# Petition for Writ of Certiorari — Warder v. Shalala > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1143%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1064 ## Text Supreme Court, vU.s. i fy #8113831 JANS 199 No. In The Supreme Court of the United States October Term 1998 ~aTaAT LAD mr oo, AALNIN WANLIIN c | a <4 é DONNA 1" CLIAT ATA + a we eT DSS ~~ + - eo es L 7 ¥ — sl —— obkdnhianw Wae 2. + 2S Paw 1 Prevaeawss FUE A WIOILC i FS be Tt. + e TIniteda Ceatre oF —_. $ ~ _— ~~ ae ee ee a he — —_ Annera oS * ¥ 2 Fm 1 ‘a>rT ¥ “ aks ee ee OH > i — ~ > ~—_— * PETITION FOR A WRIT OF CERTIORARI * TAMRC . VOT T JAMES £ A ii 1 7,4 _ ~ ler Taw Birr D RELLY Law » a & bily s ~ ~A nA rh a.) 7 : ; a . 75 x7 Cc " 200 Galleria Parkway, 5u1 a '’ > FP — _ — a hate ACianta, Georgia Savas | iw | fy 955 oho hehe (77 ~~ ea U Atrenrne. A+ Dorit 3 “ord ALLOULIICY UL Se We a & BS WIESS D - - _ — TT ~s 1 5 = —~ ars Counsel OL Kecora QUESTIONS PRESENTED FOR REVIEW Is it clear that Congress intended the Medicare “braces” benefit to be restricted by an administrative interpretation which deprives residents of nursing homes from a personal Medicare entitlement to braces which are used in conjunction with other medical or non- medical equipment (such as an arm, leg, back or neck brace attached to a wheeled base or to a wheelchair) ? Is HCFA Ruling 96-1's (“HCFAR 96-1) limitation of the Medicare “braces” benefit under 42 U.S.C. § 1395x(s) (9) to only those braces “which are used independently rather than in conjunction with, or as components of, other medical or non-medical equipment” a substantive change in the law which requires prior notice and comment under the Social — + WW Security Act (“SSA”) and the Administrative Procedure Act ( “APA” ) ? If HCFAR 96-1 is an interpretative ruling published without prior notice and comment, is it entitled to judicial deference? ll Eee PARTIES A. Petitioners Anne Warder As 2. Dorothy Bouchoux 3 Massachusetts Technologies, Therapeu nr Inc. e7 4. Florida Therapeutic Technologies, 5. The Orthotics (2 = Center, d/b/a OrthoConcepts OrthoConcepts, MATT other-sister corporatio areholders of each. w Respondents i Donna E. Shala Vi NO Zz ry Q Ke 5 - 3) ill an =] e.99 4 | iis witn {spo rnp sy | III. TABLE OF CONTENTS page: Questions Presented for Review....... i-ii A Pe oer eee ree Te eee ee ee iii pe ek ee ee eae iv Table of Cited Authorities......... v-viil Opinions and Orders Below.............. 1 Statement of Jurisdiction............... 2 U.S. Constitutional Provisions, Treaties, Statutes, Rules, and Regulations Involved................ 3-10 Statement Of Che Gas... c cece eearuss 11-13 PES 6 6. KAS AOR AS ORE Oe wee ee 14-24 iV oe eas IV. TABLE OF CITED AUTHORITIES Cases: Anne Warder, et al. v. Donna E. Shalala et al., (a> Cis., Gee. 7, F.3d 1998) Pages: Order denying rehearing)................ 1 Donna 149 F.3d Anne Warder et al. v. E. Shalala, 73, 57 Soc.Sec.Rep. Serv. (1* Cir.1996).... et al., Anne Warder, et al. v. E. Shalala, et al., No. 97-10424-MEL, 65 USLW 2799, Medicaid Guide Transfer Binder, Donn Medicare & (CCH) 1997-1 q 45,268 (D. Mass., May 7, Topeka & Santa Fe 44 F.3d 437 Atchison, Ry. Co. v. Pena, (7™ Cir. Chevron U.S.A., Inc. 847 1997 WL 263733, BOOT) 8 iwswen v. NRDC, 467 U.S. 9838 (1984)...15, 16, 1994) (en banc) ...........e06c.. a2 Elizabeth Blackwell Health Ctr. For Women v. Knoll, 61 £.3d 170 6) A 5 Ae: | rrr err eer 22 Garcia v. Secretary of Health & Human Serv., 46 F.3d 552 fan Cae. SO os cas case eeee esas 22 La Casa del Convalenciente v. Sullivan, 965 F.2d 1175 oo? ae. a ww 6 64 le a eee ee eee 18, 19 Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 115 S.CE. TASB CLGOR) < sincs wee eeu an sanee 22-23 Trans Union Corp. v. FTC, 81 P.28 266 . i3.C.. Cae. Bie as os oak eee 22 Statutes: 5 U.B.C.A. § SSS(B) 0. vce vcccataveses 19-20 28 U.8.C Gidea (8) oc eck sew ntaseener 2 42 U.8.C. | TISSRUR) . ce cescesscess 3-4, 17 42 U.S.C. § 139Sx (8) (6). 6 cc ewscswesees 4 42 U.S.C. § TESERIS) (9) «6.25045. 4, a3: Be rs AC oe Sa nA we Mad HI Cate we A ‘heaeh pilin nt pitin nL idns OS UB.C. § LIST. . 0. cc cccccccccaccnn. 19 SS U-B. CO. GLSGSEE . oon ccc cc cc ccccecvcceunn. 2 42 U.S.C.§1395x(e) (1) .... . 7 8 17 42 U.S.C.§1395i-3(a) (1)... . — me P.L. 101-508, §4152(c) (4) 2™° Sess., 1990 USCCAN at 2270...5-7, 17 Rules of the Supreme Court . . 2, 18, 21 Miscellaneous: Crouse, Benten v. Kesser: The Time for Uniformity in the Application of Section 553 of the Administrative Procedure _ Act Has Come, 7 ADMIN L.J. [SOP +45 hE eee ee EUS eri oO eee 20 H.R. No. 101-881. 1015 a eee 8-10, 17 Health Care Financing Administration Ruling mie PE EET Ore Be 24, 33, 12, 13, 14, 15, 16, 17, 18, 19, 29, 22, 23 Herz, Deference Running Riot: Separating Interpretation and V1l aw- in Vv 2 oe A a, . } ) ere ee 19 236 £.4,..8.. 3467 (3906). « «2 2 &-« 39-20 Scalia, Judical ren fe) Administrative Intrepretation of Law, 1989 DUKE L.J. 511 a to ee ee 15, 16, 20 Vill V. OPINIONS AND ORDERS BELOW a. Anne Warder, et al. v. Donna E. Shalala et al., F.3d (1% Cir., Oct. 7, 1998) (Order denying rehearing) b. Anne Warder et al. v. Donna E. Shalala, et al., 149 F.3d 73, 57 Soc.Sec.Rep. Serv. 847 (1% Cir. 1998) e. Anne Warder, et al. v. Donna BE. Shalala, et al., No. 97-10424- MEL, 1997 WL 263733, 65 USLW 2799, Medicare & Medicaid Guide (CCH) 1997-1 Transfer Binder, { 45,268 (D. Mass., May 7, 1997) VI. STATEMENT OF JURISDICTION Subject matter jurisdiction exists over this Medicare reimbursement dispute pursuant to 42 U.S.C. §i395ff and other applicable law. This Court has appellate jurisdiction, pursuant to 28 U.S.C. 1254(1), to review the decision of the Court of Appeals for the First Circuit. The Court of Appeals entered Judgment for the Secretary on July 27, 1998, the petition for rehearing was denied on October 7, 1998, and the Appellants filed a timely Petition Writ of Certiorari on 19 January 5, 99. Rules of the Supreme VII. U.S. CONSTITUTIONAL PROVISIONS SS Ye OF te ED TREATIES, STATUTES, RULES, AND REGULATIONS INVOLVED 42 U.S.C. § 1395x. Definitions (n) Durable medical equipment The term "durable medical equipment" includes iron lungs, oxygen tents, hospital beds, and wheelchairs (which may include a power-operated vehicle that may be appropriately used as a wheelchair, but only where the use of such a vehicle 1s determined to be necessary on the basis of the individual's medical and physical condition and the vehicle meets such safety requirements as the Secretary may prescribe) used in the patient's home (including an institution used as his home other than an institution that meets the requirements of subsection (e) (1) of this section or section 13951-3(a) (1) of this title), whether furnished on a rental basis or purchased, and includes blood-testing strips and blood glucose monitors for individuals with diabetes without regard to whether the individual has Type I or Type II diabetes or to the individual's use of insulin (as determined under standards established by the Secretary in consultation with the appropriate organizations); except that such term does not include such equipment furnished by a supplier who has used, for the demonstration and use of specific equipment, an individual who has not met such minimum training standards as the Secretary may establish with respect to the demonstration and use of such specific equipment. With respect toa seat-lift chair, such term includes only the seat-lift mechanism and does not include the chair. 42 U.S.C. § 1395x. Definitions (s) Medical and other health services The term "medical and other health services" means any of the following items or services: ee (6) durable medical equipmen 9) leg, arm, back, anc Nn braces, and artificial legs, arms and eyes, including replacements required because of a change 1 - 4 ake ’ . vr . > | lala aT. ne pat L1éeTriv S pnysic aud Ina I + P.L. 101-508, § 4152(c) (4) (3) TREATMENT OF POWER-DRIVEN WHEELCHAIRS AS MISCELLANE OF DURABLE MEDICAL EQUIPMENT > » + o Z@ W D> —~ @ © — @ — N fe SE | W— 1) t Q t ct ~~ cG O 1395m(a) (2) (A is ame i in clause I Whi ¥ OUS 0 (i) ain clause (i), by inserting “or” at the end; (ii) in clause (ii), by striking "or" at the end; and (iii) by striking clause (111). (B) CRITERIA FOR TREATMENT OF WHEELCHAIR AS CUSTOMIZED ITEM. - (i) Section 1834(a) (4) (42 U.S.C. 1395m(a) (4)) 1s amended by adding at the end the following: "In the case of a wheelchair furnished on or after January 1, 1992, the wheelchair shall be treated as a customized item for. purposes of this paragraph if the wheelchair has been measured, fitted, or adapted in consideration of the patient's body size, disability, period of need, or intended use, 6 and has been assembled by a supplier or ordered from a manufacturer who makes available customized a i=) Cures, modifications nstructions from the — The amendment made by Ciause (1) shall apply tc items furnished on or after January 1, 1992 unless the Secretary develops specific criteria before that date fo r Creatment of wheelchairs + H.R. No. 101-881,101°%* Cong. 2™° Sess., 1990 USCCAN at 2270 Non-custormized motorized wheelchairs would be recategorized back into the rental cap category of equipment. The option for treating wheelchairs as customized would not be changed. If the Secretary does not issue regulations defining "customized" wheelchairs by January 1, 1992, a statutory definition would become effective. Under this definition, a customized power driven or manual wheelchair would be defined as a wheelchair which has been: (1) measured, fitted, or adapted in consideration of a patient's body size, disability, length of need or intended use; and (2) has been assembled by the supplier or ordered through a manufacturer who make available customized features, modifications or components that are intended for a specific patient's use in accordance with a physician's order. eee In applying this definition, the Committee intends that examples of features that are only available in customized equipment may include, but are not limited to: (1) semi or full reclining backs, (2) Special heights for arms, seats or backs, (3) special width or depth of seat, (4) attachments to convert wheelchairs to one-armed drive, (S) postural contro] devices, (6) custom molded cushions and inserts, or lateral Supports. This definition would become effective on January 1, 1992, unless the Secretary provides for an alternative definition of customized wheelchairs prior to January 1, 1992, in which case the provision would not be effective. The Secretary would establish a reasonable useful lifetime of rental equipment, including frequently serviced items. The useful lifetime would be 5 years, unless the Secretary finds, based On program experience, that a longer or shorter period is appropriate for an item. After an item's useful lifetime is reached during a continuous period of medical necessity, the Secretary would provide for a new cycle of rental payments. Carriers would be permitted to make exceptions, and begin a new cycle of rental payments, for equipment that is lost or irreparably damaged. Such exceptions would only be authorized after special consideration and scrutiny of the circumstances by the carrier. 10 Jinks “aaivetod bei VIII. STATEMENT OF THE CASE Section 1861(s) (9) of the Social Security Act (42 U.S.c. §1395x(s) (9)) bluntly states that Medicare beneficiaries are entitled to “leg, arm, back and neck braces.” No court has been asked to define what constitutes a “brace” under the Social Security Act. In Health Care Finance Administration Ruling 96-1 (“HCFAR 96-1") and without explicit congressional direction to do So, the Secretary limited the meaning of “leg, arm, back, and neck braces” to only those braces which “are used independently rather than in conjunction with, or as compcnents of, other medical or non-medical equipment. ” HCFAR 96-1 further Simply deemed “braces” which are used in conjunction with other medical or non-medical equipment to be “durable medical equipment” (“DME”). By such deeming, HCFAR 96-1 transforms, for example, an arm brace mounted on an exoskeletal base Or on a wheelchair from a “brace” to 1] “ DME “ : Certain residents of nursing homes suffer such complete musculo-skeletal failure that their braces must be fabricated for use in conjunction with, or as components of, other medical or non-medical equipment. For example, braces for such catastrophically disabled patients often must be anchored to or mounted on medical or non-medical equipment (such as an exoskeletal base or a wheelchair) in order for their braces to properly perform their bracing function. HCFAR 96-1 removes such braces from the personal Medicare benefits (namely, those under Medicare Part B) of such catastrophically disabled patients in nursing homes. There is no other benefit under Medicare which could reliably provide an alternative source of such braces to catastrophically disabled patients in nursing homes. This deprivation caused by HCFAR 96-1 occurs because DME is not a covered personal benefit under Medicare to residents of 12 ee eee—————o SA Chg a er rrre re. nursing homes. If not an outright abrogation of the Medicare “braces” benefit for catastrophically disabled residents of nursing homes who need braces, then, Petitioners contend, HCFAR 96-1 is a substantive change in the law and required prior notice and comment. The District Court ruled, inter alia, that HCFAR 96-1 effected a substantive change in Medicare law, which required prior notice and comment under the Administrative Procedure Act and the Social Security Act. The District Court enjoined the Secretary from enforcing HCFAR 96-1. The Court of Appeals reversed the District Court. Petitioners here appeal the decision of the First Circuit Court of Appeals. — LJ IX. ARGUMENT he Is it clear that Congress intended the Medicare “braces” benefit to be restricted by an administrative interpretation which depriv residen f nursing hom rom a rsonal Medicare entitlement to aces which are used in conjunction with other medical or non- medical equipment (such as an arm, leg, back or neck brace attached to a wheeled base or to a wheelchair) ? Petitioners submit that it is clear that Congress did not intend for braces to be denied to catastrophically disabled Medicare beneficiaries who are residents of nursing homes. Yet, such denial is precisely the effect of HCFAR 96-1. Because of its impact on the weakest members of society, the validity of HCFAR 96-1 raises an important question of federal law that has not been, but should be, settled by the 14 ae ae ee TO SS CR wer St 2D ean Supreme Court. Rules of Supreme Court (*RSC”) 10. The above question and Petitioners’ submitted answer above provide a departure point for analysis of the validity of HCFAR 96-1 under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 8737 (1984). As Justice Scalia has noted in discussing Chevron, where Congress intended a particular result, but was not clear about it . . . what we have is genuinely a question of law, properly to be resolved by the courts. Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 DUKE L.J. Sal, Sis. As Justice Scalia noted further in the same article, Here [referring to the question of how to determine whether the Congressional intent is clear Or ambiguous] .. . is the chink in Chevron’s armor -- the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions How clear is clear? Id. at 520. Petitioners’ case provides an opportunity for the Court to “fill the chink in Chevron’s armor” by providing guidance to answer Justice Scalia’s question of “How clear is clear?” in assessing whether Congress has spoken clearly enough, so as to preclude an administrative rule (such as HCFAR 96-1) which frustrates Congress’ intent to provide braces to patients in nursing homes. The question of “How clear is clear?” is an important question of federal law which has not been, but should be, decided by the Supreme Court. When Congress intends not to provide a benefit to patients in a nursing home, 16 it does so plainly. It did so in denying DME benefits to patients in nursing homes by defining coverage for DME to be limited to use in a patient’s “home” (which is defined as other than a hospital under 42 U.S.c. §1395x(e) (1) or a skilled nursing facility under 42 U.S.C. 1395i-3(a)(1)). 42 U.S.C. § 1395x(n). Congress has also shown that it 1S capable of expressing its intent that the Secretary further define DME, as it did when it required the Secretary to promulgate regulations defining a customized wheelchair. P.L. 101-508, § 4152(c) (4); H.R. No. 101-881, 101%* Cong. 2™° Sess., 1990 USCCAN at 2770. Congress has shown no intent to limit the brace benefit by constrictive interpretations issued without notice and comment. Is HCFA Ruling 96-1's (“HCFAR 96-1") limitation of the Medicare “brace” benefit under 42 U.S.C. § 1395x(s) (9) to only those braces "which are used N independently rather than in conjunction with, or as components of, other medical or non-medical ipment” a ubstantive chan in the law which requires prior notice and comment under the Social Security Act (“SSA”) and the Administrative Procedure Act (“APA”)? HCFAR 96-1 is a substantive (a/k/a “legislative”) rule, rather than an interpretive rule because it imposes obligations, the basic tenor or which is not already outlined in the law itself La Casa del Convaleciente v. Sullivan, 965 F.2d 1175, 1178 (1% Cir. 1992). Among other burdens, an obligation imposed by HCFAR 96-1 which is not already outlined in the law is that HCFAR 96-1 deprives catastrophically disabled Medicare beneficiaries who reside in nursing homes of a right to braces, simply because the fabrication of their braces necessitates the use of such braces in conjunction with other medical 18 EEE ORs Kae SW UAL Sense oe) aie nme we oe Or non-medical equipment. Nowhere on the face of the Medicare brace benefit, set forth in 42 U.S.C.§1395x(s) (9), did Congress hint at Such a restriction. Because Congress did not hint at such a restriction, HCFAR 96- 1 cannot be an interpretation of existing law. Therefore HCFAR 96-1 should have been published for notice and comment pursuant to the SSA and the APA. 42 U.S.C. §1395hh and 5 U.S.C. §553(b). Nevertheless, the above question presents an important question of federal law that has not been, but should be, decided by the Supreme Court. As the irst Circuit noted in Petitioner’s case The line between a legislative or substantive rule and an interpretative one is, as many courts have noted, far from clean. Ann Warder, et al. v. Donna E. Shalala, et al., 149 F.3d 73, 79 (1%* Cir. 1998), citing e.g., Convaleciente, 965 F.2d at 1177. See also, What Constitutes 19 “Interpretative Rule” of Agency So As to Exempt Such Action from Notice Requirements of Administrative Procedure Act (5 U.S.C.A. §553(B) (3) (A), 126 A.L.R. 347 (1995); Herz, Deference Running Riot: Separating Interpretation and Law-marking Under Chevron, 6 ADMIN. L.J. (1992); Crouse, Benten v. Kesser: The Time for Uniformity in the Application of Section 553 of the Administrative Procedure Act Has Come, 7 ADMIN. L.J. (1993). 2 If HCFAR 96-1 is an interpretative ruling published without prior notice and comment, is it entitled to judicial deference? This is an important question of federal law that has not been, but should be, settled by the Supreme Court. Chevron involved a rule issued with prior notice and comment. Such prior notice and comment was calculated to involve appropriate political participation. See Scalia, Id. at 517. HCFAR 96-1's promulgation without notice and comment raises an important issue of whether 20 judicial deference should be given to an agency interpretation made without prior public, outside expert, or political involvement and accountability as contemplated by the notice and comment provisions of APA and the SSA. Moreover, the Supreme Court should decide this question because fy ¢ oy = ct 4) QO, — ct ey ct 4) 63) 2) O ¢ Ky ct O rh wm @) 4 @) 4) jv } 4 69) a) U entered a decision fon this question] in conflict wi decision of another Un court of appeals on the same important matter. A threshold question is what deference is owned to an interpretative rule such as HCFAR 96-1. The Supreme Court has not expressed a view on whether or to what extent the Chevron framework 21 a OL applies to interpretive rather than legislative rules, and other circuits are split on the issue.” (Emphasis supplied), citing at footnote 8: Compare Trans Union Corp, v, FIC, 61 F.3G@ gee, eee sc. Cir 1996) (“[W]e have extended Chevron deference to agency interpretive rules .. . indeed, the rule at issue in Chevron itself appears to have been interpretive.”), and, Elizabeth Blackwell Health Ctr. For Women v. Knoll, 61 F.3d 170 (3d Cae. 1995) (equal deference), and, Garcia v. Secretary of Health & Human Servs., 46 F.3d 552, 556 (6 Cir. 1995) (same) with Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 442 (7 Cir. 1994) (en banc) (concluding that interpretive rules are “underserving of deference under Chevron”). The question of whether deference should be extended to HCFAR 96-1 was not answered by Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 115 S. Ct. 1232 (1995). Guernsey involved a narrow gap 22 “unaddressed by the otherwise to Guernsey’s gap, ontrast O* WV © O tH + U v | Q 7 ”) H i) =~ a U) “A i M4 8) Oy comprehensive regula on i s¢ dresses a who ad U Medi an enumerated set forth ces” as “bra eh 4 oh nak we es about / ipment equ ason L¢ he above For t by 4 required > BN Le “y Respectfully submitted, i \ - 2° +T:At (ee P rT ~ KELLY LAW FIRM, P.C ry ‘\ A) 1 aes a I= +L he Z2uv Gnd a Gee aoe Paz KRwWay Ae |] awn = ms ~— ALAJalita, weordia ,3F ~~ 2 ae omen oe pe < L --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1143%3A1. Public record. Not legal advice.