Petition for Writ of Certiorari — Adena Regional Regional Medical Medical Medical Center Center v. Johnson (No. 08-818)
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Jn the Supreme Court of the Anited States
ADENA REGIONAL MEDICAL CENTER; ET AL..,
Petitioners,
vs
MICHAEL O. LEAVITT, SECRETARY OF THE UNITED
STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
MURRAY J. KLEIN
Counsel of Record
JAMES C. MARTIN
KIM M. WATTERSON
DAVID J. BIRD
REED SMITH LLP
Princeton Forrestal Village
136 Main St., Suite 250
Princeton, NJ 08540
(609) 520-6022
December 24, 2008 Counsel for Petitioners
1
QUESTION PRESENTED
In calculating the Medicare disproportionate
share hospital (DSH) adjustment, the Medicare
statute directs the Secretary of Health and Human
Services to count days attributable to patients who
are “eligible for medical assistance under a State
plan approved under [Title XIX of the Social Security
Act, which establishes the Medicaid program].” 42
U.S.C. § 13895ww(d)(5)(F)WI)CUD (the “Medicaid Low
Income Proxy”).
The question presented, on which the federal
courts of appeals are in conflict, is whether the
Medicaid Low Income Proxy requires the inclusion of
all patient days attributable to patients who are
eligible for medical treatment under an approved
State Medicaid plan or only those patient days for
which a hospital actually receives payment from the
Medicaid program (i.e., Medicaid “paid” days).
11
LIST OF PARTIES AND RULE 29.6
STATEMENT
Petitioners are Adena Regional Medical Center;
Alhance Community Hospital; Community Health
Partners West Campus; Cuyahoga Falls General
Hospital; East Liverpool City Hospital; Ft.
Hamilton-Hughes Hospital; Good Samaritan
Hospital & Health Center; Licking Memorial
Hospital; Marietta Memorial Hospital; MedCentral
Health System; Med-Health System-Greence;
Memorial Hospital; Medical College Hospital;
MetroHealth Medical Center; Miami Valley
Hospital; MiddleTown Regional Hospital; Robinson
Memorial Hospital; Southern Ohio Medical Center;
St. Elizabeth Health Center; St. Joseph Health
Center; Summa Health System; Trinity Health
System; University of Cincinnati Hospital; Western
Reserve Care System; Community Health Partners
East Campus; and Trumbali Memorial Hospital.
Pursuant to S.Ct. R. 29.6, Petitioners Adena
Regional Medical Center, et al. are not-for-profit
corporate entities. There is no parent company,
subsidiary, or affiliate of any Petitioner that has
outstanding securities in the hands of the public,
and there is no publicly held corporation that owns
10 percent or more of the stock of any Petitioner.
iil
TABLE OF CONTENTS
Page
QUESTION PRESENTED ................ccscscccccsessoncessess i
LIST OF PARTIES AND
RULE 29.6 STATEMENT ....<................0000000 ll
SPR als CE IE Tk cis essncevsstcencvcnveaysaneasnssnsuniens il
TP CO FT sn isecsiises cesscacensalivv ensaivs vii
re I caseiscssiniivieenierncienaceaues 1
RE NIT sie saseccvsS ois ven ahendecenacemsoueineens 1
STATUTORY PROVISION INVOLVED ................ 2
ee Ne itis cieneseteaansembiatiet dass 3
a Statutory And Regulatory Background........ 3
A. Congress Has Mandated An
Adjustment In Medicare Funding For
Hospitals Based In Part On Days Spent
Serving Patients “Eligible For Medical
Assistance Under An [Approved] State
SET US eatievcecinndvscivatiakensanivens 3
B. Medicaid Provides States With
Considerable Discretion In Formulating
Plans To Serve Low Income Patients,
Both With Respect To Persons Covered
And The Scope And Duration Of
Cr TOP WIONE oss ose cae 5
iV
Ohio Has Adopted A Medicaid Plan
That Mandates Free Medical
Treatment To Low-Income Ohio
Residents Covered By The Ohio
Hospital Care Assurance Program
TE sicdecxneesingiaininds eddeienttensincceoucoicens 6
II. Facts And Proceedings Below....................... 8
A.
Petitioners File This Action To Have
HCAP Patients Included In The
Calculation Of Their Medicare DSH
Pe hii lini cs tap varabsicbarcgiaoosieiscdies 8
The District Court Enters Judgment
For Petitioners, Consistent With
Unanimous Circuit Authority, Holding
That HCAP Patients Must Be Included
In The Calculations Of Medicare DSH
PI a hiiiidssedeisinttankoitidisieninatennents 8
The D.C. Circuit Reverses The
Judgment, Adopting A More Restrictive
Reading Of The Medicaid Low Income
Proxy And Holding That The Statute
Does Not Reach Patients Who
Are Not Eligible For Payment
FF PUMA PII, Sais cecnntcrncienvncessinnceracerivens 10
.4
REASONS FOR GRANTING THE WRIT
I. The Decision Below Conflicts With Decisions
Of Other Circuits Construing The Statutory
Formula For Calculating The Medicare DSH
SR 14
A. Four Circuit Courts Have Held That
The Medicare DSH Adjustment Must
Include All Days Attributable To
Patients Who Are “Eligible” To Receive
Medical Treatment “Under” An
Approved State Medicaid Plan,
Whether Paid Directly By Medicaid Or
Cees vanecmennewes 14
The D.C. Circuit Has Adopted A More
Restrictive Reading Of The Statute
That Makes “Payment” Under Medicaid
A Prerequisite For Inclusion In The
Calculation Of The Medicare DSH
Adjustment
The Resolution Of The Conflict Presented Is
Critically Important To The Uniform
Administration Of The Medicare System And
The Provision Of Medical Services To Low-
ESS 26
CONCLUSION
APPENDIX
Adena Regional Medical Center v. Leavitt,
527 F.3d 176 (D.C. Cir. 2008)
Adena Regional Medical Center v. Leavitt,
524 F. Supp. 2d 1 (D.D.C. 2007)
Adena Regional Medical Center v. Leavitt,
Order, No. 1:05-cv-02422-GK (D.D.C.
June 11, 2007)
Adena Regional Medica! Center v. Leavitt,
No. 07-5273 (D.C. Cir. July 31, 2008)
(per curiam) (denial of panel rehearing)
Adena Regional Medical Center v. Leavitt,
No. 07-5273 (D.C. Cir. July 31, 2008)
(per curiam) (denial of rehearing en banc)
Vil
TABLE OF AUTHORITIES
Page
CASES
Atlantic Cleaners & Dyers, Inc. v. United States,
I ee iv rassesicded cack vevecs cxawceverdavaceriesmneee 23
Cabell v. Huntington Hospital, Inc. v. Shalala,
101 F.3d 984 (4th Cir. 1996) passim
Deaconess Health Services Corp. v. Shalala,
83 F.3d 1041 (8th Cir. 1996) passim
Evanston Hospital v. Hauck,
No. 92 C 732, 1992 WL 205900 (N.D. III.
Aug. 19, 1992), aff'd, 1 F.3d 540
ON eae ans uawawesciniayuranssvecveets 23
In re Medicare Reimbursement Litigation,
414 F.3d 7 (D.C. Cir. 2005)
Jewish Hospital, Inc.. v. Secretary of Health and
Human Services, 19 F.3d 270
(6th Cir. 1994) passim
Legacy Emanuel Hospital and Health Center v.
Shalala, 97 F.3d 1261 (9th Cir. 1996) passim
Portland Adventist Medical Center v. Thompson,
399 F.3d 1091 (9th Cir. 2005)
Rastetter v. Weinberger,
379 F. Supp. 170 (D. Ariz. 1974), affd,
419 U.S. 1098 (1975)
Samaritan Health Center v. Heckler,
636 F.Supp. 503 (D.D.C. 1985)
Sullivan v. Stroop,
496 U.S. 478 (1990)
Vill
STATUTES
BE Be vaiddstiskesicisatinrcosene ene 3
SEUSS, © FI iii vhevsssndericeiniciccdl cet a
42:U.5.C. § 19O5wwd)(1)-(4) ..........cccsccccsscscvcccsescceseees 3
42 U.S.C. § LSSGwwl GBP RY). .x...ccccccccscocscssocccessaneces 4
42 U.S.C. § 1895ww(d)(5)(F)(vi))).... ee 5, 6, 17
42 U.S.C. § 1895ww/(d)(5)(F)(vi) (ID) «eee. passim
43. CK. 3 Fikcdeivitbiniciimiiieomian 6
Consolidated Omnibus Budget Reconciliation Act of
1985, PEs. DOTS CA aoc. ssviccsecdensssveciveisusceeamnes 4
Ohio Rev. Code. § 6112.17(B) .................cccsecceccessess 6.7
REGULATIONS
CFs Pi Ri sovissteviescvccteniee eee 3
CF UF ak 6 bivkcitkccshiiceedanee 25, 26
BOCA CO skis ee 6
Ohio Admin. Code 5101:3:2-07.17 .................cscccees- 6, 7
Ohio Admin. Code 5101:3:2-09(K) ................cecceeeeee 6, 7
OTHER AUTHORITIES
ROE Cree: Bie, I soins ssn sacscveskccvescanesicctnaee 3
1
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully submit this petition for a
writ of certiorari to review the judgment_of the
United States Court of Appeals for the District of
Columbia Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the District of Columbia Circuit is published at
527 F.3d 176 (D.C. Cir. 2008). App. la. The opinion
decided Respondent’s appeal from a memorandum
and order of the United States District Court for the
District of Columbia, which is published at 524 F.
Supp. 2d 1 (D.D.C. 2007). App. 10a.
JURISDICTION
The United States Court of Appeals for the
District of Columbia Circuit entered judgment on
May 30, 2008. Petitioners filed a timely petition for
panel rehearing and rehearing en banc in the Court
of Appeals on July 14, 2008. The Court of Appeals
denied the petition for panel rehearing and
rehearing en banc on July 31, 2008. App. 21a-22a.
The time for filing this petition was extended to
December 28, 2008 by orders of the Chief Justice and
Justice Stevens. No. 08A34 (Oct. 21, 2008; Nov. 18,
2008).
2
STATUTORY PROVISION INVOLVED
The Medicaid Low Income Proxy of the Medicare
disproportionate share hospital (DSH) adjustment is
defined as:
the fraction (expressed as a percentage), the
numerator of which is the number of the
hospital's patient days for such period which
consist of patients who (for such days) were
eligible for medical assistance under a State
plan approved under [Title XIX of the Social
Security Act, which establishes the Medicaid
program], but who were not entitled to
benefits under part A of this subchapter [the
Medicare statute], and the denominator of
which is the total number of the hospital's
patient days for such period.
42 U.S.C. § 1395ww(d)(5)(F)Wi(ID) (the “Medicaid
Low Income Proxy’).
3
STATEMENT
I. Statutory And Regulatory Background
A. Congress Has Mandated An Adjustment
In Medicare Funding For Hospitals
Based In Part On Days Spent Serving
Patients “Eligible For Medical Assistance
Under An [Approved] State [Medicaid]
Plan.”
Medicare is a federal health insurance program
that pays for covered medical care primarily to aged
and disabled persons. 42 U.S.C. §§ 1395, et seq. Since
1983, reimbursement for hospitals’ operating costs
under Medicare has been’ governed by _ the
Prospective Payment System (PPS), 42 U.S.C.
§ 1395ww(d). Under the PPS, an_ individual
hospital’s Medicare reimbursement is based not on
its actual costs of treating Medicare patients, but on
a predetermined amount for each patient depending
on the patient’s diagnosis at time of discharge. 42
U.S.C. § 13895ww(d)(1)-(4); 42 C.F.R. Part 412.
In 1983, Congress determined that hospitals that
serve a disproportionately large number of low-
income patients incur greater costs that are not met
by the standard PPS calculation. Congress
authorized the Secretary of the Department of
Health and Human Services (HHS) to provide an
adjustment, called the Medicare disproportionate
share hospital (DSH) adjustment, to hospitals that
serve a disproportionate share of low-income
persons. See 131 Cong. Rec. $10931.__
The Secretary refused, however, to promulgate
regulations implementing the PPS and Medicare
4
DSH adjustment. See Jewish Hospital, Inc. v.
Secretary of Health and Human Services, 19 F.3d
270, 272 (6th Cir. 1994) (noting the Secretary’s long-
standing “hostility” toward the PPS and Medicare
DSH adjustments); Samaritan Health Center uv.
Heckler, 636 F. Supp. 503 (D.D.C. 1985) (chronicling
the Secretary's unwillingness to promulgate PPS
and Medicare DSH regulations).
When the Secretary refused to act, Congress did.
In 1986, it pased the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), Pub. L. No. 99-
272 (1986). In COBRA, Congress included a
provision creating and defining the Medicare DSH
adjustment. Id. at § 9105. Congress ordered the
Secretary to provide a Medicare DSH adjustment to
PPS payments for ~ hospitals serving a
disproportionately large number of low-income
patients, and it mandated a specific formula for
calculating that adjustment. Id.
Under the statutory formula, a hospital qualifies
for a Medicare DSH _= adjustment if _ its
“disproportionate patient percentage” meets or
exceeds levels specified in 42 U.S.C.
§ 1395ww(d)(5)(F)(v). The hospital’s disproportionate
patient percentage is “defined as the sum of two
fractions expressed as percentages,” which serve as a
“proxy for all low income patients.” Jewish Hospital,
19 F.3d at 272.
The first fraction accounts for the number of
“patient days” that e hospital spends serving
patients who are “entitled” to Medicare Part A
benefits and supplemental security income. 42
U.S.C. § 1395ww(d)(5)(F)(vi)(1). This fraction, known
+s)
as the “Medicare Low Income Proxy” or the
“Medicare Fraction,” is not at issue in this case.
The second fraction accounts for “patient days”
that a hospital spends serving patients who are
“eligible for medical assistance under a State plan
approved under [Title XIX of the Social Security Act,
establishing the Medicaid program], but who were
not entitled to benefits under part A of [the Medicare
statute]. 42 U.S.C. § 1895ww(d)(5)(F)\(i)dD. The
construction of this second fraction—commonly
known as the “Medicaid Low Income Proxy” or the
“Medicaid Fraction’”—is at issue here.
B. Medicaid Provides States With
Considerable Discretion In Formulating
Plans To Serve Low Income Patients,
Both With Respect To Persons Covered
And The Scope And Duration Of Covered
Services.
Medicaid is a joint federal-state program,
established by Title XIX of the Social Security Act.
it provides health care benefits to indigent persons
who are aged, blind, or disabled or members of
families with dependent children. 42 U.S.C § 1396 et
seq. Medicaid operates separately and apart from
Medicare. However, like Medicare, Medicaid also
provides for additional payments to hospitals that
serve a disproportionate share of low-income
patients—an adjustment known as the Medicaid
disproportionate share hospital adjustment.
Under Medicaid, cach state must submit to the
HHS Secretary a state “plan for medical assistance”
that meets broad federal requirements. That plan
6
must be approved by the Secretary under Title XIX
of the Social Security Act. 42 U.S.C. § 1396a.
Within broad federal requirements, states are
given discretion to determine the rules of eligibility,
the type and range of services covered, and the
payment levels for services under the _ state’s
Medicaid plan. 42 C.F.R. § 480.0. As a result,
Medicaid plans vary from state to state, both with
respect to persons covered and the scope and
duration of covered services. 1
C. Ohio Has Adopted A Medicaid Plan That
Mandates Free Medical Treatment To
Low-Income Ohio Residents Covered By
The Ohio Hospital Care Assurance
Program (HCAP).
Ohio participates in the Medicaid program and
has adopted a plan of medical assistance that has
been approved by the Secretary. App. 13a. The Ohio
State Medicaid plan covers the individuals and
services required by federal Medicaid statutes and
regulations. Id. The Plan also mandates that
hospitals provide free medical treatment to low-
income Ohio residents who are ineligible for
payments from Medicaid but who are covered by the
Ohio Hospital Care Assurance Program (HCAP),
Ohio Rev. Code § 5112.17(B), Ohio Admin. Code
1 For example, a number of states have Medicaid plans that
limit the number of days of in-patient care for which Medicaid
will pay. See, e.g., Legacy Emanuel Hospital and Health Center
v. Shalala, 97 F.3d 1261, 1262 (9th Cir. 1996); Cabell v.
Huntington Hospital, Inc. v. Shalala, 101 F.3d 984, 986 (4th
Cir. 1996).
7
§101:3-2-07.17 and 5101:3-2-09(K)(5)(c). App.
13a-14a.
Under the Ohio State Medicaid plan, each
hospital must provide “basic medically necessary
hospital-level services” free of charge to patients who
are residents of the State with income at or below
the federal poverty line and not otherwise recipients
of payments from Medicaid (“HCAP patients”).
App. 5a-7a, 13a-14a (citing regulations included in
the Ohio State Medicaid plan defining eligibility for
free “basic medically necessary hospital-level
services” and further defining the scope of “basic
medically necessary hospital-level services” under
the Plan).
The Ohio plan further provides that patient days
attributable to HCAP patients must be considered in
calculating a hospital’s Medicaid DSH adjustment.
App. 5a-7a, 13a-14a (citing Ohio Admin. Code
5101:3-2-07.17 and noting that that regulation was
approved by the Secretary on April 6, 2001 for
inclusion in Qhio’s State Medicaid Plan); Ohio
Admin. Code 5101:3-2-09(K)(5)(c)). Thus, the Ohio
State Medicaid plan unambiguously provides
hospitals with the opportunity to receive increased
Medicaid funding through Medicaid DSH
adjustments by providing services to HCAP patients,
free of charge. App. 6a. And, in accord with the plan,
hospitals (including Petitioners) have _ received
Medicaid DSH adjustments based in part on the
inclusion of patient days attributable to HCAP
patients.
8
II. Facts And Proceedings Below
A. Petitioners File This Action To Have
HCAP Patients Included In ‘The
Calculation Of Their Medicare DSH
Adjustments.
Petitioners are twenty-five Ohio hospitals that
participate in Medicare and Medicaid and seek to
have patient days attributable to HCAP patients
included in the calculation of their Medicare DSH
adjustments. App. 2a, 10a, 13a-14a. The Secretary,
through his fiscal intermediaries, refused to include
HCAP patient days in the calculation of Petitioners’
Medicare DSH adjustments. Jd. Petitioners brought
this action in federal court to challenge the
Secretary’s exclusion of HCAP patient days from the
calculation of their Medicare DSH adjustments. Id.
B. The District Court Enters Judgment For
Petitioners, Consistent With Unanimous
Circuit Authority, Holding That HCAP
Patierits Must Be Included In The
Calculations Of Medicare DSH
Adjustments.
The district court entered summary judgment in
Petitioners’ favor, finding that: (1) the Medicaid Low
Income Proxy unambiguously required the inclusion
of patient days attributable to patients who are
“eligible for medical assistance under a State plan
approved under [Title XIX of the Social Security Act,
establishing the Medicaid program]”; and (2) HCAP
patients are eligible for medical assistance under the
Ohio State Medicaid plan, which has been approved
by the Secretary under Title XIX of the Social
9
Security Act. App. 14a-18a (construing 42 U.S.C.
§ 1395ww(d)(5)(F)(vi) (ID).
In reaching this conclusion the court considered
and rejected the Secretary’s argument that the
statutory phrase “eligible for medical assistance
under a State plan approved under [Title XIX of the
Social Security Act]” was simply “long-hand” for
“eligible” for payments from Medicaid. App. 14a-18a.
“The statutory formula unambiguously directs the
Secretary to include all “patients who ... were eligible
for medical assistance under a State plan approved
under [Title] XIX” in the Numerator [of the Medicaid
Low Income Proxy. Id. “Congress said what it meant;
if Congress had meant to restrict the Numerator to
Medicaid-eligible patients, it could have explicitly
done so. The phrase ‘eligible for medical assistance
under a state plan approved under Title XIX is not
‘long-hand’ for ‘eligible for Medicaid.” App. 16a
(emphasis in original). Because the regulations
mandating treatment of HCAP patients were
included in a “state plan approved under Title XIX,”
“the Secretary's exclusion of HCAP patients is
inconsistent with the plain language of the statute
and cannot be upheld.” Jd.
The specific application of the Medicaid Low
Income Proxy’s statutory language to HCAP patients
was an issue of “first impression in federal courts.”
Id. But the district court noted that the Medicaid
Low Income Proxy’s language had been construed in
a number of circuit court opinions. App. 16a-18a.
“Every circuit court” that had construed the
Medicaid Low Income Proxy had found that the
statute unambiguously required the Secretary to
count all patients who are “eligible for medical
assistance under a State plan approved under [Title
10
XIX of the Social Security <Act],” regardless of
whether the hospital “actually received” payment
from Medicaid for patient days attributable to that
patient. App. 16a-18a (citing Jewish Hospital, Inc.,
19 F.3d at 273-76; Deaconess Health Services Corp.
v. Shalala, 83 F.3d 1041 (8th Cir. 1996); Legacy
Emanuel Hospital, 97 F.3d at 1265-66; Cabell, 101
F.3d at 986-93).
C. The D.C. Circuit Reverses The Judgment,
Adopting A More Restrictive Reading Of
The Medicaid Low Income Proxy And
Holding That The Statute Does Not
Reach Patients Who Are Not Eligible For
Payment From Medicaid.
The Secretary appealed, and a panel of the Court
of Appeals for the District of Columbia Circuit
reversed, App. la-9a. Based upon its own reading of
the Medicare statute, the panel concluded that
HCAP patient days were properly excluded from the
calculation of Petitioners’ Medicare DSH
adjustments because HCAP patients are not “eligible
for medical assistance under a State plan approved
under [Title XIX of the Social Security Act,
establishing the Medicaid program].” App. 3a-9a.
The panel acknowledged that (1) the Ohio State
Medicaid plan includes provisions mandating that
Petitioners provide medical treatment to low-income
Ohio residents who meet the HCAP eligibility
requirements set forth in the Plan and further
mandating that HCAP patient days be counted in
the Petitioners’ Medicaid DSH adjustments; and
(2) the Plan, including its HCAP provisions, had
been approved expressly by the Secretary under
Title XIX (governing Medicaid). App. 3a-9a. But the
11
panel nevertheless held that HCAP patients were
not “eligible for medical assistance under a State
plan” because Petitioners received no direct payment
from the Ohio State Medicaid plan for providing
medical treatment to HCAP patients. Id.
The panel reasoned that HCAP provisions
included in the Ohio State Medicaid plan were not
“part” of the plan within the meaning of the
Medicaid Low Income Proxy because _ these
provisions did not provide the Hospitals with a right
to receive payments from Medicaid for HCAP patient
days. App. 4a-6a.
The panel similarly construed the statutory term
“medical assistance” to cover only “payments” made
directly to Petitioners from Medicaid to reimburse
them for the cost of providing medical care and
services to patients. App. 7a-9a. In reaching this
conclusion, the panel acknowledged that the
Medicare statute did not define the term “medical
assistance” in any respect. Jd. The panel concluded,
however, that (1) the term had to be construed to
have the same meaning as in the federal Medicaid
statute and (2) so defined, the term did not cover
mandatory medical treatment and services that a
hospital must provide at no charge under an
approved State Medicaid plan. /d.
REASONS FOR GRANTING THE WRIT
This Court should grant certiorari to decide
whether the Medicaid Low Income Proxy requires
the Secretary to calculate the Medicare DSH
adjustment based on all patient days attributable to
patients who are eligible for medical treatment
12
under an approved State Medicaid plan or only those
patient days for which a hospital receives payment
from the Medicaid program (i.e., Medicaid “paid”
days). This Court has not directly addressed the
construction of the Medicaid Low Income Proxy. The
Courts of Appeals, however, are in_ conflict
concerning the statute’s construction, and the D.C.
Circuit now has adopted a restrictive construction of
the Medicaid Low Income Proxy that holds that a
patient is “eligible for medical assistance under a
State plan approved under [Title XIX of the Social
Security Act governing Medicaid]” if and only if a
hospital receives payment for the patient’s treatment
from the Medicaid program. App. 3a-Ya.
The D.C. Circuit’s restrictive construction of the
Medicaid Low Income Proxy has the effect of
excluding from the calculation of Medicare DSH
adjustments days of service to patients that are not
paid directly by the Medicaid program. In contrast,
the Fourth, Sixth, Eighth, and Ninth Circuits each
have held that the Medicaid Low Income Proxy
requires the iuclusion of all days spent serving
patients who are eligible to reccive medical
treatment and services under an approved State
Medicaid plan, regardless of whether the Medicaid
program actually pays the hospital for the costs of
providing those days of service.
The D.C. Circuit’s construction of the Medicaid
Low Income Proxy cannot be reconciled with the
decisions of the Fourth, Sixth, Eighth, and Ninth
Circuits described above. The differences in the
circuits’ construction of the statute, moreover, are
consequential to the outcome of cases, like this one,
involving the calculation of Medicare DSH
adjustments, leading to inconsistent results and
13
considerable confusion and uncertainty in the
administration of the Medicare DSH adjustment.
For example, in this case, the D.C. Circuit held
that HCAP patients were not “eligible” for “medical
assistance” “under” the approved Ohio State
Medicaid plan and that HCAP patient days,
therefore, were properly excluded from _ the
calculation oof Petitioners’ Medicare DSH
adjustments. Yet, if the case had been decided in the
Fourth, Sixth, Eighth, or Ninth Circuits, a very
different construction of the Medicaid Low Income
Proxy would have been employed following Jewish
Hospital, Deaconess Health Services, Legacy
Emanuel Hospital, and Cabell, and those circuit
courts would not have excluded HCAP patient days
from the calculation of Petitioners’ Medicare DSH
adjustments based on a lack of payment.
Likewise, the D.C. Circuit’s construction of the
Medicaid Low Income Proxy would have produced a
different result in Jewish Hospital, Deaconess Health
Services, Legacy Emanuel Hospital, and Cabell.
Under the D.C. Circuit’s construction of
§ 1395ww(d)(5)(vi)(II), those courts would have been
forced to conclude that “unpaid” days of service were
not attributable to patients who were “eligible” for
“medical assistance” “under a State plan” approved
under Title XIX of the Social Security Act because
the hospitals received no payment from the plan for
those patient days.
This Court’s guidance therefore is needed to
settle the law concerning the construction of the
Medicaid Low Income Proxy. Without that guidance,
Medicare DSH calculations cannot be made in a
consistent and predictable manner that comports
14
with the plain language of the Medicaid Low Income
Proxy and policy goals chosen by Congress. Instead,
the outcome will vary from circuit to circuit in a
manner that is unseemly, unfair to hospitals
attempting to comply with the mandates of state
plans, and inconsistent with Congress’s desire to
have a uniform statutory formula apply to Medicare
DSH adjustments.
The Decision Below Conflicts With
Decisions Of Other Circuits Construing
The Statutory Formula For Calculating
The Medicare DSH Adjustment.
A, Four Circuit Courts Have Held
That The Medicare DSH
Adjustment Must Include All Days
Attributable To Patients Who Are
“Eligible” To Receive Medical
Treatment “Under” An Approved
State Medicaid Plan, Whether Paid
Directly By Medicaid Or Not.
Congress chose its words carefully when it
amended the Medicare statute to include a provision
creating and defining the Medicare DSH adjustment.
In relevant part, Congress directed the Secretary to
count patient days that a hospital spends serving
patients who are “eligible for medical assistance
under a State plan approved under [Title XIX of the
Social Security Act, establishing the Medicaid
program], but who were not entitled to benefits
under part A of [the Medicare Statute]. 42 U.S.C.
§ 13895ww(d)(5)(F)(wi) (ID.
15
The plain language of § 1395ww(d)(5)(F)(wi) (I D—
requiring the inclusion of days spent serving
patients who are “eligible for medical assistance
under a State plan approved under [Title XIX of the
Social Security Act] but not entitled to benefits
under part A of [the Medicare statute]—reflects
Congress’s judgment that the Secretary should be
required to calculate Medicare DSH adjustments
using a proxy that measures the “entire low-income
population actually served by the hospitals” and
provide an adjustment to Medicare PPS payments
that reflects the disproportionately large share of
hospital resources consumed by low income patients.
Portland Adventists Medical Center v. Thompson,
399 F.3d 1091, 1099 (9th Cir. 2005) (citing the
legislative history of 42 U.S.C. § 1395ww(d)(5)(F)
(vi)(IT)).
The plain language of the Medicaid Low Income
Proxy and Congress’s purpose in enacting the
statute have led the Fourth, Sixth, Eighth, and
Ninth Circuits to conclude that the Secretary must
count all patient days attributable to patients who
are “eligible” to receive benefits “under” an approved
State Medicaid plan, regardless of whether the
Medicaid program actually pays the hospital for the
costs of providing those days of service. See Jewish
Hospital, Inc., 19 F.3d at 273-76; Deaconess Health
Services Corp. v. Shalala, 83 F.3d 1041 (8th Cir.
1996); Legacy Emanuel Hospital, 97 F.3d at 1265-66;
Cabell, 101 F.3d at 986-93.
The Sixth Circuit. In Jewish Hospital, an
approved State Medicaid plan required participating
hospitals to provide patients with medical treatment
but the plan placed limits on the payments that a
hospital could receive in reimbursement for its costs.
16
See Jewish Hospital, 19 F.3d at 273. As a result,
under the State plan, hospitals routinely provided
treatment to patients without necessarily receiving
payment from the Medicaid program for certain days
of patient care. Id.
When calculating the hospitals’ Medicare DSH
adjustments, the Secretary construed the Medicaid
Low Income Proxy narrowly and concluded that the
hospitals’ Medicare DSH adjustments should be
determined based only on the hospitals’ “paid”
days—i.e., those patient days for which a hospital
actually received payment from the Medicaid
program. Jd. The Secretary excluded from the
hospitals’ Medicare DSH calculations patient days
not actually paid by the Medicaid program,
reasoning that those “unpaid” days were not days
attributable to patients who were “eligible for
medical assistance under a State plan approved
under [Title XIX of the Social Security Act governing
Medicaid)}.” Jd.
The hospitals challenged the Secrcetary’s
interpretation, and the Sixth Circuit agreed that the
Medicaid Low Income Proxy unambiguously
required the Secretary to count all days spent
providing medical treatment to patients who
received that treatment under the terms of an
approved State Medicaid plan, regardless of whether
the Medicaid program actually paid the hospital for
the costs of providing those days of service. Jewish
Hospital, 19 F.3d at 273.
“Looking at the plain language” of the Medicaid
Low Income Proxy, the court reasoned that the
statute is satisfied when a patient is “capable” of
receiving benefits under the terms of an approved
17
State Medicaid plan, period. Jewish Hospital, 19
F.3d at 273-76. “The notion of ‘eligibility’ refers to
the ‘qualification’ for benefits or the capability of
receiving those benefits” under an approved State
Medicaid plan. Jd. (emphasis added). “Congress
explicitly refers to a period of eligibility equal to the
time for which medical assistance was available.
Congress, however, did not refer to the time period
for which a given state actually renders Medicaid
payment.” Id. (emphasis added).
“Furthermore,” when drafting the statutory
formula for calculating Medicare DSH adjustments,
“Congress spoke of ‘eligibility’ in the Medicaid proxy
and ‘entitlement’ in the Medicare proxy.” Id.
(comparing the Medicaid Low Income Proxy, 42
U.S.C. § 1395ww(d)(5)(F)(vi) (ID, with the Medicare
Low Income Proxy, 42 U.S.C. § 1395ww(d)(5)(F)
(vi)(I)). “Adjacent provisions utilizing different terms
. must connote different meanings.” Jd. Whereas
the Medicare proxy uses the term “entitled” to “fix[]”
the calculation upon the “absolute right to receive an
independent and readily defined payment,” “the
Medicaid proxy speaks solely of eligibility” for
medical assistance under an approved State
Medicaid plan. Jd. “Congress could not have
intended to fix the [Medicaid proxy] calculation on
the actual payment of benefits in the state
administered program.” Jd. “Had Congress intended
that result it would have defined the Medicaid proxy
in terms of entitlement to state Medicaid payments.”
Id.
Finally, the court recognized that’ the
“overarching intent” of Congress in enacting a
statutory formula for calculating Medicare DSH
adjustments weighed heavily on the _ natural
18
construction of the Medicaid Low Income Proxy.
Congress’s “overarching intent” was to “supplement”
the resources available to PPS hospitals serving low
income persons. Jewish Hospital, 19 F.3d at 270.
Given Congress’s judgment about the higher costs
associated with serving low-income patients and its
unequivocal intent to provide an increase in
Medicare PPS payments to supplement the
resources of hospitals serving low-income patients,
the court had no difficulty reading the Medicaid Low
Income Proxy as establishing a method of accounting
for all the days of service actually provided by a
hospital to low-income patients under the terms of
an approved State Medicaid plan, whether or not
those days were actually paid for by Medicaid.
The Sixth Circuit’s reading of the Medicaid Low
Income Proxy led it to reject the Secretary’s attempt
to limit the Medicaid proxy used in the Medicare
DSH calculation to those patient days for which a
hospital receives payment from the Medicaid
program. As the Sixth Circuit put it, the Medicaid
Low Income Proxy “was intended to supplement and
subsidize a PPS hospital’s care for low income
individuals, and the Secretary’s [construction of the
statute] runs counter to this clear intent by
unnecessarily restricting the available subsidy,
without foundation in the statute.” Jewish Hospital,
19 F.3d at 275.
The Eighth Circuit. In Deaconess Health Services,
912 F. Supp. at 444-48, affd, 83 F.3d at 1041, the
issue and result were the same. The Secretary,
through his fiscal intermediaries, calculated
hospitals’ Medicaid Low Income Proxy and Medicare
DSH adjustments based only on days of inpatient
service for which a hospital received direct payment
19
from Medicaid and excluded days of service for
which Medicaid provided no payment. 912 F. Supp.
at 444-48. As in Jewish Hospital, the Secretary
argued that all “unpaid” days should be excluded
because “unpaid” days were not days attributable to
patients who were “eligible for medical assistance
under a State plan approved under [Title XIX of the
Social Security Act governing Medicaid].” Id. And in
a decision that carefully analyzed the statutory
language, the arguments of the parties, and the
Sixth Circuit’s decision in Jewish Hospital, the
district court agreed with the hospitals that the
Medicaid Low Income Proxy unambiguously
required the inclusion of all days attributable to
patients who were “eligible for medical assistance
under a State plan approved under [Title XIX of the
Social Security Act governing Medicaid], regardless
of whether paid by Medicaid or not.
“The plain words of the statute indicate that the
numerator is to consist of the patient days (without
the limitation imported by the [Secretary]) which are
attributable to patients ‘eligible’ for medical
assistance under a state Medicaid plan.” Id. at 447.
“The Secretary’s construction conflicts with the
statute’s focus on a patient’s eligibility, by focusing
on the state’s actual payment to the hospital. The
statute does not refer to patient days actually paid or
actually reimbursed under Medicaid. The
undersigned agrees with the reasoning of the Jewish
Hospital majority.” Id. The Eighth Circuit, in turn,
affirmed the district court’s judgment based on
Jewish Hospital and the district court’s thorough,
well-reasoned opinion. 83 F.3d at 1041.
The Ninth Circuit. The same issue concerning the
construction of the Medicaid Low Income Proxy
20
arose In Legacy Emanuel Hospital. 97 F.3d at 1265-
66. And faced with the same arguments by the
hospital plaintiffs and the Secretary, the Ninth
Circuit reached the same conclusion as the Sixth and
Eighth Circuits: “We believe the language of the
Medicare reimbursement provision is clear: the
Medicaid proxy includes all patient days for which a
person was eligible for Medicaid benefits, whether or
not Medicaid actually paid for those days of service.
We base our conclusion on Congress's use of the
word “eligible” rather than “entitled,” as well as
Congress's use of the Medicaid proxy to define non-
Medicare low-income patients for purposes of
determining a hospital's share of low-income
patients.” Jd. (noting Congress’s intent to mandate a
proxy that accounted for all non-Medicare low-
income patients served by hospitals participating in
Medicare).2
The Fourth Circuit. In Cabell, 101 F.3d at 986-93,
the Fourth Circuit weighed in and the court’s
2 In the courts below, the Secretary noted that, in cases like
Legacy Emanuel Hospital, the courts often substituted phrases
like “Medicaid benefits” for the statutory term “medical
assistance” when paraphrasing the Medicaid Low Income
Proxy. The Secretary argued that such phrasing demonstrated
that the statute did not apply to HCAP patients. However,
that argument was squarely rejected in the district court,
which described such references as “slips of language” that “are
not even dicta” and which adopted a plain language
construction of the statute that closely tracked the construction
adopted in Jewish Hospital and the subsequent cases.
Significantly, the D.C. Circuit panel opinion likewise did not
rely on the language invoked by the Secretary from Jewish
Hospital and the subsequent cases when it construed the
Medicaid Low Income Proxy.
21
analysis closely tracked Jewish Hospital, Deaconess
Health Services, and Legacy Emanuel Hospital. “It is
apparent that ‘eligible for medical assistance under a
State plan’ refers to patients who meet the income,
resources, and status qualifications specified by a
particular state’s Medicaid plan, whether or not they
are actually receiving payment for a particular type
of service or a particular duration of coverage.”
Cabell, 101 F.3d at 989. Cabell also considered and
rejected a construction of the statutory term
“medical assistance” comparable to one adopted by
the D.C. Circuit here. Jd. “The Secretary argues
that ‘eligible for medical assistance’ cannot include
hospital days which are unpaid by the state
Medicaid plan because the Medicaid statute defines
‘medical assistance’ as ‘payment.” Jd. The court
noted, however, that the Secretary’s argument failed
to account for all the medica! services included under
Medicaid as well as the other terms and benefits
that could be included in a State Medicaid plan. Id.
“Hospital days need not be paid by a particular state
Medicaid plan to be counted in the Medicaid proxy
for the DSH calculation.” Zd.
B. The D.C. Circuit Has Adopted A
More Restrictive Reading Of The
Statute That Makes “Payment”
Under Medicaid A Prerequisite For
Inclusion In The Calculation Of
The Medicare DSH Adjustment.
In this case, the D.C. Circuit adopted a
fundamentally different reading of the Medicaid Low
Income Proxy—a more restrictive reading of the
statute that aliows for the inclusion of only those
22
patient days for which a hospital actually receives
payment from a State Medicaid program.
Although nothing in the text of the Medicaid Low
Income Proxy makes “payment” for medical
treatment a necessary (or relevant) criterion for
determining whether a patient is “eligible” for
medical assistance “under” an approved State
Medicaid plan, the panel construed the statutory
phrase “eligible ... under a State plan” restrictively
to turn on “payment” from Medicaid for patient days.
App. 3a-6a. This court held that the provisions
included in the approved Ohio State Medicaid plan
mandating the medical treatment of HCAP patients
were not “part” of the State Medicaid plan within the
meaning of the Medicaid Low Income Proxy because
the provisions did not require payments to be made
to hospitals from the Ohio State Medicaid program.
App. 3a-6a (regulations requiring “mandatory
charity care” could not be “part” of a State Plan, even
when included in the text of the State Plan and
submitted to and approved by the Secretary, because
“an approved state Medicaid plan ... must pay
providers for the care of eligible patients.”). And
based on this restrictive reading, the court also held
that a patient is “eligible” for medical assistance
“under” an approved State Medicaid plan only
insofar as the approved State Medicaid plan provides
for the payment of that particular patient’s medical
care. App. 3a-6a.
As part of its analysis, the court construed the
statutory term “medical assistance” narrowly to
cover only “payments” made directly to hospitals
under Medicaid to reimburse them for the cost of
providing medical treatment to patients and not
“charity care” mandated by regulations included in a
23
State Medicaid plan. App. 7a-9a. Once again,
however, nothing in the text of the Medicaid Low
Income Proxy or any other part of the Medicare
statute dictated that “medical assistance” be defined
strictly in terms of a direct “payment” made to a
hospital by a State Medicaid program. Jd. The court
took a different view, believing that the term should
have the same meaning in this context as in the
federal Medicaid statute. App. 7a-9a. There are a
number of problems with the panel’s reasoning.
To begin with, the court’s analysis erroneously
assumes that Medicare and Medicaid “operate
together,” as part of a single statutory scheme, using
terms that are intended by Congress to have the
same meaning. /d. (citing Atl. Cleaners & Dyers, Inc.
v. United States, 286 U.S. 427, 433 (1932); Sullivan
v. Stroop, 496 U.S. 478, 484 (1990)). This assumption
reflects a misunderstanding of Medicare and
Medicaid. As noted above, Medicare and Medicaid
are separate programs with different goals and
standards established by different federal statutes.
Medicare is a federally administered public health
insurance fund for the aged and disabled set forth in
Title XVII of the Social Security Act. Medicaid, on
the other hand, is a _ state-administered, public
health insurance fund for the indigent, enacted
separately from Medicare and codified in Title XIX of
the Social Security Act.3 Given these differences,
3 The distinction between the two statutes and programs is
reflected in the case law. Evanston Hospital v. Hauck, No. 92 C
732, 1992 WL 205900, at*2 (N.D. Ill. Aug. 19, 1992) (“Medicare
and Medicaid are entirely separate programs with different
purposes and standards”), affd, 1 F.3d 540 (7th Cir. 1993);
Rastetter v. Weinberger, 379 F. Supp. 170, 172 (D. Ariz. 1974)
Continued on following page
24
there is no basis for the panel’s decision to borrow
the statutory definition of “medical assistance” set
forth in Medicaid and impose that definition on the
text of the Medicaid Low Income Proxy. Indeed,
Congress’s decision to enact the Medicaid Low
Income Proxy without defining “medical assistance”
or cross-referencing the definition provided in
Medicaid suggests that Congress did not intend for
the term to be construed in a narrow or technical
fashion using a definition borrowed from another
statute.
There is nothing that suggests the term should be
construed narrowly so as to cover only those patient
days when payments are made directly to hospitals
under Medicaid to reimburse them for the cost of
providing medical treatment to patients. For
example, in Jewish Hospital, the court had no
difficulty in ruling that a patient could be eligible for
“medical assistance” under an approved State
Medicaid plan if the patient was capable of receiving
a “benefit” under the terms of an approved State
Medicaid plan, regardless of whether the hospital
received a “payment” from Medicaid for that service.
Jewish Hospital, 19 F.3d at 273-76. Indeed, the
Sixth Circuit found it significant that Congress used
the broad term “medical assistance” not “payment”
in the text of the Medicaid Low Income Proxy.
“Congress explicitly refer{ed] to a period of eligibility
equal to the time for which medical assistance was
available ... not ... the time period for which a given
Continued from previous page
(Medicaid is a different law designed by Congress for a
different purpose than Medicare), aff'd, 419 US. 1098 (1975).
25
state actually renders Medicaid payment’ Id.
(emphasis added). See also Deaconess Health
Services, 912 F. Supp. 2d at 444-48 (same), affd, 83
F.3d at 1041; Legacy Emanuel Hospital, 97 F.3d at
1265-66 (same); and Cabell, 101 F.3d at 986-93.
Medicare regulations promulgated by HHS in
response to Jewish Hospital and the other cases
described above likewise belie the D.C. Circuit’s
narrow construction of “medical assistance” as
covering only those patient days when direct
payments are mace by Medicaid to hospitals. See 42
C.F.R. § 412.106(b)(4)G). In 1997, in response to
Jewish Hospital and the other cases described above,
HHS revised its interpretation of the Medicaid Low
Income Proxy to state that “a patient is deemed
eligible for Medicaid on a given day if the patient is
eligible for inpatient hospital services under an
approved State Medicaid plan or under a waiver
authorized under section 1115(a)(2) of the Act on
that day, regardless of whether particular items or
services were covered or paid under the State plan or
the authorized waiver.” Id. (emphasis added).4
4 In Ruling 97-2, the Health Care Financing Administration
(the agency within HHS responsible at the time for
administering Medicare and Medicaid) responded to Jewish
Hospital, Deaconess Health Services, Legacy Emanuel Hospital,
and Cabell, and announced that it had “chang[ed] its
interpretation of [§ 1395ww(d)(5)(vi)(ID] to follow the holdings
of the United States Courts of Appeals for the Fourth, Sixth,
Eighth, and Ninth Circuits.” Jn re Medicare Reimbursement
Litigation, 414 F.3d 7, 9 (D.C. Cir. 2005) (quoting Health Care
Financing Administration Ruling 97-2, at 1 (Feb. 27, 1997))
Significantly, however, the Secretary has refused to apply this
new interpretation of § 1395ww/(d)(5)(vi)(ID to cases like this
one. As the district court noted in its summary judgment order,
Continued on following page
26
Indeed, in the wake of Jewish Hospital, the cases
discussed above, and 42 C.F.R. § 412.106(b)(4)(i),
certain “unpaid” days of care are now routinely
included in the calculation of both Medicare DSH
adjustments and Medicaid DSH adjustments.
None of these judicial rulings or agency
pronouncements is consistent with the D.C. Circuit's
narrow construction of “medical assistance” as
covering only direct payments made to a hospital by
an approved State Medicaid plan and not charity
care or other unpaid benefits provided under the
terms of an approved State Medicaid plan.
II. The Resolution Of The Conflict
Presented Is Critically Important To The
Uniform Administration Of The Medicare
System And The Provision Of Medical
Services To Low-Income Patients.
The conflict among the Courts of Appeals
concerning the proper construction of the Medicaid
Low Income Proxy is real, unavoidable, and of
considerable practical importance. As_ described
above, the conflict is producing inconsistent results
in similar cases and engendering considerable
confusion and uncertainty in the administration of
the Medicare DSH ~ adjustment. Hospitals
participating in Medicare should not be subject to
Continued from previous page
the Secretary’s actions in this case are contrary to the plain
language of both the Medicaid Low Income Proxy and this
regulation. App. 19a.
27
differing constructions of the Medicaid Low Income
Proxy and differing methods of calculating the
Medicare DSH adjustments based on the circuit in
which the hospital’s claims are adjudicated.
This case provides the Court with an opportunity
to resolve the conflict among the circuit courts,
ensure that the Medicaid Low Income Proxy is
administered in a uniform manner consistent with
the plain language of the statute and the policy goals
chosen by Congress, and hold that the statute
requires the inclusion of all patient days attributable
to patients who are “eligible” to receive benefits
“under” an approved State Medicaid plan, regardless
of whether the Medicaid program actually pays the
hospital for the costs of providing those days of
service.
28
CONCLUSION
Because the Circuits have adopted fundamentally
different constructions of the Medicaid Low Income
Proxy, producing’ different outcomes and
engendering confusion and uncertainty, Petitioners
urge that this Court’s grant this petition.
Respectfully submitted,
MURRAY J. KLEIN
Counsel of Record
JAMES C. MARTIN
KIM M. WATTERSON
DAVID J. BIRD
REED SMITH LLP
Princeton Forrestal
Village
136 Main St., Suite 250
Princeton, NJ 08540
(609) 520-6022
DECEMBER 24, 2008 Counsel for Petitioners
la
United States Court of Appeals,
District of Columbia Circuit.
No. 07-5273
ADENA REGIONAL MEDICAL CENTER, et al.,
Appellees,
Vv.
Michael O. LEAVITT, Secretary of the United States
Department of Health and Human Services,
Appellee.
Argued March 18, 2008.
Decided May 30, 2008.
Appeal from the United States District Court for the
District of Columbia (No. 05cv02422).
August E. Flentje, Attorney, U.S. Department of
Justice, argued the cause for appellant. With him on
the briefs were Jeffrey S. Bucholtz, Acting Assistant
Attorney General, Jeffrey A. Taylor, U.S. Attorney,
and Anthony J. Steinmeyer, Attorney, U.S.
Department of Justice. R. Craig Lawrence, Assistant
U.S. Attorney, and Megan L. Rose, Attorney, U.S.
Attorney’s Office, entered appearances.
Murray J. Klein argued the cause and filed the briefs
for appellees.
Before: SENTELLE, Chief Judge, and GINSBURG
and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge
GINSBURG.”
* Circuit Judge BROWN concurs in the opinion of the
Court except as to Part II.A.
2a
GINSBURG, Circuit Judge: The Ohio Hospital
Care Assurance Program (HCAP) ensures that
indigent Ohioans who “are not recipients of the
medical assistance program,” i.e., the Ohio Medicaid
plan, nonetheless receive “basic, medically necessary
hospital-level services” at no charge. OHIO REV.
CODE § 5112.17(B); see Title XIX [Medicaid] of the
Social Security Act, 42 U.S.C. § 1396 et seq. The
state of Ohio does not reimburse hospitals for the
cost of providing such mandatory charity care.
Seeking indirectly to cover some of their HCAP
expenses, the 25 plaintiff-appellee hospitals took the
position that the Secretary of Health and Human
Services should include beneficiaries of the HCAP in
calculating the monies the Hospitals are due under
the Medicare program for the elderly and the
disabled. See Title XVIII [Medicare] of the Act, 42
U.S.C. § 1395 et seq. The Secretary disagreed but the
Hospitals successfully challenged his decision in the
district court. 524 F. Supp. 2d 1 (2007). We now
reverse that judgment.
I. Background
Under the Medicare statute, the Secretary
generally pays hospitals a sum for each covered
inpatient service without regard to the hospital’s
actual cost. See 42 U.S.C. § 1395ww/(d). In 1988,
however, the Congress determined any hospital that
serves a disproportionately large percentage of low-
income patients-known as a disproportionate share
hospital (DSH)-should be reimbursed at a higher
rate, apparently because the more low-income
patients a hospital treats, the more it costs on
average to care for Medicare patients. See Cabell
3a
Huntington Hosp., Inc. v. Shalala, 101 F.3d 984, 985
(4th Cir. 1996) (“low-income Medicare patients have
generally poorer health and are costlier to treat than
high-income Medicare patients’). The Congress
further determined the number of low-income
patients each hospital treats should be measured
indirectly by reference to the number of its patients
“eligible for medical assistance under a State plan
approved under [Title] XIX” of the Act, i.e., Medicaid,
“but ... not entitled to benefits under [Medicare],” 42
U.S.C. § 1395ww(d)(5)(F)(vi) TD. Put simply, the
more a hospital treats patients who are “eligible for
medical assistance under a State plan approved
under |Medicaid],” the more money it receives for
each patient covered by Medicare.
II. Analysis
The question before us is whether HCAP
patients are “eligible for medical assistance under a
State plan approved under [Medicaid].” If so, then
the Secretary miscalculated the DSH adjustments
the Hospitals should have received under Medicare.
We conclude for two reasons that the Secretary was
correct, and accordingly was entitled to summary
judgment: First, the HCAP provision that requires
hospitals to care for indigent patients, § 5112.17(B),
is not part of the Ohio “State plan approved under
{[Medicaid]” and, second, HCAP patients are not
“eligible for medical assistance” within the meaning
of that term in the Medicare DSH provision. We
reach these conclusions based not upon any
deference to the Secretary’s interpretation but upon
our own reading of the Social Security Act. See
Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81
4a
L.Ed.2d 694 (1984) (Gif the “Congress has directly
spoken to the precise question at issue,” then “that is
the end of the matter”).
A. HCAP Provision Is Not Part of Medicaid
Approved Plan
Contrary to the Hospitals’ argument,
§ 5112.17(B) is clearly not part of a “State plan
approved under [Medicaid]” because an approved
state Medicaid plan-as the Hospitals acknowledge in
their brief-must pay providers for the care of eligible
patients. See 42 U.S.C. §§ 1396a-1396b; see also §
1396d(a), (b). Section 5112.17(B) of the HCAP,
however, requires the Hospitals to care for indigent
patients without payment. See also OHIO ADMIN.
CODE 5101:3-2-07.17. By its terms, moreover, §
5112.17(B) requires hospitals to care for patients
only if they “are not recipients of the medical
assistance program,” that is, Medicaid. See OHIO
REV. CODE § 5112.01 (defining “medical assistance
program” as “the program of medical assistance
established under section 5111.01 of the Revised
Code and Title XIX [Medicaid] of the ‘Social Security
Act”); see also § 5112.17(C) (hospital may “requir[e]
an individual to apply for eligibility under the
medical assistance program [Medicaid] before ...
process[ing] an application under” § 5112.17). It is
clear, therefore, that under Ohio law HCAP patients
do not receive care pursuant to the Medicaid plan
and, consequently, that HCAP patients are not
eligible for care “under a State plan approved under
subchapter XIX [Medicaid]” within the meaning of
the Medicare statute, 42 U.3.0.
§ 1395ww/(d)(5)(F)(vi(ID).
5a
The Hospitals point out that the Secretary
approved certain modifications to the Ohio
regulation implementing § 5112.17(B) as an
amendment to Ohio’s Medicaid plan. True enough;
see OHIO ADMIN. CODE 5101:3-2-07.17, approved
by the Secretary April 6, 2001. Accordingly, the
Hospitals maintain, the regulation must be part of
the Ohio Medicaid plan: Why else would the
Secretary have approved the regulation as an
amendment to that plan?
The answer is not far to seek. The federal
Medicaid statute contains its own DSH provision,
which requires each state “specifically [to] define [ ]”
eligibility for DSH adjustments in the state Medicaid
plan and to “provide [{ } ... for an appropriate increase
in the rate or amount of payment” eligible hospitals
receive. See 42 U.S.C. § 1396r-4(a)(1).” Ohio acted
pursuant to that provision to determine DSH
adjustments in its Medicaid program by reference to
a hospital’s compliance with the requirement, set out
in Rule 5101:3-2-07.17, that a hospital provide
charity care under the HCAP. See, e.g., OHIO
ADMIN. CODE 5101:3-2-09(K)(5)(c) (hospitals are
not eligible for Medicaid DSH adjustments if they do
not provide charity care under the HCAP). Thus the
regulation, which determines the eligibility of
patients for such charity care, indirectly also
determines the Hospitals’ eligibility for and amount
of DSH adjustments under the Ohio Medicaid plan.
Federal law obliged Ohic to submit the regulation to
the Secretary for approval because the mechanism
“The Medicare DSH provision, in contrast, does not defer
to the states on those questions. See § 13895ww(d)(5)(F).
6a
for providing a DSH adjustment under Medicaid is
part of Ohio’s Medicaid plan, and the Secretary must
approve that plan, see 42 U.S.C. § 1396r-4(a) (state
plan does not satisfy requirement’ _ of
§ 1896a(a)(13)(A) unless state has submitted to
Secretary methodology for making DSH
adjustments); § 1396a(b) (“The Secretary shall
approve any plan which fulfills the conditions
specified in § 1396a(a)”); see also § 1396r-4(a)(3)
(governing approval by Secretary of amendments
made under § 1396r-4). The Secretary’s approval of
Rule 5101:3-2-07.17 does not suggest in any way
that HCAP patients receive care pursuant to the
Ohio Medicaid plan.™
™ At oral argument the hospitals suggested § 5112.17(B)
of the Ohio Code is part of the Medicaid plan because
“their [Medicaid DSH] payments will increase if they’re
treating more HCAP patients and ... will decrease if
they're treating less [sic] HCAP patients.” The suggestion
reflects a misunderstanding of the rationale for DSH
adjustments. Hospitals in Ohio receive more DSH funds
under the Medicaid plan the more HCAP patients they
treat not because those patients receive care under the
Medicaid plan, but because Ohio law treats such patients
as a proxy for low-income patients, just as the Medicare
provision treats Medicaid patients as a proxy for low-
income patients. Thus, the Ohio Medicaid plan provides a
hospital more money for Medicaid patients the more
HCAP patients it treats, just as the federal Medicare
statute provides a hospital more money for Medicare
patients the more Medicaid patients it treats, Cabell
Huntington Hosp., Inc., 101 F.3d at 985.
7a
B. HCAP Patients Are Not Eligible for “Medical
Assistance”
As we noted at the outset, in order to prevail the
Hospitals must demonstrate that patients who
obtain charity care under the HCAP are “eligible for
medical assistance under a State plan approved
under [Medicaid]” within the meaning of that phrase
in the Medicare statute, 42 U.S.C.
§ 1835ww(d)(5)(F)(vi)(I]). As explained below, we
conclude that the term “medical assistance,” which is
not defined in Title XVIII of the Act, has the same
meaning in the Medicare DSH provision of Title
XVIII as it has in the federal Medicaid statute, Title
XIX of the Act; as a result, the Hospitals’ case would
fail even if HCAP patients did obtain care under the
Ohic Medicaid plan for, as the Government points
out, the federal Medicaid statute defines “medical
assistance” as “payment of part or all of the cost” of
medical “care and services” for a defined set of
individuels, § 1396ea), whereas the HCAP does not
entail any payment.
First, we note the Medicare DSH provision in
Title XVIII of the Act expressly refers to the
Medicaid statute (as Title XIX of the Act),
§ 1395ww(d)(5)(P)(viUD, and the same phrase—
"medical assistance under a State plan approved
under [Medicaid]”—appears throughout the Act.” As
the Supreme Court has instructed on countless
occasions, we are to presume “identical words used
in different parts of the same act are intended to
" See, eg., 42 U.S.C. §§ 1320a-7b(a)(6), 1382h(b)(3),
1396a(a)(10)(E), 1396n(i)(1).
84
have the same meaning.” Atl. Cleaners & Dyers, Inc.
v. United States, 286 U.S. 427, 483, 52 S.Ct. 607, 76
L.Ed. 1204 (1932); see also Sullivan v. Stroop, 496
U.S. 478, 484, 110 S.Ct. 2499, 110 L.Ed.2d 438
(1990) (applying canon where “cross-references”
indicate two administrative programs within Social
Security Act “operate together”).
Second, and perhaps more probative, the
Medicaid DSH provision permits the states to adjust
DSH payments “under a _ methodology that”
considers either “patients eligible for medical
assistance under a State plan approved under
[Medicaid] or ... low-income patients,” 42 U.S.C. §
1396r-4(c)(3)(B), such as those served under the
HCAP. The Medicaid and Medicare DSH provisions
serve the same purpose-to adjust payments to
hospitals that serve a disproportionate share of poor
patients-and in doing so each refers to patients
“eligible for medical assistance under a State plan
approved under” the Medicaid title of the Act. Id.;
§ 1895ww(d)(5)(F)(vi)(ID. It stands to reason the
Congress intended the quoted phrase to have the
same meaning in the two provisions.
We thus conclude HCAP patients do not obtain,
and are not eligible for, “medical assistance” within
the meaning of the Medicare DSH _ provision,
wherefore the Hospitals’ case must fail. As the
Fourth Circuit has noted, “[i]f Congress had wanted
‘medical assistance’ to take or. a completely different
meaning” in the Medicare I.SH provision in Title
XVIII than it has in the Mediczid statute, Title XIX,
then the “Congress could easily have so indicated.”
Cabell Huntington Hosp., Inc., 101 F.3d at 990.
9a
III. Conclusion
In sum, we conclude the HCAP provision
requiring the Hospitals to care for indigent patients
is not part of the Ohio “State plan approved under
[Medicaid]” and the indigent patients covered by the
HCAP provision are not “eligible for medical
assistance” within the meaning of the Medicare
statute, 42 U.S.C. § 18395ww(d)(5)(F)(vi)dD.”
Therefore, the judgment of the district court is
Reversed.
: The Hospitals’ other arguments are sufficiently lacking
in merit as not to warrant consideration in a published
opinion.
10a
United States District Court,
District of Columbia.
ADENA REGIONAL MEDICAL CENTER, et al.,
Plaintiffs,
A
Michael A. LEAVITT, Secretary, United States
Department of Health and Human Services,
Defendant.
Civil Action No. 05-2422 (LFO).
June 11, 2007.
MEMORANDUM
LOUIS F. OBERDORFER, District Judge.
This case involves a challenge to the Secretary of
Health and Human Services’ interpretation of the
statutory formula for providing reimbursements
under Medicare to hospitals that serve a
disproportionately high share of low-income
patients. For reasons explained below, the Plaintiffs’
Motion for Summary Judgment is granted, and the
Defendant’s Cross-Motion for Summary Judgment is
denied.
I. Background and Procedural History
A. The Statutory Framework
i. The Medicare Scheme and_ the
“Disproportionate Share Adjustment”
The Medicare program provides health insurance
to elderly and disabled persons. See 42 U.S.C. § 1395
et seq. The Secretary is authorized to promulgate
regulations prescribing the health care services
lla
covered by the program and the methods of
determining payments for those services. The
operating costs of inpatient hospital services are
reimbursed by Medicare primarily through a
prospective payment system. See 42 U.S.C.
§ 1395ww/(d). This system contains a number of
statutory provisions that adjust reimbursement
based on hospital-specific factors. Id.
In 1985, Congress enacted legislation directing
the Secretary to include an adjustment to provide
additional Medicare payments to hospitals that
serve a “significantly disproportionate number of
low-income _ patients.” It was’ called’ the
“disproportionate share hospital (DSH’) adjustment”
(the “Adjustment”’). Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), Pub. L. No. 99-
272, § 9105 (1986); 42 U.S.C. § 1395ww(d)(5)(F)(@) (1).
Congress also established a specific formula for
calculating the Adjustment; whether a_ hospital
qualifies for the Adjustment, and how large an
adjustment it receives, depends on the hospital’s
“disproportionate patient percentage.” 42 U.S.C. §
1395ww(d)(5)(F)(v). The “disproportionate patient
percentage” is the sum of two fractions, the Medicare
fraction and Medicaid fraction for a hospital’s cost
reporting period. 42 U.S.C. § 1395ww(d)(5)(F)(vi).
The first fraction, the Medicare fraction, is based on
the number of Medicare patients who qualify for
Supplemental Security Income. 42 #£4U.S.C.
§ 1395ww(d)(5)(F)(vi)(D. The second fraction, the
Medicaid fraction, is based on the number of non-
Medicare low-income patients served by the hospital.
The proper calculation of the numerator in the
Medicaid fraction (the “Numerator’”) is the dispute in
12a
this case. The text of the statute, as amended in
2005, is as follows:
(II) the fraction (expressed as a percentage),
the numerator of which is the number of the
hospital’s patient days for such period which
consist of patients who (for such days) were
eligible for medical assistance under a State
plan approved under subchapter XIX of this
chapter [Medicaid], but who were not
entitled to benefits under part A of this
subchapter [Medicare-Part A], and _ the
denominator of which is the total number of
the hospital’s patient days for such period.
In determining... the number of the
hospital’s patient days for such period which
consist of patients who (for such days) were
eligible for medical assistance under a State
plan approved under subchapter XIX of this
chapter, the Secretary may, to the extent
and for the period the Secretary determines
appropriate, include patient days of patients
not so eligible but who are regarded as such
because they receive benefits under a
demonstration project approved under
subchapter XI of this chapter.
42 U.S.C. § 1395ww(d)(5)(F)(vi) ID.
i. The Medicaid Scheme (Title XIX)
Title XIX of the Social Security Act (Medicaid)
authorizes the use of federal funds to help states
offset the cost of providing medical assistance to
eligible low-income individuals. See 42 U.S.C. § 13896
13a
et seq. To receive these funds, a state must submit a
“state plan” for approval by the Secretary, and it
must administer the plan according to Medicaid
requirements. 42 U.S.C. §1396d(a). Only
expenditures made under an approved Medicaid
state plan become eligible for matching federal
payments. 42 U.S.C. § 1396d(a)-(b).
B. The Undisputed Facts
Plaintiffs are 25 hospitals that participate in
Ohio’s Hospital Care Assurance Program (“HCAP”),
a part of Ohio’s state health plan (“State Plan”).
Ohio’s State Plan has been approved by the
Secretary under Title XIX. Pls. Statement of
Material Facts 4 1; Def.’s Statement of Material
Facts § 3. HCAP provides coverage for medical
assistance provided to low-income Ohio residents
otherwise ineligible for traditional Medicaid. Def.’s
Statement of Material Facts § 6(a); Pls.’ Response 44
2, 6. The state of Ohio receives some federal
matching funds for HCAP days under the Medicaid
statute. Pls.’ Response §/{ 3. Medicare funds are
administered and paid to providers through fiscal
intermediaries. The fiscal intermediary for the
Plaintiff Hospitals has not allowed the Hospitals to
include HCAP days in calculating their Medicare
DSH adjustment. Pls. Statement of Material Facts 4
1. The Ohio plan at issue in this case is a traditional
state plan that includes provisions for reimbursing
hospitals for certain services provided to low-income
patients not eligible for traditional Medicaid.
C. Procedural History
The Hospitals timely filed appeals of the fiscal
l4a
intermediary’s determination to the Provider
Reimbursement Review Board (the “Board”). See 42
U.S.C. § 139500(a). On December 7, 2005, the Board
determined that it lacked authority to decide the
appeal because it involved “a question of law” and
granted Expedited Judicial Review. See 42 U.S.C.
§ 139500(f)(1).
The Hospitals subsequently brought this action
in federal court. On February 1, 2006, they moved
for summary judgment [dkt. 7-1]. On March 29,
2006, the Secretary filed a cross-motion for summary
judgment [dkt. 16]. On December 22, 2006, the
Court’s Calendar Committee transferred to me the
cross-motions for summary judgment for decision.
See Local Civil Rule 40.6(a).
The central issue is whether or not the
Secretary’s interpretation of the phrase “eligible for
medical assistance under a State plan approved
under subchapter XIX of this chapter [the Medicaid
statute]” is consistent with the plain language of the
statute.
II. Discussion
A. Standard of Review
Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party 1s entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
This case presents a pure question of law.
In reviewing the Secretary's interpretation, a
1$a
court looks to the statutory language and legislative
history to determine if Congress has directly spoken
to the precise question at issue. Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
When “the statutory scheme is coherent and
consistent” and “the language at issue has a plain
and unambiguous meaning with regard to the
particular dispute in the case,” no deference to the
agency is required. Barnhart v. Sigmon Coal Co.,
Inc., 534 U.S. 488, 450, 122 S.Ct. 941, 151 L.Ed.2d
908 (2002) (quoting Robinson v. Shell Oil Co., 519
U.S. 3387, 340, 117 S.Ct. 8438, 136 L.Ed.2d 808
(1997)). The court’s role is to ensure that
Congressional intent is given effect. If, however, the
statute is “silent or ambiguous with respect to the
specific issuc, the question for the court is whether
the agency’s answer is based on a _ permissible
construction of the statute.” Chevron, 467 U.S. at
843, 104 S.Ct. 2778. It is not sufficient for a plaintiff
to offer an alternative, equally permissible
construction. Id. at 843 n. 11, 104 S.Ct. 2778.
B. Analysis
Plaintiffs argue that the phrase “eligible for
medical assistance under a State plan approved
under subchapter XIX of this chapter” is
unambiguous. It is undisputed that HCAP is part of
Ohio’s State Plan and that the State Plan has been
approved by the Secretary under Title XIX. Thus,
Plaintiffs argue, by definition, the Numerator should
include HCAP patients.
The Secretary argues that he has reasonably
interpreted the same phrase to mean “eligible for
16a
Medicaid;” that the phrase in the statute is “long-
hand”; and that the terms are interchangeable. He
seems to assert that the statute is ambiguous, or at
least not “clearly unambiguous.” Thus, the Secretary
asserts that his reasonable interpretation is entitled
to deference; the statute does not require him to
include HCAP patients in the Numerator. He further
argues that exclusion of HCAP patient days is
proper because those individuals are clearly not
eligible for Medicaid.
The Secretary’s argument is unpersuasive. The
statutory formula unambiguously directs’ the
Secretary to include all “patients who ... were eligible
for medical assistance under a State plan approved
under [Title] XIX” in the Numerator. §
1395ww(d)(5)(F)(vij(1D. “(T]he statutory scheme is
coherent and consistent” and “the language at issue
has a plain and unambiguous meaning with regard
to the particular dispute in the case.” Barnhart, 534
U.S. at 450, 122 S.Ct. 941. Congress said what it
meant; if Congress had meant to restrict the
Numerator to Medicaid-eligible patients, it could
have explicitly done so. The phrase “eligible for
medical assistance under a state plan approved
under Title XIX “ is not “long-hand” for “eligible for
Medicaid.” It is undisputed that HCAP is a “state
plan approved under Title XIX.” Accordingly, the
Secretarys exclusion of HCAP patients is
inconsistent with the plain language of the statute
and cannot be upheld.
The application of the Numerator to patients
covered by plans like the one at issue in the present
case is an issue of first impression in federal courts.
However, it is not the first time that federal courts
17a
have addressed the Secretary’s interpretation of the
Numerator. From 1986 through 1997, the Secretary
construed the first portion of this Numerator to
include only those patients who were both eligible for
Medicaid payments under the relevant state
Medicaid plan and for whom the hospital actually
received such payments from the state. Providers
challenged this interpretation, arguing that the
statute unambiguously required the Secretary to
include all days for which a patient was eligible for
Medicaid, not just the days for which Medicaid was
paid. Every circuit court that subsequently
considered the Secretary’s interpretation uniformly
concluded that the word “eligible” should be given its
plain meaning; the Numerator unambiguously
includes all patient days for which a patient was
eligible for Medicaid regardless of whether a state
Medicaid program actually paid the hospital for
services provided to the patient. See Cabell
Huntington Hosp., Inc. v. Shalala, 101 F.3d 984, 988
(4th Cir. 1996); Legacy Emanuel Hosp. and Health
Ctr. v. Shalala, 97 F.3d 1261, 1266 (9th Cir. 1996);
Deaconess Health Servs. Corp. v. Shalala, 83 F.3d
1041, 1041 (8th Cir. 1996); Jewish Hosp., Inc. v.
Secretary of Health and Human Serus., 19 F.3d 270,
276 (6th Cir. 1994). Similarly, the statute should be
given its plain meaning here. The Secretary points
out that these courts often substituted “Medicaid” for
“medical assistance” in paraphrasing the statute. He
argues that this proves that the terms are
interchangeable, but those slips of language are not
even dicta. Nor do such statements suggest that the
statutory language is ambiguous; the part of the
phrase at issue here was not before those courts.
Finally, while the plain language of the statute
18a
speaks for itself, it is noteworthy that Congress’
purpose in enacting the Adjustment was based on its
determination that care for low-income patients
consumes a_ disproportionately large share of
hospitals’ resources, resulting in higher Medicare
costs. See H.R. Rep. No. 99-241, at 16 (1985),
reprinted in 1986 U.S.C.C.A.N. 579, 594. The
Adjustment was clearly intended to measure “the
entire low-income population actually served by the
hospitals.” Portland Adventist Med. Ctr. v.
Thompson, 399 F.3d 1091, 1099 (9th Cir. 2005).’
III. Conclusion
For the foregoing reasons, in an accompanying
order Plaintiffs’ motion for summary judgment is
granted, and Defendant’s cross-motion for summary
judgment is denied.
' This case addressed the Secretary's exclusion of patient
days covered by a state “demonstration project authorized
under title IX.” In 2005, Congress amended the statute to
give the Secretary discretion to include or exclude such
patients. See Deficit Reduction Omnibus Act of 2005, Pub.
L. No. 109-171, § 5002. Both Parties agree, and [|
conclude, that the 2005 amendment did not alter the
application of the statute to state plans approved under
Title XIX.
19a
United States District Court,
District of Columbia.
ADENA REGIONAL MEDICAL CENTER, ect al.,
Plaintiffs,
V.
Michael A. LEAVITT, Secretary, United States
Department of Health and Human Services,
Defendant.
Civil Action No. 05-2422 (LFO).
June 11, 2007.
ORDER
For the reasons explained in an accompanying
memorandum opinion, it is this 11th day of June,
2007 hereby
ORDERED: that Plaintiffs’ Motion For Summary
Judgment [dkt # 7] is GRANTED; and it is further
ORDERED: that Defendant’s Cross-Motion for
Summary Judgment [dkt # 16] is DENIED; and it is
further
ORDERED: that the Defendant’s interpretation of
the Medicare statute and 42 C.F.R. 412.106(b)(4) to
exclude Ohio's Health Care Assurance Plan
(““HCAP”) patients from the calculation of the
Disproportionate Hospital Share Adjustment is
REVERSED; and it is further
ORDERED: that the above-captioned matter is
remanded to the Secretary of the Department of
Health and Human Services. The Secretary shall
20a
instruct the Fiscal Intermediary in Ohio: (1) to
correct each of the Plaintiff Hospitals’ cost reports at
issue to include HCAP days; (2) to recalculate the
Disproportionate Hospital Share Adjustment
accordingly; and (3) to make the resulting payment
within 90 days of receiving the _ required
documentation from the Hospitals; and it is further
ORDERED: that the payments shall include an
award of interest pursuant to 42 U.S.C.
§ 139500(f)(2); and it is further
ORDERED: this Court retains jurisdiction in this
matter pending further order.
/s/
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
Zla
United States Court of Appeals,
District of Columbia Circuit.
No. 07-5273
ADENA REGIONAL MEDICAL CENTER, ec, al.,
Appellees.
V.
Michael O. LEAVITT, Secretary of the United States
Department of Health and Human Services,
Appellee.
Filed: July 31, 2008
BEFORE: Sentelle, Chief Judge, and Ginsburg and
Brown, Circuit Judges
ORDER
Upon consideration of appellees’ petition for
panel rehearing filed on July 14, 2008, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk,
United States Court of
Appeals, District o:
Columbia Circuit.
228
United States Court of Appeals,
District of Columbia Circuit.
No. 07-5273
ADENA REGIONAL MEDICAL CENTER, et al.,
Appellees,
V.
Michael O. LEAVITT, Secretary of the United States
Department of Health and Human Services,
Appellee.
Filed: July 31, 2008
BEFORE: Sentelle, Chief Judge, and Ginsburg,
Henderson, Randolph, Rogers, Tatel, Garland,
Brown, Griffith, and Kavanaugh, Circuit Judges.
ORDER
Upon consideration of appellees’ petition for
rehearing en banc, and the absence of a request by
any member of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk,
United States Court of
Appeals, District of
Columbia Circuit.
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