AHLA's Speaking of Health Law

Becerra v. Empire Health Foundation: One AHLA Member’s Experience at the Supreme Court

August 02, 2022 AHLA Podcasts
AHLA's Speaking of Health Law
Becerra v. Empire Health Foundation: One AHLA Member’s Experience at the Supreme Court
Show Notes Transcript

Most lawyers dream of arguing a case before the Supreme Court, but only a few ever get the chance. One of those lucky few was AHLA member Daniel Hettich, Partner, King & Spalding LLP, who argued for the defense in Becerra v. Empire Health Foundation at the Supreme Court on November 29, 2021 (the opinion was issued on June 24, 2022). Daniel tells Ross Burris, Shareholder, Polsinelli PC, and Jeanne Vance, Shareholder, Weintraub Tobin, about the specifics of the case, how the case worked its way to the Supreme Court, and his experience arguing the case before the justices. From AHLA’s Regulation, Accreditation, and Payment Practice Group.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

This episode of ALA speaking of health law is brought to you by HLA members and donors like you for more information, visit American health law.org .

Speaker 2:

Good afternoon. My name is Ross Burris . I am a healthcare litigation shareholder at Polsinelli in the Atlanta office. I'm joined today by my colleague Jeanie Vance, who is chair of the rap group for ALA. I'm gonna say hello, Jeanie.

Speaker 3:

Hi everybody. We're uh , thrilled to be able to offer this to you and we hope you'll come join us for , um, additional rap activities , um, over the next HLA year. Welcome.

Speaker 2:

Thanks Jeanie . Uh, and I should have mentioned this a moment ago, but I am one of the vice chairs for rap and have had the , uh, privilege of being one for several years. And for many of those years, I was a , a vice chair with my friend , uh, and colleague , uh, Dan ick . And Dan is on the , uh, call today as well. And he is gonna be telling us about a recent Supreme court case , uh, that he argued. And it came out on June 24th this year, not the Supreme court case that many of you are probably thinking about from that date, but, but also a very important , uh, decision, especially for hospitals and the healthcare , um, industry. Uh, Dan, can you introduce yourself and , um, say hello to everyone?

Speaker 4:

Sure. Yes . Thank you , Ross. Um, yeah, my name is Dan ick . I'm a partner at king Spaldings , uh, in king weldings healthcare practice. I'm resident in the Washington DC office. Um, I've been doing Medicare reimbursement , uh, work for since 2006 . Um, so what's that , uh, a long time. Anyway, I've been at Kings balding since 2008. I came over with , uh, Dennis Barry, some old timers might remember , uh, the name, Dennis Barry . Um, he was my mentor for many years before he retired in 2015. Uh , but I came over with Dennis Barry's group from Vincent and Elkins , uh, in 2008 , he came in Spalding and , uh, I've , I've been there ever since.

Speaker 2:

So Dan, I , I neglected to actually say the name of your case. Would you tell everyone?

Speaker 4:

Sure. So it's , uh, be Sarah , the empire health foundation is how it's captioned in the Supreme court. And Bea's first because we won in the ninth circuit. So as the government that had requested Supreme court review , uh, requested circuit from the Supreme court and was granted , um, so it's, Beara the , the empire health foundation.

Speaker 2:

And so for our health law firms , explain to them what the basic premise of, of this case was. Uh , and why we as , as hospital lawyers and, and health law professionals , uh, might , might be interested in this.

Speaker 4:

Yeah. So this is, is an O one of the ongoing , uh, sagas that is the Medicare dish , uh, reimbursement , uh, adjustment that there's been a , a lot of litigation. In fact, the less Medicare reimbursement Supreme court case was also about the Medicare dish payment and dish stands with disproportionate share. And it's a payment that hospitals that treat at this proportionate share of indigent patients get basically Congress said, Hey, things are a little bit more expensive for hospitals that have a lot of poor patients. So we're gonna give you a little bit, you know, we're gonna adjust your standardized payments to, to reflect that fact. And in our case, in particular, the question was whether patients who have so Medicare doesn't pay indefinitely, it pays for , uh, typically up to 90 days of a hospital stay. Uh , then there's, there's some lifetime reserve days that patients can tap into once, but at a certain point, patients can exhaust can use up their hospital, the Medicare hospital benefits for a particular spell of illness. So the question in our case is when that happens, do those patients continue to be entitled to Medicare benefits after they've exhausted their Medicare benefits? And that's important because this dish payments, I don't wanna get too far into , into the details. Um, but it's composed of two fractions. One is the Medicare fraction, but the other is the Medicaid fraction and almost all of these patients, the vast majority of them. Anyway, once they've exhausted their Medicare benefits. So they've been in the hospital by definition a very long time. The vast majority of them then get paid by, by Medicaid, Medicaid kicks in and won't take care of their hospital bills, but the Medicaid fraction, categorically excludes any patient who's considered entitled to Medicare benefits. Uh , if that's not confusing enough , uh <laugh> uh , in Kagan's , uh, majority decision, actually the one thing the majority and the dissent agreed on was how complicated the Medicare reimbursement is. Um, but because patients are considered to be Medicare entitled to Medicare benefits or category categorically excluded from the Medicaid fraction , um, it tends to D de decrease , uh, payments to hospitals. If you treat patients as still being entitled to Medicare benefits, even after they've exhausted those benefits.

Speaker 2:

So would this, this particular case, was it a , it was over a Tran , was it over a group of patients or was it over a , uh, a specific ho support ? How did that work?

Speaker 4:

Yeah, so there was , um, a specific hospital and cost report at issue in this case for empire , uh, health foundation. Um, but there are probably certainly dozens, probably hundreds of hospitals appealing this same issue at various stages of the appeal process. Um , so obviously a Supreme court decision is gonna decide, you know, some us in front of the provider reimbursement review board, some are actually , uh, in federal court. So this decision was going to, you know, decide the issue obviously by the nature of the Supreme court , uh, for everybody.

Speaker 2:

So you, you were being sent up here , here you are. Dan had a reimbursement lawyer being sent up to the Supreme court of the United States to argue a , a extremely important Medicare reimbursement case that affects arguably, you know, hundreds, if not thousands of hospitals across the United States. Right?

Speaker 4:

Yeah, yeah. That that's basically right.

Speaker 2:

Let me ask you this . How many Supreme court cases had you argued before this, Dan?

Speaker 4:

Um , no , this , this is my first.

Speaker 2:

Okay . And

Speaker 4:

In fact, I think it might have been, I might have been the first like designated healthcare attorney, cause obviously I'm a healthcare attorney , um, to argue Supreme court case in nearly a decade. That's

Speaker 2:

I interesting question. I remember, I wonder how many HLA members have argued from the Supreme court? I can't imagine it's very many.

Speaker 4:

Yeah. I think , uh, I think it's a pretty rarefied crowd and, and it was, you know, really exciting and I'll tell you, you know, it was , it was step by step , right? I said, I've been doing this type of work for a long time. 60% of my practice is , is litigating these issues. Um, you know, usually not part of the Supreme court district court , um, appellate court , et cetera . And that's how this case started. I got involved at the district court level actually at the oral argument phase and, and we won at the district court , uh, oral argument who was in Spokane Washington. Um, the district court judge agreed with us. One , one thing I should have mentioned, Ross is the history on this issue.

Speaker 2:

Yeah.

Speaker 4:

Two of other circuits had decided in the government's favor on this issue, which is part of the reason why the Supreme court granted cert cuz of the split. So the DC circuit and the sixth circuit said the agency's position that even after a patient has exhausted his Medicare , uh, benefits. You know, the patient is still entitled to Medicare benefits , uh, that that's a reasonable interpretation of, of the statute. So going into the district court, we had an uphill battle, but the district court decided in our favor and the government's appealed to the ninth circuit. And I did argument , um, also in Spokane , uh, in front of the ninth circuit. Uh , this was right before the pandemic kind of broke out, I think , February of 2020. Um, and, and I think Washington state turned out to be kind of one of the, you know, the , the Genesis points of this, but I didn't know that at the time, right. Uh , another unanimous decision , uh, all three justices agreed with us. Um, judges, sorry, I'm being ahead of myself with the justices, but all three judges agreed with us , um, based somewhat on some unique precedent that the ninth circuit had. Um, so they broke with the other two circuits. The government requested a review. We , we fought that off, not a single ninth circuit judge voted for review. Great . So we were pretty good . Um , but the government passed for a , you know , cited the circuit split, you know, with the DC circuit and sixth circuit on one side and the ninth circuit on the other, we obviously opposed, you know, we told the justices there's , there's nothing to see here, you know, just a little Medicare reimbursement dispute. Um, but when this solicitor general asked for cert I think, think she generally get gets it. Um,

Speaker 2:

No , let me , lemme stop you for a second. So you are a reimbursement lawyer. You are not a , a typically a , a in court litigator in that, you know, you're not the unless correct me if I got it wrong. Like you're not typically in there taking the depositions, you're not typically drafting the discovery responses. You're writing the Mo you may , you may help on motion for some re judgment, I guess when it involves, you know, kind of wonky reimbursement issues, but you're, you're not a typical rank and file litigator, right?

Speaker 4:

Yeah. Well , it depends how I look at it , Ross . So not, I , I think within this field and it is a unique , uh, field under the kind of APA standard, right. Where, cause I do do quite a bit of litigation there, but you're right. It's not deposition all that settled at the agency level. So in front of the provider,

Speaker 2:

You do a lot of like the kind of work I do where you're, you know, you, you argue with administrative agencies, you do administrative hearings, you do , uh, all sorts of interesting things , uh, you know, like that, but you're not necess , you know, you're , you're probably not actually in the federal courtroom very often.

Speaker 4:

Yeah. It's, it's a relatively rare , um, uh, event that these cases make it to federal court , um, when it does. And that was one of the, you know, I , I really appreciate the support that king SPD in gave me of saying, you know, this was a case that I obviously was , uh, very familiar with. And when it is one of my issues that I've argued, for example, in front of the PRB , you know, which is where these cases begin mm-hmm <affirmative> , um, and at that point it's a little bit more traditional litigation, right? Where there's witnesses and you can have declarations and subpoenas and all that. Um, but once the P R B decides and the administrative of the HD can review at that point, it becomes almost an appellate practice, even at the district court level, right. The record is set and everything is just, you know, motions for summary judgment. There usually is an oral argument, as I said, and I kind of did the oral arguments there. So, so I do do a lot of that type of litigation, but it's certainly not kind of what people, you know, cross examining witnesses or, or that type of thing. It's more , um, frankly, it's more what I enjoy, which is the , um, more academic, more, you know, what does the statute say, right ? Um , was the agency's decision supported by this , uh, but by the administrative record or not, et cetera .

Speaker 2:

No , I, I totally get that. And that, that's a lot of the area where I play as well. And I , I I'm with you. I think it's a lot more fun than, than taking 37 fact witness depositions, you know , five of which you may actually use one day and the rest of which you don't want. Uh, so I, I understand that did tell me this though. Like how, how did you find out you're going to the Supreme court and , and , and legally, I think I , I get it, but, you know, what was that like, you know, as this, you know, to find out that you, Dan had a regulatory lawyer mining your business, you know, deep, deep, the , you know, in the Medicare regulations and manuals , uh, are gonna get to argue in front of the Supreme court, something that I think every law student thinks about or dreams about for five seconds and almost none of us ever actually get to do, especially those of us in our, in our special field. Uh , tell me what , what was that like ?

Speaker 4:

Yeah, it was, it was a wild ride for , and certainly I , I dreamt about it . I never ne never really expected it. Um, and it was, as I kind of allude to, it was incremental. Right. You get the district court , oral argument goes well, ninth circuit. And, but then the Supreme, court's a whole nother ball game . Obviously. I think everybody realizes that. So when the court granted cert , um, it became a question, okay, you know , who's gonna argue , uh, this case. Um , now that kind of what we , I thought was so unlikely , um, to happen was happening. And it was kind of a multi-step process. Right? First conversation I had was, was with my client and I said, look, you know , um, I , I know this case, well, I think the arguments went well in district court, ninth circuit, obviously. Um, but we have other very experienced litigators king , Ms . Balding has, you know, a separate appellate group that all they do is, you know, arguments , uh, like this with multiple former Supreme court clerks , uh, et cetera . Um , and the conversation I had with my clients was, you know, we might want to think about whether one of these other attorneys might be better suited. And my client's reaction was then we'll , you know , if you were advising us to go with another one of your partners, we would, you know, probably take your advice, but our preference is for you to do it. We know you, you did a great job. We want you to do it. So that was a first hurdle . Then I'm talking, that's

Speaker 2:

What nice, nice feedback from a client to, to be appreciated and trusted like that.

Speaker 4:

Yeah. And then the second conversation became with , with my firm and with these, you know, the appellate partners that had helped me throughout, you know, the process , uh, and VO in particular in the ninth circuit , um, appeal, she was , she was, you know, kind of right by my side. Um, and, you know, discussing internally who we thought was the best candidate and that conversation again, kind of, as you alluded to Ross, went as, you know, as well as you could hope, I think, and you know, the feedback I got there was then we listened to the ninth circuit argument and, and the district report , you did a great job. We think you can do this if you want to. Um , but if you don't, there's gonna be extreme pressure. You're gonna be scrutinized, you know, to death. It's , it's a kind of a national pastime to dissect Supreme court, oral arguments and , and critique them. If you don't want to do it, we we're here for you. And we'll , um, we'll do it for you. If you do wanna do it, we'll do everything we can to prepare you , uh, you know, to knock it out of the park. So now the decisions on me, right. I have kind of the support from the client support from the firm, you know, it's up to me, what do I want to do? And one of the conversations ,

Speaker 2:

No pressure, right. <laugh> yeah , exactly.

Speaker 4:

I had a lot of conversations with Dennis Barry, my , my prior mentor , uh, and others. But the one piece of advice that stuck out to me was , uh, old colleague of mine at V and E. He said to me to then if you get a chance to bat at the world series, you go up and bat the world series. You know what I'm say ? Nah , I might not be ready. I'll , I'll stay here on the bench, you know, let somebody go up. Uh , and I was like, you know, I , I think that's right. And, and I mean, it's, there's a lot of intangibles, right? I don't wanna sound like , um, I modest or anything, but really I thought that I could be particularly with the right preparation, the best attorney for, for this job, given my history with the case, my relationship with the client and my prior kind of experience in , in oral advocacy. Um , so I kind of made the commitments to , uh, to go forward with it. I regretted it at some moments . I'll tell you in the preparation process .

Speaker 2:

Tell me about that. Actually. I wanna hear that. Tell me what , what was the first moment you had when you said, oh, crap. <laugh> this was a mistake. I should just call the, you know, the white haired partner down the hall and let that person go down and, and argue this for me.

Speaker 4:

Yeah. Yeah. So there were several moments where, where I had that thought. I think maybe I , we did a ton of moots, I think at least six different moots of the oral argument with different, you know, groups of people. Um, I think probably my first mood, you know, was pretty intense. It was the first one and I kind of came out of that beat up . And I , I think that was probably one of the first times I was like, Hmm . And then , um, but, but it was great. The partners, you know, they made good in what they had promised where , uh, Ashley Parrish and Jeff buckles and envoys , uh, were kind of some of the , the lead partners. But then we had all sorts of , uh, other partners, one of them clerked for three difference , Supreme court justices, Paul Zeina . He had clerked for Scalia. He had clerked for , uh, Gorsuch, I believe. And he had clerked for Kavanaugh when Kavanaugh was on the DC circuit. Um, so I , I had such a wonderful support team and , and other , um, you know, multiple other Supreme court clerks that were able to kind of really , um, you know, prepare me for, for what I was gonna be facing. Um, you know, the argument was , uh, November 29th, which was cyber Monday. So the Monday after Thanksgiving. Wow. So I think that another time I regretted was when I was like half nauseous over my Turkey, Thanksgiving dinner thinking, right.

Speaker 2:

Your family's asking you why you're not having a second helping of mashed potatoes. And all you wanna do is go and go in your room , freak out.

Speaker 4:

Yeah, exactly. Thinking about where I was gonna be on on Monday morning and we had whole COVID protocol. So I think it was 9:00 AM. Sunday. I have to report to a clinic designated by Supreme court to get a COVID test. Oh,

Speaker 2:

Wow.

Speaker 4:

Yeah. Yes. And my , my co-counsel and VO was flying in from California had to do the same. So she was, I think her appointment time was slightly different from mine, but she was there at this clinic. Um, happily came back negative. What fascinating me say , if it comes back positive, you think they'd maybe reschedule or post one , or have somebody, if it came back positive, you're just supposed to argue , uh, via zoom. <laugh> like , you know , um, so co COVID or no, COVID you're on , but, but it came back negative , uh, happily. Um, so yeah, but, but one, one highlight of the prep Ross. So those were kind of , you know , some of the, the more , uh, trying moments if you will. Right. But , um, I discovered I , I went to Georgetown I'm alum from , from Georgetown law school where I also got a master's in bioethics, which kind of , uh, set my interest in , in health law , um, off. Um, but I never really appreciated that the Georgetown has this Supreme court Institute, which apparently preps almost, or moots, almost every case that appears in front of the Supreme court or , or at least one side of the case. Usually the parties fight out, fight it out to see who's gonna get that, you know , remarkable , uh, resource available to them. But the solicitor General's office apparently doesn't participate. So I , I had , you know, dibs on it. Um , and it was a few days, I think it was the Tuesday or Monday before Thanksgiving, usually be closer to the argument, but because of Thanksgiving, everything was a little bit, you know, off , um, that we had a Moo there. They have a little, its apparently it's exactly like the Supreme court courtroom, just a little bit smaller and they get five justices, five, you know, attorneys to act as on behalf of the justices , um, Supreme, you know , experienced Supreme court practitioners, but they asked me if I had a recommendation for a subject matter expert, you know, to participate on this panel. Um, and I recommended my, my mentor, Dennis Barry , um, who retired in 2015. Um, I said , you know, he'd be great. He knows this in and out, you know, he's extremely , um, smart. Um, and I think he'd really get, get a kick out of it. So, so it worked out, he was Dennis was available and, and they thought he would be a good fifth justice. Uh , so he was on the panel. So it really was one of, kind of the highlights of my career to be back at my old law school Georgetown a few days before Supreme court oral argument with my longtime mentor, Dennis Barry coming out of retirement, felt like something out of a , a nerdy version of Rocky , you know, he's coming outta to help prepare his , his protege for , for the big event . Um, so that, that was very cool. Did

Speaker 2:

You know he was coming or did he just like appear from the curtains and you're like, oh my God ,

Speaker 4:

No , I , I knew I helped coordinate and uh , you know , I'd put his name into the hat. Okay . So yeah , so I knew , but it was still

Speaker 2:

That'd much cooler actually. Right. If they just like surprised you with who they were and you were like, oh my God , that despairing , you know .

Speaker 4:

Yeah , exactly . That'd .

Speaker 2:

And so you are telling me earlier in , in , and , you know, just for those listening at home, I had to benefit of hearing a little bit of this over a , a glass of wine at the Medicare Medicaid Institute in the spring. Um, but I wanna hear, you know, what, what surprised you when you got to the building that morning and cause I'm presenting, you'd never , had you ever been before to, to the Supreme court?

Speaker 4:

Yeah . So the only time I had been was I alluded to it , uh, at the beginning of the podcast, it was that other Medicare reimbursement case that went to the Supreme court also on a disproportionate share issue was called the Le Viera mm-hmm <affirmative> . Um , and that was in 2019 and we had a lot of clients that were very interested in , in the issue. So I was there in the attorney lounge for that oral argument, which was very cool. Um, but that was, you know, being there as a spectator, I probably don't have to say this is very different than being there as the arguing council .

Speaker 2:

<laugh> absolutely. Um , so tell me about that day. You , you , I mean, what, what surprised you were , you know, was the bench higher than you expected? Were the chairs less comfortable? Uh, you know, what was, tell us, you know, for those of us who , uh, have never had this opportunity, tell us what surprised you.

Speaker 4:

Yeah. So I mean, one thing that surprised me in , in a good way , um, was I think the benefit of all that preparation, having gone through the crucible, you know, the crucible before, cause folks didn didn't pull their punches in , in any of the various Moos that we did include the , the Georgetown one that, and as much as I was joking before about, I mean , I wasn't , I mean, I really was, you know , uh, extremely anxious at different moments of the preparation, but the day of I'm really grateful, I was able to enter that the zone that you hope to be in, which was really just kind of sitting back and taking it in , um, you know, you waving the attorney lounge maybe for half hour and then 15 minutes before or enlarge , they , they let you into the actual courtroom and you know, that justices aren't coming out for about 15 minutes. So I remember I was sitting there, you know, on council's chair, just looking around at this magnificent room and, you know, the nine empty chairs there. And, and I , I was smiling. I had a mask on, but underneath my mask, I was smiling to myself thinking my goodness, you know , uh, to have this opportunity, which I'm really glad that, you know, I was able to have that, that kind of perspective and, and right . You know , at , at that moment , um, one of the things Ross mentioned this to you and, and I found it , I didn't know it until a few days before oral arguments. I forget if one of my, one of the appellate partners said, or just looking it up, but the solicitor General's office still argues, or least, you know, the men and Jonathan Bond was my opposing counsel from the solicitor general . So not the solicitor general herself, but somebody from her office , um, and the men dress in tails, they show up in a morning coat, you know , like a tuxedo , um, which was quite, you know, quite formal. So I was wearing,

Speaker 2:

I would've needed that warning too. I feel like I've found that very distracting <laugh> if I , if I was not informed.

Speaker 4:

Uh, yeah. Yeah. So I , I, I , I knew and, you know, everything is a little bit different for this solicitor general, you know, there's a general attorney's , uh, the attorney's lounge that is for, you know, most attorneys, but this solicitor general has a separate office, you know, off of the attorneys' lounge. So , um, the solicit apparently always sits on the same side of the courtroom, whether , uh, she's the respondent or , or the petitioner, it doesn't matter. So everything's a little bit different. Uh , certainly they have home field advantage, but despite that, you know, I think the oral argument went, I mean, this is gonna sound counterintuitive. Cause you know, I don't know if we ever mentioned this, but we ended up losing , um, <laugh> five, five to four , but the oral argument went, I think, as well as it could have . Um, you know , um, one of the interesting arguments that we had was, and was a bit broader than a wonky Medicare reimbursement issue was about the applicability of Chevron difference , right ? And whether particular case to agency deserve Chevron deference, there were several elements of, you know, the congressional history of Congress intervening several times to tell CMS where HHS, you know, you should be doing this a little bit differently that undermined the premise that Congress meant to, you know, defer to the agency on questions specifically related to dish . And those arguments got traction, including from some of the justices that are typically more pro Chevron justice Brier said in oral arguments, you have awful qualms about giving Chevron deference to the agency on , in this case and sort of my , or said the same thing. So the argument , um, went, you know, pretty well. Um, but , um, you know, the, the final outcome and, you know , it was clear early on. So Kagan vote wrote the majority decision against us, you know, in favor of HHS. And it was a very strange lineup . It was, you know, Kagan sort of my own Briar . So you'd kind of, you know , maybe expect those three to be on the same side of an issue, generally speaking , um, although a little bit surprising, as I said, because sort of my arm Brier seemed to be sympathetic to our argument, at least that the agency didn't deserve deference. Um, but then they were joined by Barrett , uh, justice Barrett and justice Thomas , um, and then writing for the dissent was justice. Kavanaugh was, you know, agreed with our position and, you know, the remaining justices Gorsuch , Roberts and Alito , uh, joined him. So it was a really strange and one to be entirely honest, I didn't quite predict , um, you know, trying to think of how things might shake out. Um, it was clear all along that Kagan was not on our side. Um, one of the surreal moments was kind of going toe to toe , uh, with, with Kagan in the oral argument because , um, obviously that's her majority decision showed she was , uh, skeptical of, of the hospital's position of , of our position . Um, but I , I thought we held our own , um, you know, in , in responding to some of , uh, those concerns, but apparently, you know , uh, it , it wasn't to be, we got that five, four adverse decision took seven months for the justices to get there. Like it was argued in November, decided end of November decided end of June. Um, so it was extraordinary long time. So there's some SOS in knowing one, clearly we gave the justices something that you on since it took seven months and two, you know, that it was , was five to four, you know, we really couldn't have gotten any closer , um, which is both consoling and, and a little bit frustrating.

Speaker 2:

Yeah. I mean, I , I can imagine it and , and in , you know , the interesting thing, I , I never thought about this before, but you know, in litigation we often always feel, well , you've got another option. Right. We got another level. There's one more thing we can try, but there's nothing else to try when you've lost at the Supreme court. Uh ,

Speaker 4:

It is, it takes some getting used to, yeah . This idea of true finality, right . Actually you can petition the , the Supreme court. Did we hear a case? <laugh>

Speaker 2:

There you go. <laugh>

Speaker 4:

I'll , um, you know, reveal ahead of time. We're not playing the file. <laugh> petition to rehear . Uh , we did do a little bit of research on it and has granted one time out of a thousand. So it's not one in 10, one in a hundred, basically one in a thousand, out of 3000 requests, the court granted rehearings , uh, three times and often those were cases that were tied and, you know, the , the original decision was tied for some reason and a new justice had joined. So that could, so the granted rehearing to actually decide the case and try to

Speaker 2:

Respond saying of the rehearings, how many people actually got the first decision overturned or re

Speaker 4:

Yeah , I bet . Right? Yeah . Out of those three out 3000 , right? You , maybe one of them is my guess. Uh , but , but you know, one of the thousand was enough. Okay . We're not gonna go there, but interestingly Ross, and one of the silver linings , uh, in the decision is that throughout the appeal, we had an argument in the alternative, right. Um, so, and again, I , I don't wanna get too wonky here, but the Medicare fraction says you include in the, the measure of ind indigency, those who are entitled to benefits on the part entitled to Medicare, and those who are entitled to SSI, benefits, supplemental security, income benefits, which only, you know, very poor , um, people qualified for, and as we just established, when it comes to entitled to Medicare benefits, the agency says whether or not Medicare pays doesn't matter. As long as you meet the eligibility criteria, you know, you, you qualify. And the Supreme court agreed with the agency on that. Hmm . But then in the same sentence, when it comes to entitled to SSI, same word entitled, the agency says, no only patients who, who receive SSI cash in their hands are considered entitled to SSI benefits. So if the check is even returned as undeliverable, that patient doesn't count if the patient , um, doesn't accept direct deposit, that patient doesn't count as being entitled to SSI. So in the ninth circuit district court, we said, Hey, if you decide in favor of the agency on there very broad definition of what it means to be entitled to Medicare, then you should strike down the agency's narrow definition of what it means to be entitled to SSI. Cause they're completely inconsistent. And in both cases, the district court and the ninth circuit said, we're deciding in your favor, on your primary arguments that, you know, this interpret is too broad. We're not gonna address your argument in the alternative. Well, now that the Supreme court has kind of endorsed, you know, as overturned , uh, the ninth circuit decision on , on the primary issue, we think the argument in the alternative is ripe to be decided. Um, and so we're working on a petition now upon remand because Supreme court remanded the ninth circuit to say, Hey, we have this, we had this argument in the alternative all along. You know, that if, if this broad definition stands, then this narrow definition has to fall. Um, and, and you should hear that issue. And my understanding from people that are crunched numbers is that it might not be worth quite as much as the primary argument is you'd expect. Um , that's why was our backup , our argument in the alternative. Um, but it's worth a substantial amount of money. If hospitals were able to include a much larger cadre of patients as being entitled testi benefits , um, that would have a significant effect , uh, positive effect on their disproportionate share payments. So that's that , that's the next fight .

Speaker 2:

In other words, it's not over, <laugh> it .

Speaker 4:

It's not over. It's never over,

Speaker 2:

Is it?

Speaker 4:

Yeah, exactly . We're ,

Speaker 2:

That's fantastic. Dan, listen, I know you don't have much time left. Um, and, and we just so appreciate you doing this with us today. I know we, we've tried several times to get this going and, and we've kept waiting on the decision. I we've been talking about this since March, so it took us , uh, took us a while to get the final , um, you know, aside from, from , you know, getting fitted for a morning coat for your next appearance. Uh , what else are you gonna , my last question to you, I guess, is gonna , what , what would you diff do different next time or just, what would you do next time? Even it's the same thing you did this time.

Speaker 4:

Yeah. You know, I'll , I'll , I'll say Ross. I , um, going into the argument, we knew we had our work cut out for us. You know, it was two circuit decisions to one, we knew the Supreme court, you know, we had argued against cer right. As I said, the government asked for Kurt cer you know, we didn't want it. We had our ninth circuit win , unanimous, win , um, going into oral argument. We knew it was a tough case. I got my hopes up during oral argument because it went so well because of, you know, yeah . Particularly sort of my Brier Kavanaugh was playing our side , just chief justice Roberts was playing it on our side. And I had started to think, Hey, you know, we have a good chance of, of winning this.

Speaker 2:

I think that's every litigator. Right? Like you get caught up in your argument, you're feeling, you're feeling strong, you're feeling good. And , and you're like, how could I lose

Speaker 4:

<laugh> yeah, yeah. And , and again, you know , that match up . I , I, you can imagine I went through, so how does the government get to five votes? Okay . We get Kagan . So , or maybe she seemed on our side, but potentially, but you know, Barry and Thomas , both going on that side, you know, I didn't predict it. So I think if I had to do over again, I would, you know, we always knew don't count your chickens before they hatch. And , and I knew that, and that helped because, you know, I knew we had opposition, I knew Kagan, you know, and Kagan's a very powerful , uh, person dive against you because as I understand that, and as you know, you know, the facts bear out, she's very good at rallying support for her.

Speaker 2:

Well , solicitor general herself. Right. Wasn't

Speaker 4:

She? Yes, exactly. Harvard , um, yeah. Har Harvard Dean . Um, so, so, you know, there's , I suppose there's no shame in , in going down, you know, in , in front of Kagan , but I think if I had different, I would've tempered my expectations a little bit more knock on my hopes up , uh, quite so high. Right . But again, what a remarkable experience, and I'm really glad going back to where we started of, you know, the fact that I decided to do this , uh, there were moments of doubt. There were moments, as we said, where I was like, you know , what have I got myself into ? Um, but at the end of the day, what are remarkable , uh, experience once in a lifetime. And, and I do think, you know , despite losing one other thing, I'll say the support, I got a lot of nice congratulatory emails after a argument cause folks thought about , well , the client was very pleased. I think I almost got more after the adverse decision folks writing to me from outside my law firm, other attorneys saying you did a great job. You should hold your head up. You know, it didn't go your way. But , um, and that , that really meant a lot, you know, even after getting, you know, that narrow loss still knowing, you know, that, that I had that support was really powerful.

Speaker 2:

Well, I, I'm proud of you and I'm proud to know you and have worked with you. And I think it's, it's , it's tremendous what you did for hospitals and , uh, and the experience you got making all us health lawyers look good in a very important place. So , um, thank you . Thank you . And , uh, and thank you for joining us today. Jeanie, do you have anything to share?

Speaker 3:

Thanks so much, Dan. We really appreciate it. And , um, we, we certainly are proud of one of our former rap vice chairs , so way to go

Speaker 2:

We'll claim you. We'll definitely claim you for this one .

Speaker 1:

Thank you for listening. If you enjoy this episode, be sure to subscribe to ALA speaking of health law, wherever you get your podcasts to learn more about ALA and the educational resources available to the health law community , visit American health law dot .