Opposition Brief — Children's Healthcare Is a Legal Duty, Inc. v. McMullan

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FIL

. [WAR 2 200

No. 00-914

In the Supreme Court of the Diniten Stites |

CHILDREN’S HEALTHCARE ISA LEGAL DUTY,

INC., ET AL., PETITIONERS

MICHAEL MCMULLAN, ACTING DEPUTY

ADMINISTRATOR, HEALTH CARE FINANCE

ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

STUART E. SCHIFFER

Acting Assistant Attorney

General

MICHAEL JAY SINGER

LOWELL V. STURGILL JR.

Attorneys

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTION PRESENTED

Section 4454 of the Balanced Budget Act of 1997,

Pub. L. No. 105-33, 111 Stat. 426-482, allows individuals

who have sincere religious objections to receiving

medical care to obtain Medicare and Medicaid coverage

for non-medical health care services, such as bed and

board and nursing services, incurred in religious non-

medical health care institutions. The question pre-

sented is:

Whether, by allowing individuals with religious

objections to medical care to receive the same com-

pensation for non-medical health care services routinely

enjoyed by Medicare and Medicaid beneficiaries as part

of their medical treatment, Section 4454 violates the

Establishment Clause.

(1)

TABLE OF CONTENTS

Page

STINET TIT ccnsesrnceetdcnsedinttishedditincsaadpisasnobniatinneenmmiciasaiament on l

IIIT ssialscslasieesiihusanliiienibiadalapudiieslaitihammasdeitiatt ccc 1

IunarnnTTIID ‘seiiebcciapeemnsveintoncansitninictsiiSinduittenasbiedbeninasiastiad cdi 2

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Sus eaanIIT i desttcabdssuibinedtebinsihimeecmetiiniiahaadinai 21

TABLE OF AUTHORITIES

Cases:

Agostini v. Felton, 521 U.S. 203 (1997) c.cccccccccccccsscssssessesoes 17

Board of Educ. of Kiryas Joel Village Sch. Dist. v.

Grumet, 512 U.S. 687 (1994) coccccccccccccccccsssccceccosesoseceeeeee. 13, 21

Board of Regents of the Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217 (2000) ..ccccccccccccccccessessccscscssssosees 15

Bowen v. Kendrick, 487 U.S. 589 (1988) coccccccccccccocoe coos. 16

Boyajian v. Gatzunis, 212 F.3d 1 (ist Cir. 2000),

cert. denied, 121 S. Ct. 759 (2001) ooc.ccccccccccccccccccsececoosecees 12, 14

Bradfield v. Roberts, 175 U.S. 291 (1899) ...cccccccccccscecsesseess 16

Children’s Healthcare Is a Legal Duty, Ine. Vo cocccccccscseee

Vladeck, 938 F. Supp. 1466 (D. Minn. 1996), vacated

as moot, Nos. 96-3936 & 96-3938 (8th Cir. Sept. 9,

Co) RE ESSE SAE eet Na ae ne 4,8

Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir.

1993), cert. denied, 512 U.S. 1236 (1994) oooccccccccccccssece, 12,14

Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.

oh: ERE 13, 14, 15, 17

Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc.,

224 F.3d 283 (4th Cir. 2000), cert. denied, No. 00-118

SEER a 12, 13, 14

Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir.

1997), cert. denied, 523 U.S. 1004 (1998) .o.ccccccccccccssccseeee 12

Frazee v. Illinois Dep't of Employment Sec.,

I I neces ceaneninienemannans 16

(III)

Cases—Continued: Page

Friedman v. Secretary of the Dep’t of Health &

Human Servs., 819 F.2d 42 (2d Cir. 1987) ...........ccceeceeees 20

Gumet v. Pataki, 93 N.Y.2d 677, cert. denied,

SOB US. 946 (1988) .......cceccercaceses sndchitihiasnsineniiihanianinisabiatinions 14

Hobbie v. Unemployment Appeals Comm’n,

480 U.S. 136 (1987) 0... ienseieiaeins 16

Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991) ................. 12

Larson v. Valente, 456 U.S. 228 (1982) ..............ccccccssssseeees 18

Lemon v. Kurtzman, 403 U.S. 602 (1971) 2.0... cee 9, 12, 16

Lynch v. Donnelly, 465 U.S. 668 (1984) ......ceceseeeesseseeeee 14

Mitchell v. Helms, 1208. Ct. 2530 (2000) ............00. 17, 18, 19

Regan v. Taxation With Representation, 461 U.S.

SOD CRIED sntiettstinnnnscccmitniannes . 15

Rust v. Sullivan, 500 U.S. 173 (1991) .22..............ccsccssssssssees 15

Sherbert v. Verner, 374 U.S. 398 (1963) ..........cccccccsssseeeees 16

Stark v. Independent Sch. Dist., No. 640, 123 F.3d

1068 (8th Cir. 1997), cert. denied, 523 U.S. 1094

CUT sccsteuicesiatacshdnien ioeiabiseteudiatidaammadedphigitesnaneibiiis 12,14

Texas Monthly, Inc. v. Bullock, 489 U.S.1

I aiiecescaneaeiennoias 13, 15, 18

Thomas v. Review Bd. of Ind. Employment Sec.

eg EAs GE CE) sceniiinceidibaiitianieaniaenarniananinaaiis 16

United States v. Lee, 455 U.S. 252 (1982) ...........ccccceseseeee 15

Witters v. Washington Dep't of Servs. for the Blind,

EG TE Se Ce csttnaneinstaesaninhcinacieneniapatiiaiaaieaitiin 17

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1

CITIIIITIEY csciseacnessbihchsledineebioneihieianedalitie ouctiateasb deceaaiciidageielienmbaaian 17

Zorach v. Clauson, 343 U.S. 306 (1952) 2... eceeeeeeeeeeeeees 17

Constitution, statutes and regulations:

U.S. Const. Amend. I:

Establishment Clause ................c.ssscsssesssssssoess 8, 9, 14, 15, 16

FO Te CII cenicnesitticiiniesitecianereniciacniipainieinnttaien 14, 16

Balanced Budget Act of 1997, Pub. L. No. 105-33,

Statutes and regulations—Continued: Page

Medicaid Act, Tit. XIX, 42 U.S.C. 1396 et seq. veccecceeecseseeee 2

Oy Uy TIPO : ceneresisniep eciainiiieliiininaiisainaanicaiadiiiae ones, 3,4

42 US.C. 1396a (1994 & Supp. IV 1998) .....cccccscssesceceeees 3

42 U.S.C. 1396a(a) (Supp. [V 1998) .......ccecscsssssscssseceseseees 7,8

42 US.C. 1396a(a)(10) (1994 & Supp. IV 1998) w..... 3

42 U.S.C. 1396b (1994 & Supp. IV 1998) woes 4

42 U.S.C. 1396b(a) (1994 & Supp. IV 1998) ...........00. saline 3

42 U.S.C. 1396d(a) (Supp. TV 1998) ..........cccsccssssssssssseseeees 3

Se UIA FeO siceiccsicesanietsiinssisnsshstnttlannianemtniies 3

Ge EBRD, FD -ciciitistenksnelaseiaainiibiaiis aici 3

Ge CFA i RD sitiiterneintnsisicienitcanichidaeibenaaitnetatandicie 3

42 U.S.C. 1396d(a)(27) (Supp. IV 1998) .......c.cccssessssesseeee 3

42 U.S.C. 1396d(b) (1994 & Supp. TV 1998) .....cccceeseseees 3

42 U.S.C. 1396g (Supp. IV 1998) ........c.ccccccsssssssssssssssscescceees 8

42 U.S.C. 1396g(e)(1) (Supp. TV 1998) ......ecescscssessseseeeeees 7

Medicare Act, Tit. XVIII, 42 U.S.C. 1395 et seq. woes. 2

Eo a Te ceshececeieciieiaeiirauenieiihiieieaiadpbiiatiiaitiicines 2

42 U.S.C. 1395d(a) (1994 & Supp. IV 1998) 0... 23

42 U.S.C. 1395f (1994 & Supp. IV 1998) 00... eecessesesseeees 3

42 U.S.C. 1395i-8 (1994 & Supp. IV 1998) ...sccccccccsssseeeeeeee 2

42 U.S.C. 1395i-5 (Supp. TV 1998) .0.........ccssesssssssscscssecessecese 7

42 U.S.C. 1395i-5(a) (Supp. IV 1998) .....scccsccssssesscsssseeseessees 6

42 US.C. 1395i-5(a)(2) (Supp. TV 1998) .........cccsseseseseseesees 6

42 U.S.C. 1395i-5(b)(2) (Supp. [IV 1998) .........cccsecssessseseees 20

42 U.S.C. 1395i-5(b)(2)(A) (Supp. TV 1998) .........ccccccceeeee 7

42 US.C. 1395x(b) (1994 & Supp. IV 1998) 2, 4,6

GE UE AAA, TE I iesiesesiintirenticsescinsnnrceniicsseibintenios 4

42 US.C. 1395x(e) (1994 & Supp. IV 1998) ......cccceseeseeeee 2

42 U.S.C. 1395x(e) (Supp. TV 1998) .0......cccccsccsssesssessssseeeees 5

42 U.S.C. 1395x(h) (1994 & Supp. IV 1998) wo 4,6

42 U.S.C. 1395x(m) (1994 & Supp. IV 1998) occ 2

Oe CE Bais BED sista ntttsenieiscecisiicnaniatbendsiacesendindarniainens 3

42 U.S.C. 1395x(h) (1994 & Supp. IV 1998) ...cccccccccsssseeeee 2

42 U.S.C. 1395x(dd)(1) (1994 & Supp. IV 1998) oo... 2

Statutes and regulations—Continued: Page

42 U.S.C, 1895x(dd)(2) (1994 & Supp. TV 1998) «0.0... 2

2 U.S.C. 1595x(a8) (Supp. TV 1998) ..........ccccsssecssrsssssesess 6

42 U.S.C. 1895x(88)(1)(A) (Supp. TV 1998) ......cccccccceeeeees 6

42 U.S.C. 1395x(s88)1)(B) (Supp. TV 1998) 2.0.0... cece 6

2 U.S.C. 1395x(s8)(1)(E) (Supp. TV 1998)... 65

42 U.S.C. 13895x(ss) 1G) (Supp. PV 1998) 20... eee 6

42 U.S.C. 1895x(ss)(1)(H)-(J) (Supp. TV 1998) ...0..0000.. S

42 U.S.C. 1395x(s8 (3 AX (Supp. TV 1998) ........cccccceees 7

42 U.S.C. 1395x(s8 (38) AD (Supp. (PV 1998)... ccc. 7

2 U.S.C, 1395x(s8)(3)( Bi) (Supp. PV 1998)... xs

GBUBC. Cia CG ccncncniiniain 4

42 U.S.C. 1395x(y (1) (Supp. PV 1998) 2..........cccccesccsscescenees 5

Se as DOOD siettsiceiniiiuittitaiiaittan isn adaiadaadisaiaaaaal 8

TB UBL. BIRD cccnentesennninemiinuninnineainniiitainannaii 2

BS USA GROUND ceccessssesnssesnnstesisnnennttintntasineeinaiaainnadiia 2

42 U.S.C. 18200-11 (Supp. TV 1998) .........c.ccccccscsscscsesececsesesees 7

42 C.F.R.:

CREO GRILLS cenceussctusneshsstnnsccnnsissininniasiinteeseadindeaiaennes 19

BOEA GED ccxsctecnoccsnccnsstentinusssiibaninatintedeimmamnintneeeceel 19

Miscellaneous:

4 Fed. Reg. (1999):

a EID cceunnsinsinienerersserienienennenieennicetnsiabintsiiiaiideiiabibitsimatnaaiabai 8

©, CUED nccnnnnunenunncntianntionsadianiniine

H.R. Conf. Rep. No. 217, 105th Cong., Ist Sess.

CUTIE) arccrecssncessnesensenssenssnsennssonsssenssisbecensssishinebsineadbiinionsasssinin 5, 16, 21

Jn the Supreme Court of the United States

No. 00-914

CHILDREN’S HEALTHCARE IS A LEGAL DuTY,

INC., ET AL., PETITIONERS

MICHAEL MCMULLAN, ACTING DEPUTY

ADMINISTRATOR, HEALTH CARE FINANCE

ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-53) is

reported at 212 F.3d 1084. The opinion of the district

court (Pet. App. 54-72) and an order correcting certain

factual errors in that opinion (Pet. App. 73-75) are

unreported.

JURISDICTION

The court of appeals entered its judgment on May 1,

2000. A petition for rehearing was denied on August

29, 2000. The petition for a writ of certiorari was filed

(1)

on November 27, 2000. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Congress enacted the Medicare Act, 42 U.S.C.

1395 et seqg., and the Medicaid Act, 42 U.S.C. 1396 et

seq., to increase the access of elderly, disabled, and low-

income individuals to health care. Part A of the Medi-

care program creates a comprehensive insurance pro-

gram that provides individuals 65 years or older and

individuals with disabilities “basic protection against

the costs of hospital, related post-hospital, home health

services, and hospice care.” 42 U.S.C. 1395¢e. The

Medicare program is financed through a separate fed-

eral income tax on-employee wages and self-employ-

ment income. See 26 U.S.C. 1401(b), 3101(b). Benefits

under Part A of the Medicare program are available for

care furnished by health care providers that qualify as a

hospital, skilled nursing facility, home health agency, or

hospice. 42 U.S.C. 1395d(a), 1395x(e) (1994 & Supp. IV

1998) (definition of “hospital’”), 1395i-3 (1994 & Supp. IV

1998) (definition of “skilled nursing facility”), 1395x(o)

(definition of “home health agency”), 13895x(dd)(2) (1994

& Supp. IV 1998) (definition of “hospice program”).

Medicare benefits may include payments for bed and

board; nursing, medical, social, diagnostic, and thera-

peutic services; and drugs, biologicals, supplies, appli-

ances, and equipment. 42 U.S.C. 1395d(a), 1395x(b)

(1994 & Supp. IV 1998) (hospitals), 1395x(h) (1994 &

Supp. IV 1998) (nursing facilities), 1395x(m) (1994 &

Supp. IV 1998) (home health services), 1395x(dd)(1)

(1994 & Supp. IV 1998) (hospice care). Individual bene-

ficiaries select the provider from which they will re-

ceive care, and Medicare then reimburses the provider

for providing covered services to the beneficiaries. See

42 U.S.C. 1395d(a), 1895f (1994 & Supp. IV 1998).

The Medicaid Act is designed to enable each State “to

furnish (1) medical assistance on behalf of families with

depencent children and of aged, blind, or disabled

individuals, whose income and resources are insufficient

to meet the costs of necessary medical services, and (2)

rehabilitation and other services to help such families

and individuals attain or retain capability for inde-

pendence or self-care.” 42 U.S.C. 1396. The Medicaid

program is jointly financed by the federal and state

governments and is administered by the States.

42 U.S.C. 1396b(a), 1896d(b) (1994 & Supp. IV 1998).

States participating in the Medicaid program are

required to submit a “state plan” that fulfills broad

requirements imposed by the statute and regulations.

42 U.S.C. 1396, 1396a (1994 & Supp. IV 1998). A state

plan must provide for coverage of certain basic medical

services, including inpatient and outpatient hospital

services, other laboratory and x-ray services, and phy-

sician and nursing services. 42 U.S.C. 1396a(a)(10)

(1994 & Supp. IV 1998), 1396d(a)(1)-(5), (17) and (21). A

State may also, at its option, provide benefits for a

variety of other health-care-related services, 42 U.S.C.

1396d(a) (Supp. IV 1998), including, in relevant part,

“any other type of remedial care recognized under

State law, specified by the Secretary.” 42 U.S.C.

1396d(a)(27) (Supp. IV 1998). Within the broad limits

established by the Medicaid statute and implementing

regulations, each State determines the type, scope, and

duration of services for which benefits are available,

and the standards of eligibility. 42 U.S.C. 1396a(a)(10)

(1994 & Supp. IV 1998). As with Medicare, beneficiar-

ies select the provider from which they will receive

services, and the State reimburses the provider for

covered services. The States, in turn, file claims with

the federal government for reimbursement at the end

of each year. See 42 U.S.C. 1396, 1896b (1994 & Supp.

IV 1998).

As originally enacted, the Medicare and Medicaid

statutes included special provisions allowing compensa-

tion for purely non-medical services, unaccompanied by

medical treatment, only if the beneficiary sought treat-

ment in a sanatorium “operated, or listed and certified,

by the First Church of Christ, Scientist, Boston, Mas-

sachusetts.” 42 U.S.C. 13895x(e) and (y)(1) (1994).

Those provisions were struck down as unconstitutional

in Children’s Healthcare Is a Legal Duty, Inc. v.

Vladeck, 938 F. Supp. 1466, 1469-1470 (D. Minn. 1996),

vacated as moot, Nos. 96-3936 & 96-3938 (8th Cir. Sept.

9, 1997).!

b. In Section 4454 of the Balanced Budget Act of

1997, Pub. L. No. 105-33, 111 Stat. 426-432, Congress

amended the Medicare and Medicaid programs to

remove the sect-specific limitation in the exception. In

its place, Congress enacted provisions that allow all

individuals who have a medical condition serious

enough to warrant admission to a hospital or skilled

nursing facility, but who have sincere religious objec-

tions to receiving medical care, to receive reimburse-

ment for the same non-medical health care services that

are reimbursable when provided in a hospital or skilled

nursing facility incident to medical care.” Congress’s

! The Department of Justice declined to seek further review

and notified Congress that it would no longer defend the con-

stitutionality of those particular provisions. See Pet. App. 141-157.

“ See 42 U.S.C. 1395x(b) (1994 & Supp. IV 1998) (defining

“inpatient hospital services” to include, e.g., bed and board, nursing

services, and health care supplies); 42 U.S.C. 1395x(h) (1994 &

Supp. IV 1998) (similarly defining “extended care services”).

OO eV

purpose was to provide “a sect-neutral accommodation

available to any person who is relying on a religious

method of healing and for whom the acceptance of

medical health services would be inconsistent with his

or her religious beliefs.” H.R. Conf. Rep. No. 217, 105th

Cong., Ist Sess. 768 (1997).

To that end, Congress amended the definitions of

“hospital” and “skilled nursing facility” in the Medicare

Act to include “a religious nonmedical health care

institution * * *, but only with respect to items and

services ordinarily furnished by such institution to

inpatients, and payment may be made with respect to

services provided by or in such an institution only to

such extent and under such conditions, limitations, and

requirements * * * as may be provided in regulations

consistent with section 1395i-5 of this title.” 42 U.S.C.

1395x(e) (Supp. IV 1998); see also 42 U.S.C. 1395x(y)(1)

(Supp. IV 1998). The amendments further define a

“religious nonmedical health care institution” (RNHCI)

as a facility that, inter alia:

services exclusively to patients who choose to rely

solely upon a religious method of healing and for

whom the acceptance of medical health services

would be inconsistent with their religious beliefs;

(D) provides such nonmedical items and ser-

vices exclusively through nonmedical nursing per-

sonnel who are experienced in caring for the

physical needs of such patients; [and]

* * * * *

(F) onthe basis of its religious beliefs, does not

provide through its personnel or otherwise medical

items and services (including any medical screening,

examination, diagnosis, prognosis, treatment, or the

administration of drugs) for its patients.

42 U.S.C. 13895x(ss) (Supp. IV 1998). In addition, the

RNHCI must be a lawfully operated nonprofit organi-

zation, must provide non-medical items and services to

inpatients on a 24-hour basis, and may not be owned by

or affiliated with a provider of medical treatment or

services. 42 U.S.C. 1895x(ss)(1)(A), (B), (E) and (G)

(Supp. [V 1998). As the court of appeals explained,

Congress imposed those requirements “to ensure the

safety of patients receiving medical care through Medi-

care and Medicaid.” Pet. App. 11. Otherwise, Congress

feared, “an institution that provides both medical and

spiritual healing services” could “evade the medical

- oversight and other quality of care standards that

Medicare and Medicaid impose on all medical institu-

tions,” but not on RNHCIs. bid.

Congress further amended the statute to allow

reimbursement for services furnished in an RNHCI

only if the individual’s condition was sufficiently serious

that the patient would qualify for benefits for inpatient

hospital services or extended care services in a medical

facility. 42 U.S.C. 1395i-5(a)(2) (Supp. IV 1998). Fur-

ther, Congress authorized payment only for “inpatient

hospital services or post-hospital extended care ser-

vices,” 42 U.S.C. 1395i-5(a) (Supp. [V 1998), which are

defined to include only secular health care services such

as bed and board, nursing services, and health care

supplies. 42 U.S.C. 1395x(b) (1994 & Supp. IV 1998)

(defining “inpatient hospital services”); 13895x(h) (1994

& Supp. IV 1998) (defining “extended care services”).’

* Because RNHCIs do not provide medical care, Congress

exempted them from the medical standards and medical review

. 7

Congress further conditioned the receipt of benefits on

the individual beneficiary making a written election to

receive such benefits in an RNHCI. 42 U.S.C. 1395i-5

(Supp. IV 1998).*

The amendments provide that patients in an RNHCI

are not required “to undergo medical screening, ex-

amination, diagnosis, prognosis, or treatment or to

accept any other medical health care service, if such

patient * * * objects thereto on religious grounds.”

42 U.S.C.1395x(ss)(3)(A)(i) (Supp. IV 1998). That

provision, however, “shall not be construed as

preventing the Secretary [of Health and Human

Services] from requiring * * * the provision of

sufficient information regarding an individual’s con-

dition as a condition for receipt of benefits.” 42 U.S.C.

1395x(ss)(3)(A)(ii) (Supp. TV 1998).

In addition, an RNHCI’s initial coverage deter-

minations are subject to the same administrative and

judicial review procedures that govern coverage deter-

minations by hospitals and skilled nursing facilities.

The initial coverage determination is reviewed by a

fiscal intermediary (usually an insurance company),

which is independent of the RNHCI. The fiscal inter-

mediary’s decision is then subject to review by the

Provider Reimbursement Review Board, the Secretary

of Health and Human Services, and ultimately the

requirements that apply to facilities providing medical care under

the Medicare and Medicaid programs. 42 U.S.C. 1320c-11,

1396a(a), 1396g(e)(1) (Supp. IV 1998).

4 The individual must certify in writing that he or she “is con-

scientiously opposed to acceptance of nonexcepted medical treat-

ment,” and that his or her “acceptance of nonexcepted medical

treatment would be inconsistent with the individual’s sincere

religious beliefs.” 42 U.S.C. 1395i-5(b)(2)(A) (Supp. IV 1998).

courts.” See 42 U.S.C. 1395x(ss)(1)(H)-(J) and (3)(B)(ii)

(Supp. IV 1998), 139500; see also 64 Fed. Reg. 67,028,

67,038 (1999) (interim final regulations implementing

the 1997 amendments).°

2.a. One day after the enactment of Section 4454 of

the Balanced Budget Act of 1997, petitioners, as tax-

payers, filed suit challenging the amendments made by

that Section as a violation of the Establishment Clause,

both on their face and as applied to Christian Science

sanatoria. The First Church of Christ Scientist inter-

vened. The district court granted summary judgment

in favor of respondents on the ground that Section 4454

is a permissible, sect-neutral accommodation of religion.

Pet. App. 54-75.

b. The court of appeals affirmed. Pet. App. 1-31.

The court first rejected petitioners’ argument that Sec-

tion 4454 should be subject to strict scrutiny as a

denominational preference. The court explained that

Section 4454 “is by its terms sect-neutral” and that its

legislative history reveals that its impetus was “to

accommodate all persons who object to medical care for

religious reasons.” /d. at 8-9. Finally, the court rea-

soned that the eligibility requirements and limitations

established by Section 4454 “reflect valid secular jus-

° Petitioners’ assertion (Pet. 9) that Section 4454 leaves an

RNHCI “virtually free to determine its own coverage” thus

misunderstands the statute’s operation.

® The statutery provisions discussed in the text are those appli-

cable to the Medicare program. Parallel amendments were made

in the Medicaid statute to permit coverage of non-medical services

provided by an RNHCI, where the beneficiary’s condition other-

wise qualifies him or her for Medicaid services. See 42 U.S.C.

1396a(a), 1396g (Supp. IV 1998); Pet. App. 5; Children’s Healthcare

Is a Legal Duty, 938 F. Supp. at 1469-1471.

tifications” rather than “a religious gerrymander.” Id.

at 10.

Then, applying the analytical framework of Lemon v.

Kurtzman, 403 U.S. 602, 612-613 (1971) (Pet. App. 13),

the court of appeals held that Section 4454 is consistent

with the Establishment Clause. First, the court ruled

(Pet. App. 14-15) that Section 4454 has a secular legisla-

tive purpose because “it removes a special burden

imposed by the Medicare and Medicaid Acts upon

persons who hold religious objections to medical care”

and who otherwise would be “forced to choose between

adhering to the tenets of their faith and receiving

government aid.” The court noted (id. at 15) that the

pressure to abandon religious beliefs to obtain some

form of health care coverage is “especially acute under

Medicaid, which often represents the only source of

health care for indigent persons.” See also id. at 17

(noting that both unemployment compensation and

Medicare and Medicaid benefits are “of great impor-

tance to personal well-being”).

Second, the court concluded that Section 4454’s pri-

mary effect neither advances nor inhibits religion.

Applying this Court’s accommodation precedents, the

court stated that Section 4454 would “impermissibly

advance[] or inhibit{] religion only if it imposes a sub-

stantial burden on nonbeneficiaries, or provides a

benefit to religious believers without providing a corre-

sponding benefit to a large number of nonreligious

groups or individuals.” Pet. App. 19-20 (citations

omitted). The court held that Section 4454 does not

impose a substantial burden on nonbeneficiaries, noting

that petitioners failed to show that Section 4454 would

result in any increased tax burdens on the general

population or in any particular burdens on individual

nonbeneficiaries. Jd. at 20. Nor, the court concluded,

does Section 4454 grant any special benefit to

individuals who have religious objections to medical

care, because it “merely permits” patients in RNHCIs

“to receive a ‘subset,’ i.e. the nonmedical portion, of the

care provided by Medicare and Medicaid to patients of

medical institutions.” Jd. at 21. Patients in an RNHCI,

the court emphasized, are “never reimbursed for

services for which medical patients are not similarly

reimbursed.” /d. at 23-24. The court further held that

Section 4454 “does not create any more of an incentive

for persons to engage in religion than other religious

accommodations that have been upheld by the Supreme

Court,” id. at 25, and does not provide funding for any

religious activity that may occur in an RNHCI, ibid.

See also id. at 26 (Section 4454 does “not fund the

spiritual healing services that may take place” in an

RNHCI). “Because the[] [covered] physical care ser-

vices, such as dressing of wounds and assistance in

eating, are inherently secular, and are not converted

into [religious activities] by the fact that they are

carried out by organizations with religious affiliations,”

the court reasoned, “the primary function” of the

RNHCIs “is secular in nature.” Jd. at 26-27 (citations

and internal quotation marks omitted).

Third, the court rejected (Pet. App. 27) petitioners’

argument that Section 4454 unlawfully delegates to

RNHCIs, which are religious organizations, ultimate

decision-making authority regarding Medicare and

Medicaid coverage. The court noted (id. at 28) that the

statute “makes clear” that RNHCIs “offer[] only an

initial recommendation regarding Medicare and Medi-

caid coverage,” and that the “Secretary, typically acting

through a fiscal intermediary in the form of a private

insurance company, then reviews the RNHCI’s recom-

mendation to finally determine whether the patient is

entitled to Medicare or Medicaid benefits for the

services provided.” The court further noted that the

Secretary “is authorized to obtain any * * *

information that she believes to be necessary to

perform her evaluation,” and is “expressly empowered

to deny Medicare and Medicaid benefits * * * if any

information requested is not provided,” id. at 28-29,

thereby ensuring “substantial and meaningful review

by the Secretary, or her agent,” id. at 25 n.8. The court

found, in petitioners’ facial challenge, no reason to

question “the soundness of Congress’s judgment that

the Secretary generally will be able to make a com-

petent coverage determination based upon the non-

medical information available to her.” Id. at 29."

Judge Lay dissented, Pet. App. 31-53, explaining that

he would have ruled that Section 4454 creates an

unconstitutional denominational preference in favor of

the Christian Science church and also that Section 4454

violates each prong of the Lemon test.

ARGUMENT

l. a. Petitioners contend (Pet. 17-19) that this Court

should grant review to address what petitioners

perceive to be divergence in the courts of appeals’

analyses of religious accommodation issues. Peti-

tioners, however, identify no conflict among the circuits

on the question presented. To the contrary, the decision

of the court of appeals, and the underlying district court

decision, are the first in the country to address the

constitutionality of Section 4454. To our knowledge, no

? The court also rejected petitioners’ argument that Section

4454 may not be constitutionally applied to Christian Science sana-

toria because those institutions are pervasively sectarian. See Pet.

App. 29-30. Petitioners have not sought this Court’s review of the

court of appeals’ disposition of their as-applied challenge.

other federal or state court has broached the issue.”

Given the statute’s nascency and the dearth of lower

court authority considering the constitutional question,

review of a decision sustaining Section 4454’s constitu-

tionality at this time would be premature.

b. Unable to identify any relevant division among

the circuits, petitioners assert (Pet. 17) that the lower

courts are in “disarray” on the constitutional principles

governing religious accommodations more generally.

The few cases they cite to support that proposition,

however, demonstrate precisely the opposite. In each

of the decisions they cite—Stark v. Independent School

District, No. 640, 123 F.3d 1068 (8th Cir. 1997)

(authored by the same judge who authored the opinion

below), cert. denied, 523 U.S. 1094 (1998) (Pet. 17-18);

Boyajian v. Gatzunis, 212 F.3d 1 (1st Cir. 2000), cert.

denied, 121 S. Ct. 759 (2001) (Pet. 18); Ehlers-Renzi v.

Connelly School of the Holy Child, Inc., 224 F.3d 283

(4th Cir. 2000), cert. denied, No. 00-1118 (Feb. 26, 2001)

(Pet. 18-19); and Cohen v. City of Des Plaines, 8 F.3d

484 (7th Cir. 1993), cert. denied, 512 U.S. 1236 (1994)

(Pet. 19)}—the court of appeals applied the same Lemon

v. Kurtzman analysis’ applied by the court of appeals

here and, also like the court here, sustained the relig-

ious accommodation. Petitioners’ own submission thus

demonstrates harmony, rather than conflict, in the

courts of appeals’ analyses."

8 Petitioners note (Pet. 23) only that another challenge was

recently filed in the Northern District of California. Kong v.

McMullan, No. C-00-4285-CRB (N.D. Cal. filed Nov. 17, 2000).

9 Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).

10 Petitioners’ reliance on Lamont v. Woods, 948 F.2d 825 (2d

Cir. 1991), and Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir.

1997), cert. denied, 523 U.S. 1004 (1998), is misplaced. Lamont con-

cerned the federal government’s direct construction, maintenance,

Earlier this week, moreover, this Court denied a

petition for a writ of certiorari that advanced the

virtually identical argument concerning an asserted

disarray in lower court opinions. Ehlers-Renzi v.

Connelly Sch. of the Holy Child, supra. Given that the

petition in Ehlers-Renzi relied, in part, on the court of

appeals’ decision here and on many of the same.

appellate decisions cited by petitioners, there is no

basis for a different disposition of the instant petition.

ce. In any event, petitioners err in suggesting (Pet.

19) that the courts of appeals “desperately need

guidance” on three particular issues. First, there is no

need for further guidance at this time regarding the

“trigger that requires or justifies accommodation

analysis” (ibid.). This Court has consistently held that

accommodation can be appropriate if it lifts a significant

or special government-imposed burden on the free

exercise of religion. See, e.g., Board of Educ. of Kiryas

Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 705

(1994); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 15

(1989) (plurality opinion); Corporation of the Presiding

Bishop of the Church of Jesus Christ of Latter-Day

Saints v. Amos, 483 U.S. 327, 338 (1987). The court of

appeals found such a burden here (Pet. App. 14-17), and

the petition offers no evidence that other courts of

appeals have abandoned that requirement.

Second, the petition fails to show that further guid-

ance is needed concerning “whether the existence of a

general funding or zoning scheme ever imposes a con-

stitutionally significant burden on religious dissenters

that would justify accommodation” (Pet. 19; emphasis

and operation of religious schools abroad for foreign nationals.

Elewski concerned city funding of a creche in a public park.

Neither involved accommodation analysis.

added). This Court, however, has cautioned that bright

doctrinal lines may not be appropriate when analyzing

the often delicate intersection of the Free Exercise and

Establishment Clauses. See Lynch v. Donnelly, 465

U.S. 668, 678 (1984) (eschewing “an absolutist approach

in applying the Establishment Clause” because each

case entails “line-drawing; no fixed, per se rule can be

framed”). The present case, involving a national insur-

ance program, is ill-suited to address accommodation

analysis as it might pertain to general funding or zoning

schemes.

Third, there is no need for further review to address

“whether both Lemon analysis and accommodation

analysis are appropriate when analyzing under the

Establishment Clause a scheme that specially benefits

religion in general or particular religious entities” (Pet.

19). This Court has applied the Lemon test in permis-

sive accommodation cases, see Amos, 483 U.S. at 338,

and all the courts of appeals petitioners cite (Pet. 17-19)

have followed suit, see Ehlers-Renzi, 224 F.3d at 288-

292; Boyajian, 212 F.3d at 5-10; Stark, 123 F.3d at 1073-

1075; and Cohen, 8 F.3d at 488-494."

2. Petitioners likewise err in contending (Pet. 19-22)

that the court of appeals’ decision departs from this

"As the court of appeals explained (Pet. App. 12-13 n.5),

Grumet v. Pataki, 93 N.Y.2d 677, cert. denied, 528 U.S. 946 (1999),

is consistent with its approach. In that case, the New York Court

of Appeals held unconstitutional a law permitting the creation of

special school districts because it contained arbitrary wealth and

population criteria that served no valid, secular purpose, and that

effectively limited the religious accommodation at issue to a single

religious sect. See id. at 690. In the present case, by contrast, the

court of appeals held that Section 4454’s terms and qualifications

are sect-neutral and reasonably advance neutral, secular goals.

Pet. App. 10-12.

Court’s precedents. The court of appeals hewed to the

same accommodation analysis applied by this Court in

earlier cases, such as Texas Monthly, Inc. v. Bullock,

and Corporation of the Presiding Bishop v. Amos,

supra.

a. Petitioners insist that “payment of a tax into a

general governmental scheme” can never amount to a

sufficiently significant burden on religion to permit

accommodation consistent with the Establishment

Clause. Pet. 20-21 (citing Board of Regents of the Univ.

of Wis. Sys. v. Southworth, 529 U.S. 217 (2000); Rust v.

Sullivan, 500 U.S. 173 (1991); Regan v. Taxation With

Representation, 461 U.S. 540 (1983); and United States

v. Lee, 455 U.S. 252 (1982)). Those cases, however, held

only that the Constitution did not compel an accom-

modation; they did not hold that accommodation would

be forbidden. In fact, a religious objection to the pay-

ment of taxes can, in certain circumstances, justify

different types of permissive legislative accommoda-

tions. In Lee, this Court noted that, although not con-

stitutionally compelled to do so, Congress had provided

an exemption from social security taxes for members of

religious groups who are conscientiously opposed to

such insurance schemes and whose religious communi-

ties make comparable provision for their members.

455 U.S. at 255-256 n.4.

Moreover, petitioners misunderstand the nature of

the burden that Congress alleviated here. Congress

reasonably concluded that, absent Section 4454, the

requirement of medical care as a prerequisite to the

receipt of other forms of palliative care would force

upon religious adherents the Hobson’s Choice of

adhering to their faith and forgoing vital governmental

benefits, or violating their religious tenets to enjoy the

same benefits that are available to members of the

public generally. This Court has consistently acknow]l-

edged that imposing such a choice can exert “sub-

stantial” pressure on an individual “to modify his

behavior and to violate his beliefs.” Thomas v. Review

Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-718

(1981); see also Frazee v. Illinois Dep’t of Employment

Sec., 489 U.S. 829, 832 (1989); Hobbie v. Unemployment

Appeals Comm’n, 480 U.S. 136, 141 (1987); Sherbert v.

Verner, 374 U.S. 398, 404 (1963). If, as the Court has

held, such burdens may be sufficient to compel

accommodation under the Free Exercise Clause, then

the pressure identified by Congress here on critically ill

individuals who need nursing services is sufficient to

permit accommodation under the Establishment

Clause. See Pet. App. 15-17; H.R. Conf. Rep. No. 217,

105th Cong., Ist Sess. 768 (1997) (finding that it would

be “particularly harsh to cut off nursing benefits for

poor and elderly men and women who have not made

alternative arrangements for financing their health care

and who now rely on the availability of nonmedical

nursing benefits at a time when other patients receive

reimbursement for hospital care”).

b. Petitioners further err in arguing (Pet. 15, 20)

that accommodation is per se impermissible if it results

in federal money being distributed to religious insti-

tutions. This Court has long held that the Establish-

ment Clause does not disqualify religious institutions

from receiving public funds to carry out valid, secular

purposes—including, in particular, the provision of

health care services. See, e.g., Bradfield v. Roberts, 175

U.S. 291 (1899); accord Bowen v. Kendrick, 487 U.S.

589, 613 (1988); Lemon v. Kurtzman, 403 U.S. at 616-

617 (upholding public funding of “health care services”

provided in pervasively sectarian schools). Section

4454, moreover, does not involve the direct distribution

of money from the federal government to religious

entities. Rather, funds are paid to religious institutions

only as a result of the intervening, independent deci-

sions of individual beneficiaries to seek non-medical

health care services from an RNHCI, rather than a

traditional Medicare or Medicaid provider. See

Mitchell v. Helms, 120 S. Ct. 2530, 2544-2546 (2000)

(plurality opinion); Agostini v. Felton, 521 U.S. 208,

225-226 (1997); Witters v. Washington Dep’t of Servs.

for the Blind, 474 U.S. 481 (1986) (providing vocational

rehabilitation assistance funds to a seminary school

based on student’s choice); cf. Zobrest v. Catalina

Foothills Sch. Dist., 509 U.S. 1 (1993) (providing sign-

language interpreter in parochial school based on

independent choice of student and parents).

ce. Nor is Agostini v. Felton, supra, of help to peti-

tioners (see Pet. 15, 21). In Agostini, the Court held

that the primary-effect inquiry focuses on whether

government action (1) results in religious indoctrina-

tion, (2) defines its recipients by reference to religion,

and (3) creates an excessive entanglement with religion.

521 U.S. at 234. But Agostini did not involve an accom-

modation claim, and the decision expanded the ability of

government to extend generally available educational

benefits to students in religious schools.

Moreover, while Section 4454 limits the aecommoda-

tion “by reference to religion,” that is by definition true

of all religious accommodation provisions. See, ¢.g.,

Amos, 483 U.S. at 329-330 n.1 (Title VII accommodation

for religious employers); Zorach v. Clauson, 343 U.S.

306, 308 n.1 (1952) (sustaining early release of students

from public schools for religious instruction). The

critical consideration, for purposes of the primary

effects test, is whether the accommodation provides a

special benefit “by reference to religion,” or instead

simply lifts a significant burden on the receipt of widely

available secular benefits. As the court of appeals and

district court found, Section 4454 does not grant any

special benefit to individuals who have religious

objections to medical care. It “merely permits” pa-

tients in RNHCIs “to receive a ‘subset,’ i.e. the non-

medical portion, of the care provided by Medicare and

Medicaid to patients of medical institutions.” Pet. App.

21." Furthermore, eligibility under Section 4454 turns

upon the beneficiaries’ objectively and secularly defined

medical condition and their receipt of secular, non-

medical health-care benefits, such as nursing services.

All that Section 4454 does is ensure that patients whose

religious beliefs motivate them to seek those health

care benefits in a religious, non-medical health care

institution, rather than in a hospital or similar facility,

are not excluded from coverage, again much like

Agostini made clear that a student’s choice to receive

educational services in a religious school did not deprive

him or her of the same Title I benefits available to

students in nonreligious schools. See Pet. App. 22

(under Section 4454, “patients are not reimbursed for

any services for which they would not be similarly

reimbursed if they, had sought care at a medical

institution”).

For those same reasons, petitioners’ reliance (Pet. 24-

25) on Mitchell v. Helms, supra, and Larson v. Valente,

456 U.S. 228 (1982), is misplaced. As amended by Sec-

tion 4454, the Medicaid and Medicare programs now

“offer[] aid on the same terms, without regard to

2 Contrast Texas Monthly, 489 U.S. at 15 (plurality opinion)

(invalidating tax exemption that was limited to religious publica-

tions, because the tax did not impose a significant, government-

created burden on free exercise).

religion, to all who adequately further that purpose” by

meeting the statute’s definition of medical eligibility

and incurring covered services; government “has pro-

vided no more than that same level [of aid] to religious

recipients.” Mitchell, 120 S. Ct. at 2541 (plurality

opinion).

Further, petitioners’ concern that Section 4454

creates a “financial incentive” to undergo religious

indoctrination is farfetched. Pet. 25 (citing Mitchell,

120 S. Ct. at 2561 (O’Connor, J., concurring in the judg-

ment)). The amended Medicare and Medicaid pro-

grams, through their extensive coverage of medical

treatment, give acutely ill patients every incentive to

seek comprehensive medical care. It is thus highly

unlikely that Section 4454 will inspire any acutely ill

person to forgo reimbursable medical services solely to

avail herself of the narrower category of reimbursed

benefits available under Section 4454. Rather, Section

4454 simply removes a significant financial disincentive

for religiously motivated beneficiaries to adhere to

their pre-established faith convictions.

Petitioners are equally wrong in arguing (Pet. 28-29)

that Section 4454 grants religious believers a special

benefit by exempting them from the general ban on

Medicare and Medicaid reimbursement for “custodial

care.” The custodial-care exclusion prohibits reim-

bursement for personal care services unless such

services are “given as part of an integrated plan of care

that, as a whole, requires professional supervision.”

Pet. App. 22 (citing 42 C.F.R. 409.33(a)(1) and(d)).

Nothing in Section 4454 excepts RNHCIs from that ban

on reimbursement for “custodial care,” and, in fact,

Section 4454 retains the substance of that exclusion by

authorizing reimbursement only for individuals who

have a condition that wouid allow them to be admitted

to a hospital or skilled nursing facility. See 42 U.S.C.

1895i-5(b)(2) (Supp. IV 1998); see also Friedman v.

Secretary of the Dep’t of Health & Human Servs., 819

F.2d 42, 45 (2d Cir. 1987) (custodial care exclusion bars

reimbursement of personal care services to individuals

who do not have a condition that requires inpatient

medical care). While Section 4454 does permit reim-

bursement of health care services that are not provided

incident to medical care, it ensures that only patients

whose conditions warrant covered medical care in a

medical facility (as distinguished from custodial care

standing alone) are eligible for reimbursement, and the

reimbursement is limited to the same non-medical care

services covered for patients in medical facilities.”

3. Lastly, petitioners complain about the anticipated

operation and implementation of Section 4454. How-

ever, because petitioners chose to make a facial attack

on a statute at the moment of its inception, without an

adequate record of application, interpretation, or

judicial construction, or even the issuance of final

agency regulations implementing the statute, peti-

tioners have provided this Court no meaningful or

practical context in which to review their claims,

making an exercise of this Court’s certiorari jurisdic-

tion at this time inappropriate.

In any event, petitioners’ contention (Pet. 26-27) that

Section 4454 is a mere congressional pretext to justify

continued sect-specific aid to Christian Scientists is

belied both by Section 4454’s neutral terms and its

'3The petition does not argue that Section 4454 results in

excessive entanglement between the government and religion. In

any event, the court of appeals correctly rejected that contention.

See Pet. App. 27-29 (describing the carefully calibrated oversight

provisions formulated by Congress).

legislative history, which shows that Congress intended

to extend the accommodation previously afforded only

to Christian Scientists to “any person who is relying on

a religious method of healing and for whom the

acceptance of medical health services would be incon-

sistent with his or her religious beliefs.” H.R. Conf.

Rep. No. 217, supra, at 768; see also Pet. App. 9-10

(rejecting petitioners’ “selective and strained reading of

the legislative history” and noting that “there is no such

evidence that Congress sought to include only Christian

Scientists within the challenged provisions or, con-

versely, to exclude any other denomination”); cf. Kiryas

Joel, 512 U.S. at 717 (O’Connor, J., concurring) (“[t]here

is nothing improper about a legislative intention to

accommodate a religious group, so long as it is imple-

mented through generally applicable legislation”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.