High Court won’t hear case alleging discriminatory Medicare claims denial scheme

The U.S. Supreme Court declined to hear a case alleging that HHS participated in a racially discriminatory scheme of Medicare claims denials. The Fifth Circuit dismissed Edwards v. Burwell for lack of subject matter jurisdiction and failure to state a claim due to untimely filing, failure to specify improperly denied claims, and sovereign immunity. The High Court denied certiorari without comment.

A Texas physician was subject to a Medicare review process between 1997 and 2001 that resulted in denial of most of his claims. Most of those denials were successfully overturned on appeal, but the physician claimed that he was forced to close his practice in 2001 as a result of the initial denials. He filed a lawsuit against HHS, the HHS Secretary, and other unknown agents in 2014, alleging that his claims were initially denied as a result of racial profiling.

In affirming the district court’s dismissal of the doctor’s claims, the Fifth Circuit stated that the claims were filed outside of the 60-day window for judicial review required by 42 U.S.C. § 405(g) and were barred under § 405(h), which holds that a suit against the government or its officers or employees cannot be brought for Medicare actions. Furthermore, the physician failed to specify those claims that were not reversed on appeal (see No jurisdiction for discrimination suit based on reversed claim denials, Health Law Daily, August 3, 2016). He then filed his ultimately-denied petition for certiorari.

After denying cert in health law cases, SCOTUS ends term

The Supreme Court concluded its 2015 term by cleaning house and disposing of many pending petitions for writ of certiorari. In doing so, the High Court declined to hear—and thereby, affirmed the lower court rulings in—a number of health law cases in its order lists of June 27 and June 28, 2016. The Court denied petitions in cases regarding health care employees, the False Claims Act (FCA) (31 U.S.C. §3729 et seq.), and a Washington state law requiring the timely delivery of all prescription medications by licensed pharmacies that was challenged pharmacists with religious objections to certain medications. In wake of the Court’s decision in Whole Women’s Health v. Hellerstedt, it also denied certiorari in two Targeted Regulation of Abortion Providers (TRAP) law challenges.

Health care workforce

The Court denied petitions in both Prime Healthcare Services, Inc. v. Service Employees International Union (Dkt. 15-1448) and Home Care Association of America v. Weil (Dkt.15-683). Prime Healthcare appealed the Ninth Circuit’s unpublished decision finding that it failed to sufficiently allege harm to competition or monopoly power in favor of a conspiracy and monopolization claims against Kaiser Permanente, Kaiser-affiliated companies, and two unions (for more information on this case, see Court dismisses antitrust lawsuit against Kaiser Foundation entities and United Healthcare Workers unions, Health Law Daily, July 29, 2013). In Home Care, the Court’s denial upholds the D.C. Circuit’s decision that the Department of Labor’s revised domestic worker regulations (78 FR 60453, October 1, 2013) that extended minimum wage and overtime protections to home care workers was a reasonable interpretation of the Fair Labor Standards Act due to changes in the long-term home care industry.

False Claims Act

In PharMerica Corporation v. U.S. ex rel. Gadbois (Dkt. 15-1309), PharMerica asked the Court to review its 2015 decision in Kellogg Brown & Root Services, Inc. v. U.S. ex rel Carter, which found that the FCA’s first-to-file rule does not bar subsequent relator claims if earlier lawsuits were dismissed (see Nothing to fear: whistleblower action timeline not suspended during war, Health Law Daily, May 27, 2015). Based on that decision, the First Circuit allowed a whistleblower to revive an earlier case brought against PharMerica that was originally barred under the first-to-file rule (see PharMerica requests Supreme Court review of FCA’s first-to-file bar, Health Law Daily, April 28, 2016; FCA action dismissed under first-to-file bar may get another chance on remand, Health Law Daily, December 17, 2015).

Religious pharmacists

In Stormans, Inc. v. Weisman (Dkt. 15-862), a divided Court denied cert, leading to a dissent from Justice Alito, joined by the Chief Justice and Justice Thomas. Washington state medication prescribing rules require the timely delivery of all prescription medications by licensed pharmacies; an individual pharmacist may refuse to deliver a prescription due to religious objections, so long as another pharmacist working for the pharmacy provides timely delivery. If there is no other pharmacist to provide timely delivery, pharmacists and pharmacy owners must deliver the prescription even in the face of religious objections. The Ninth Circuit determined that the state law is neutral and of general application, and is rationally related to a legitimate government purpose, and therefore does not violate the Constitutional protections of the Free Exercise, Due Process, or Equal Protection clauses (see Prescribing rules withstand religious attacks, patient safety takes the higher ground, Health Law Daily, July 24, 2015).

In his dissent, Justice Alito suggested that the law will make religious pharmacists “unemployable” and notes that the facts in the case show that the pharmacy in question, Ralph’s Thriftway, does not stock emergency contraceptives, but rather uses the practice of facilitated referrals, sending customers to other nearby pharmacies, to ensure timely delivery. The dissent also argued that the law in question is not neutral, because there is evidence to suggest that it was passed predominantly to “‘stamp out the right to refuse’ to dispense emergency contraceptives for religious reasons.”

TRAP laws

The Court also denied certiorari in a pair of TRAP law cases. In Currier v. Jackson Women’s Health Organization (Dkt. 14-997), the Fifth Circuit upheld a preliminary injunction preventing the enforcement of a Mississippi law requiring abortion facility physicians to have admitting privileges at a local hospital and staff privileges to replace the on-staff physicians at local hospitals (see Admitting privileges requirement for abortion clinics put on hold, Health Law Daily, July 31, 2014). Similarly, in Schimel v. Planned Parenthood of Wisconsin (Dkt. 15-1200), the Seventh Circuit affirmed a permanent injunction against a Wisconsin law requiring a physician performing an abortion to have admitting privileges at a hospital no more than 30 miles from the clinic where the abortion is performed (see Court terminates enforcement of Wisconsin law requiring admitting privileges for abortion doctors, Health Law Daily, November 24, 2015). These two Circuit Court decisions align with the Court’s decision released the previous day in Whole Women’s Health, which found that a Texas abortion law requiring physicians at abortion clinics to have admitting privileges at a nearby hospital and obligating clinics to meet ambulatory surgical center standards violated the Constitution by creating an undue burden on access to abortion services (see High Court strikes down Texas abortion restrictions as unconstitutional burdens, Health Law Daily, June 27, 2016).

Supreme Court sets March date for contraceptive mandate arguments

The Supreme Court has set a 90-minute hearing on March 23, 2016, for the seven cases challenging the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) contraceptive mandate. The challenges seek a decision from the Supreme Court overturning the ACA requirement that non-profit groups take action to opt out of the mandate, allowing them to benefit from the blanket exclusion granted to churches and other religious institutions (see Supreme Court will hear 7 challenges to contraceptive mandate, Health Reform WK-EDGE, November 10, 2015).

Non-profits challenge

At issue is whether the contraceptive coverage mandate and its accommodation process, which requires the filing of additional paperwork stating objections to the provision of contraceptives, violate the Religious Freedom Restoration Act (RFRA) (P.L. 103-141) by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the government has not proven that the compulsion is the least restrictive means of advancing any compelling interest. The accommodation itself, the organizations argue, is a substantial burden on their religious exercise.

The Supreme Court will rule on whether the mandate and the accommodation violate the RFRA, but refused specifically to hear claims under the RFRA and the First Amendment that the government discriminated between those allowed an exemption and those not.

ACA implementation

The March hearing before the Supreme Court highlights the challenges found in implementing the contraceptive mandate. Despite these challenges, the ACA provision for contraceptive coverage has already directly benefited millions of women who use contraceptives by decreasing their total out-of-pocket spending on contraceptives.

According to researchers at Washington University in St. Louis, prior to the ACA, high initial costs were barriers to women using highly effective contraceptive methods such as intrauterine devices (IUDs) and implants. Cost also affected adherence to commonly used refillable methods such as oral contraceptive pills, the contraceptive patch, or the vaginal ring with recurring prescription co-payments previously required.

The researchers noted that the provision for contraceptive coverage has the potential to substantially improve public health. Access to contraception without financial barriers reduces unintended pregnancies and births, which in turn can improve maternal and infant health.