeds database) ;

Florida Nursing Home Ass’n v. Paige, 596 F

(S.D. Fla. 1984); * Supp. 1152

Illinois Council on Long Term Care v. Miller

. 1 ;

Supp. 1140 (N.D. III. 1983);

Troutman v. Cohen, 588 F. Supp. 590 (E. D. P

ö Supp. D. Pa. 1

aff'd, 755 F. 2d 924 (3d Cir. 1984); *

In re Greenwald, 48 Bankr. 263 (S. D. N. v. 1984);

Illinois Council on Long Term Care v. Coler, Nos. 83

. 4 . 83-C-

4812, 83-C-5245, 83-C-6574 (N. D. III. Sept. 24, 1984)

(WESTLAW, Allfeds database) ;

New York City Health and Hosps. C v. Heckler

F. Supp. 226 (S. D. N. V. 1984) : N *

Fort Tryon Nursing Home v. Perales, 592 F. Su

(S.D.N.Y. 1984) ; *, GEE F. Supp. 818

California Ass’n of Bioanalysts v. Rank

1342 (C. D. Cal. 1983 eb a

In re Park Nursing Center, Inc., 28 B

E. D. Mich. 1983) ; 28 Bankr. 798 (Bankr.

Thomas v. Johnston, 557 F. Supp. 879 (W.D. Tex. 1983) j

Children’s Hosp. of Philadelphia v. Secreta

. . ry of De p't

of Public Welfare, 568 F. Supp. 1001 (E.D. Pa. 1983) :

= C-4

Michigan Hosp. Ass’n v. Department of Social Services,

555 F. Supp. 675 (E.D. Mich. 1983) ;

Children’s Memorial Hosp. v. Illinois Dep’t of Public Aid,

562 F. Supp. 165 (N.D. Ill. 1983) ;

California Hosp. Ass’n v. Schweiker, 559 F. Supp. 110

(C.D. Cal. 1982), aff'd, 705 F.2d 466 (9th Cir. 1983);

Illinois Hosp. Ass’n v. Illinois Dep’t of Public Aid, 576 F.

Supp. 360 (N.D. III. 1983);

Coalition of Michigan Nursing Homes, Inc. v. Dempsey,

537 F. Supp. 451 (E.D. Mich. 1982);

Massachusetts Hospital Ass’n, Inc. v. Harris, 500 F.

Supp. 1270 (D. Mass. 1980).

D-1

APPENDIX D

Listing of Additional Amici Curiae

Affiliates of the American Health Care Association:

Alabama Nursing Home Association

Health Association of Alaska

Arizona Health Care Association

Arkansas Health Care Association

California Association of Health Facilities

Colorado Health Care Association

Connecticut Association of Health Care Facilities

Delaware Health Care Facilities Association

District of Columbia Health Care Association

Florida Health Care Association

Georgia Health Care Association

Healtheare Association of Hawaii

Idaho Health Care Association

Illinoie Health Care Association

Indiana Health Care Association

Iowa Health Care Association

Kansas Health Care Association

Kentucky Association of Health Care Facilities

Louisiana Health Care Association

Maine Health Care Association

Health Facilities Association of Maryland

Massachusetts Federation of Nursing Homes, Inc.

Health Care Association of Michigan

Care Providers of Minnesota

Mississippi Health Care Association

Missouri Health Care Association

Montana Health Care Association

Nebraska Health Care Association

Nevada Health Care Association

New Hampshire Health Care Association

New Jersey Association of Health Care Facilities

New Mexico Health Care Association

New York State Health Facilities Association

North Carolina Health Care Association

D-2

North Dakota Long Term Care Association

Ohio Health Care Association

Oklahoma Nursing Home Association

Oregon Health Care Association

Pennsylvania Health Care Association

Rhode Island Health Care Association

South Carolina Health Care Association

South Dakota Health Care Association

Tennessee Health Care Association

Texas Health Care Association

Utah Health Care Association

Vermont Health Care Association

Washington Health Care Association

West Virginia Health Care Association

Wisconsin Association of Nursing Homes

Wyoming Health Care Association

Affiliates of the American Association of Homes for

the Aging:

Arizona Association of Homes for the Aging

Association of Massachusetts Homes for the Aging

Association of Ohio Philanthropic Homes and

Housing for Aging

California Association of Homes for the Aging

Colorado Association of Homes and Services for

the Aging

Connecticut Association of Non-Profit Facilities

for Aged

Florida Association of Homes for the Aging

Georgia Association of Homes and Services for the

Aging

Illinois Association of Homes for the Aging

Indiana Association of Homes for the Aging

Iowa Association of Homes for the Aging

Kansas Association of Homes for the Aging

Kentucky Association of Homes for the Aging

Louisiana Association of Homes and Services for

Aging

D-3

Maryland Association of Non-Profit Homes for

the Aging.

Michigan Non-Profit Homes Association

Minnesota Association of Homes for the Aging

Missouri Association of Homes for the Aging

Montana Association of Homes for the Aging

Nation’s Capital Area Association of Homes for

the Aging

New Jersey Association of Non-Profit Homes for

the Aging

New York Association of Homes and Services for

the Aging

North Carolina Association of Non-Profit Homes for

the Aging

North Dakota Nursing Home Association

Oregon Association of Homes for the Aging

Pennsylvania Association of Non-Profit Homes for

the Aging

Rhode Island Association of Facilities for the Aged

South Dakota Association of Homes for the Aging

Texas Association of Homes for the Aging

Virginia Association of Nonprofit Homes for

the Aging

Washington Association of Homes for the Aging

Wisconsin Association of Homes and Services for

the Aging