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Middle position on Medicare appeals

The Supreme Court on Monday chose a Harvard law professor, John F. Manning, to take part in a granted case on hospitals’ right to challenge rulings on the amount of reimbursement they are to be paid for treating elderly or disabled patients under the federal Medicare program.  Manning was assigned to brief and argue a position that lies between the arguments that will be made by the federal government and by 18 hospitals.  The order naming him as an amicus in Sebelius v. Auburn Regional Medical Center, et al. (docket 11-1231) is here.  The case has not yet been set for argument, but is likely to be heard in December or January.

The Court on June 25 agreed to hear the federal government’s petition on whether hospitals in the Medicare program are entitled to get additional time to pursue an administrative appeal after a financial firm acting on the government’s behalf had set a reimbursement figure.  The federal Medicaid law sets a 180-day deadline for filing such an appeal with the Provider Reimbursement Review Board, an entity within the Department of Health & Human Services, which runs Medicare.  The D.C. Circuit Court ruled, however, that the 180 days could be extended when a hospital can show that the government financial contractor has not acted fairly — that is, the hospital can seek a form of “equitable tolling” of the deadline.

As the case was developing in the briefing prior to the Supreme Court’s grant of review, the government was arguing that allowing such extensions would put a significant financial and administrative burden on HHS as it processes reimbursement claims.  In response, the hospitals said that the government had not shown that it could not write new regulations to limit such extensions.  That prompted the government to advise the Court that it “is not arguing that the 180-day appeal deadline is jurisdictional or admits of no exceptions.”  The HHS Secretary, the reply brief said, can grant exceptions in a limited number of cases where “good cause” is shown.

Thus, upon granting the petition, the Court was faced with the government arguing that only HHS could extend the deadline, and the hospitals arguing that courts can do so as a matter of fairness to a treating hospital.  Neither side was arguing that the 180-day appeal filing deadline was a hard-and-fast requirement, with no exceptions.  That is the position that Professor Manning was chosen to put before the Court.  Presumably, there will now be a three-way argument, although a division of time has not yet been made.

Manning is a former law clerk to Justice Antonin Scalia.  It is the Court’s usual practice to select amicus counsel who were former law clerks to present positions not being made by the parties.



Recommended Citation: Lyle Denniston, Middle position on Medicare appeals, SCOTUSblog (Jul. 24, 2012, 11:38 AM),