We often think of SCOTUS decisions has having major moral or political debates at risk (gun rights, inter-racial marriage). But many cases hinge on what a term means, or whether two terms are synonyms, or whether an adjective modifies one word or another.
Such a syntactical decision was handed down June 24, 2022, as Becerra v Empire Health. It has to do with the way Medicare "disproportionate share" extra dollars are divided up, and in particular, how the Medicare patients and days are accounted for. Empire Health thought the statute requires hospitals to get a better deal, but SCOTUS decides the current CMS regulations are correct and no change is warranted.
It's interesting for two reasons:
First, the 5-4 decision split the conservative bench. The dissent, beginning on page 24 of 27, is written by Kavanaugh with Roberts, Alito, and Gorsuch joining him. (In short, a lot of conservatives dissented, and would have taken a position helpful to hospitals.)
The majority opinion comes from Kagan and Breyer and Sotomayor, but was joined by both Thomas and Barrett as well.
Second, the dissent is pretty fun to read, once you know the basic issue in the case.
Sources include:
- CNN here.
- Law and Crime blog here.
- Bloomberg here.
- An older article on the live hearing.
- Decision here, 27-page PDF, dissent at p. 24.
Opening of the Kavanaugh Dissent clipped below:
Under the Medicare statute, HHS pays higher reimbursements to hospitals that serve a significant number of
low-income patients. The statutory formula for determining exactly how much HHS will pay to those hospitals is
mind-numbingly complex. But embedded within the complicated overall formula are various subsidiary calculations, some of which are relatively straightforward.
This case concerns one of those straightforward subsidiary calculations.
Consistent with traditional insurance and
coordination-of-benefits principles, Medicare by statute
cannot pay for a patient’s hospital care if, for example, the
patient is covered by private insurance, the patient has exhausted her Medicare benefits, or a third-party tortfeasor
is liable for the patient’s care.
The retrospective reimbursement question raised by the statutory provision in this case
is this: Was a patient “entitled to” have payment made by
Medicare for a particular day in the hospital if the patient
by statute could not (and did not) have payment made by
Medicare for that day? In my view, the answer to that narrow question is straightforward and commonsensical: No.
Importantly, from the time the statute was enacted in 1986 until 2003, HHS interpreted this statutory provision
in the exact same way that I do. See 51 Fed. Reg.
31460−31461 (1986); Brief for Petitioner 32−33. Then in
2004, HHS abruptly changed course. Why? Presumably to
save money. HHS was trying hard to find ways to contain
Medicare costs in light of increasing Medicare expenditures
and the country’s fiscal situation. ....
To begin, both parties offer a dog’s
breakfast of arguments about broad statutory purposes,
real-world effects, surplusage, structure, consistent usage,
inconsistent usage, agency deference, and the like. But this
case is resolved by the most fundamental principle of statutory interpretation: Read the statute.....
Zero in on the phrases “entitlement to have payment
made” and “for such days.” In my view (and in HHS’s view
from 1986 to 2003), a patient was entitled to have payment
made by Medicare for particular days in the hospital if Medicare was obligated to pay for the patient’s care for those
days. Stated the other way, a patient was not entitled to
have payment made by Medicare for particular days in the hospital if the patient by statute could not (and did not)
have payment made by Medicare for those days—for example, because the patient had other insurance, the patient
had exhausted his Medicare benefits, or a third-party tortfeasor was paying. Simple enough.
To be sure, patients who satisfy certain criteria (for example, those who are age 65 or older) are generally “entitled” to Medicare hospitalization benefits. No one disputes
that point. But this reimbursement provision looks to
whether the patient was entitled to have payment made by
Medicare for a particular day in the hospital. And the answer to that question is no if Medicare by statute could not
(and did not) pay for that day in the hospital.
[Schroedinger's Cat here:]
...A patient cannot be simultaneously entitled
and disentitled to have payment made by Medicare for a
particular day in the hospital.
####
Referring to the majority ruling, "The Court concludes otherwise...[by #3...]...invoking a parade of horribles about what could happen to other provisions of the Medicare statute if the Court were to read this as I would. With respect, none of that stands up." ....
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I like the term "Parade of horribles;" I used it in a webinar earlier this week. Opponents of the 2016 MCIT policy at Medicare "invoked a parade of horribles" which I felt were over hyped.
