Wednesday, November 24, 2021

Billions (and Chevron?) at Stake in SCOTUS's Medicaid Case

It's a health-law-heavy docket this year over at SCOTUS. Next up for oral argument (Nov. 29) is Becerra v. Empire Health Foundation (No. 20-1312; SCOTUSBlog summary). The case involves the somewhat mind-numbing question of how to calculate the "Medicare fraction," one of two ratios that, when combined, determine whether a hospital is entitled to supplemental Medicare reimbursement adjustments  as a Disproportionate Share Hospital (DSH) -- that is, a hospital that provides care to a large number of low-income patients. A 2004 change in the calculation of the Medicare fraction resulted in higher DSH payments to some hospitals and lower payments to others. The other fraction is the "Medicaid fraction."

This is a statutory-interpretation question: do the phrases “entitled to benefits under [Medicare] part A” [42 U.S.C. § 1395ww(d)(5)(f )(vi)(I)] and "eligible for medical assistance under [Medicaid]" [42 U.S.C. § 1395ww(d)(5)(f)(vi)(II)]. Professor Alison K. Hoffman does a nice job unpacking the issues over at the Commonwealth Fund's blog.

HHS's merits brief makes a strong pitch for Chevron deference. With the conservatives on the Court grousing about Chevron for the past decade or two, it will be interesting to see how far the government is pushed on that point during oral argument.


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