United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2013 Decided January 24, 2014
No. 12-5366
ADIRONDACK MEDICAL CENTER, ET AL.,
APPELLANTS
CORNING HOSPITAL, ET AL.,
APPELLEES
v.
KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01671)
M. Miller Baker argued the cause for appellants. With
him on the briefs were Ankur J. Goel and Johnny H. Walker.
Abby C. Wright, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Stuart F. Delery, Acting Assistant Attorney General, Ronald
C. Machen Jr., U.S. Attorney, and Michael S. Raab, Attorney.
2
Before: ROGERS and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge. In 2007, the Secretary of Health
and Human Services revamped Medicare’s Inpatient
Prospective Payment System, updating the diagnostic
weighting used to calculate reimbursements for hospitals
treating the program’s beneficiaries. As with most changes to
complex systems, there were unintended consequences—
namely in the form of overpayments to hospitals—but
Congress had proactively attempted to counter unwarranted
increases by adjusting the standardized base amount used to
calculate reimbursement for the majority of hospitals. The
Secretary thought, however, the fiscal pain should be shared
and opted to temper Congress’ targeted response by mixing it
with an adjustment for hospitals not affected by the
congressional directive. She invoked her broad-spectrum
grant of authority to ensure all hospitals—not just the ones
relying on the standardized amount—would share the burden.
A number of hospitals—those serving rural and otherwise
underserved communities—objected to being part of the cure.
They insist Congress’ legislative prescription—to adjust
standardized base amounts—was the only course available to
the Secretary to offset overpayment. We disagree and affirm
the decision of the district court.
I
For our purposes today, the labyrinthine world of
Medicare has two types of hospitals that enjoy different
reimbursement schemes. The first group is reimbursed under
the “federal rate”—a formula that takes a standardized base
3
amount (derived from national data) and multiplies it by a
weight associated with a diagnosis-related group (DRG).1 See
Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225,
1227 (D.C. Cir. 1994); see also 42 U.S.C.
§ 1395ww(d)(3)(D). While these hospitals are certainly
affected by the Secretary’s actions in the case at bar, they are
not the focus of this appeal.
The second group of hospitals, which includes Appellants
(“the Hospitals”), follows a different formula, the “hospital-
specific rate.” Their reimbursement is calculated with a base
amount derived not from national data, but from historic
operating costs at an individual hospital. See 42 U.S.C.
§§ 1395ww(d)(5)(D), 1395ww(d)(5)(G). That hospital-
specific base is then multiplied by a DRG weight. 42 C.F.R.
§ 412.73(e). Because these facilities typically serve
underserved communities, they have the option of receiving
the higher of either the federal rate or the hospital-specific
rate.2
1
In somewhat more relatable parlance, a DRG is a category of
inpatient treatment. Each DRG weight reflects “the relative
hospital resources used with respect to discharges classified within
that group compared to discharges classified within other groups.”
42 U.S.C. § 1395ww(d)(4)(B).
2
Reimbursements for “sole community hospitals” are fairly
straightforward—such hospitals are paid the higher of either the
federal rate or the hospital-specific rate. See 42 U.S.C.
§ 1395ww(d)(5)(D)(i). The payout for Medicare dependent
hospitals, however, differs slightly—that number is calculated by
taking the federal rate and adding 75% of the difference between
the federal rate payment and the hospital-specific rate payment.
See id. § 1395ww(d)(5)(G)(ii)(II).
4
Congress eventually directed the Secretary of Health and
Human Services to “adjust the classifications and weighting
factors” associated with the DRGs “to reflect changes in
treatment patterns, technology, . . . and other factors which
may change the relative use of hospital resources.” 42 U.S.C.
§ 1395ww(d)(4)(C)(i). But despite longstanding general
authority to “provide by regulation for such other exceptions
and adjustments to . . . payment amounts,” see, e.g., 42 U.S.C.
§ 1395ww(d)(5)(C)(iii) (1982), the agency demurred because
it was unsure how to address the effects of such adjustments.
See Changes to the Hospital Inpatient Prospective Payment
Systems and Fiscal Year 1996 Rates, 60 Fed. Reg. 29,202,
29,247 (June 2, 1995). In response, Congress enacted 42
U.S.C. § 1395ww(d)(3)(A)(vi), which reads:
Insofar as the Secretary determines that the adjustments
under paragraph (4)(C)(i) for a previous fiscal year (or
estimates that such adjustments for a future fiscal year)
did (or are likely to) result in a change in aggregate
payments under this subsection during the fiscal year that
are a result of changes in the coding or classification of
discharges that do not reflect real changes in case mix,
the Secretary may adjust the average standardized
amounts computed under this paragraph for subsequent
fiscal years so as to eliminate the effect of such coding or
classification changes.
Armed with this new provision, the Secretary announced
changes to the DRGs in 2007. See, e.g., Changes to the
Hospital Outpatient Prospective Payment System and CY
2008 Payment Rates, 72 Fed. Reg. 66,580, 66,886 (Nov. 27,
2007). To combat the possibility of overpayments under the
new system, the Secretary adjusted the standardized amount
downward by 1.2% and 1.8% for fiscal years 2008 and 2009,
respectively. See Changes to the Hospital Inpatient
5
Prospective Payment Systems and Fiscal Year 2008 Rates, 72
Fed. Reg. 47,130, 47,186 (Aug. 22, 2007). But Congress
intervened, halving the amount of adjustment by enacting the
Transitional Medical Assistance, Abstinence Education, and
QI Programs Extension Act of 2007, Pub. L. No. 110-90,
§ 7(a), 121 Stat. 984, 984 (2007) (“TMA”). A greater
adjustment would require a determination by the Secretary
that the “changes in coding and classification . . . did not
reflect real changes in case mix” prior to making prospective
adjustments under § 1395ww(d)(3)(A)(vi) and recoupment
adjustments under section 7(b)(1)(B) of the TMA.
The Secretary accordingly conducted retrospective
analyses and proposed a downward prospective adjustment
for hospital-specific rate payments. Citing a need to “avoid
what could be widespread, disruptive effects of . . .
adjustments on hospitals” that would occur by only adjusting
the standardized amounts, the Secretary opted to temper the
impact of reclassification by splitting the difference between
“federal rate” and “hospital-specific rate” hospitals. Hospital
Inpatient Prospective Payment Systems for Acute Care
Hospitals and the Long-Term Care Hospital Prospective
Payment System Changes and FY2011 Rates, 75 Fed. Reg.
50,042, 50,070 (Aug. 16, 2010). The latter group objected,
asserting the Secretary’s action would “endanger their ability
to provide the type of care that Congress specifically sought
to protect by establishing their special Medicare payment
systems.” Id. Relying on the once-obscure grant of authority
in § 1395ww(d)(5)(I)(i), the Secretary implemented the
adjustments anyway. See id.
The Hospitals sought expedited judicial review of the
Secretary’s decision from the Provider Reimbursement
Review Board, which disclaimed jurisdiction but noted it
would have otherwise expedited review. Once the Medicare
6
administrator reversed the Board’s jurisdictional finding, the
Hospitals filed suit in district court, claiming the Secretary’s
decision was arbitrary, capricious, and exceeded the scope of
her statutory authority. The Secretary responded by filing a
motion to dismiss. Finding the statutory scheme ambiguous
and deferring to the Secretary’s reasonable interpretation of
the adjustment provisions, the district court granted the
motion. See Adirondack Med. Ctr. v. Sebelius, 891 F. Supp.
2d 36, 48 (D.D.C. 2012).
II
This case rests on Chevron deference. We review a
district court’s deference decision de novo, “employing
traditional tools of statutory construction.” Nat’l Ass’n of
Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir.
2007) (internal quotation marks omitted). The first step of
this familiar inquiry is considering “the text, structure,
purpose, and history of an agency’s authorizing statute” to
determine whether a provision reveals congressional intent
about the precise question at issue. Hearth, Patio & Barbecue
Ass’n v. U.S. Dep’t of Energy, 706 F.3d 499, 503 (D.C. Cir.
2013) (internal quotation marks omitted). If we cannot
readily divine Congress’ clear intent, we must defer to the
agency’s interpretation of the statute so long as it is “based on
a permissible construction of the statute.” See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843
(1984).
A
The Hospitals begin their Chevron challenge relying on
the canon of expressio unius est exclusio alterius (the
expression of one is the exclusion of others). In their reply
brief, the Hospitals assert they “invoke expressio unius only
7
to establish that subsection (d)(3)(A)(vi) on its own terms
unambiguously authorizes adjustments solely to the
standardized amount.” Reply Br. at 6 n.3. Had the Secretary
attempted to promulgate the changes to the hospital-specific
rates by invoking § 1395ww(d)(3)(A)(vi), the canon would
have force in isolation. But the Secretary did no such thing.
Instead, the manner in which the Appellants rely on the
expressio unius canon suggests they are drawing on the
canon’s preclusive power. In other words, the very
invocation of the canon constitutes a challenge to the
Secretary’s broad authority. The nature of their argument is
in the very name of the canon—exclusio alterius, or the
exclusion of the other. As § 1395ww(d)(3)(A)(vi) concerns
the grant of authority, the invocation of the canon must
naturally involve an attempt to exclude all other potential
sources of authority when it comes to remedying a particular
malady. And when one possible interpretation of a statutory
provision has the potential to render another provision inert,
we cannot simply say, as the Appellants suggest we do, that
we are reviewing the former in isolation. Rather, the canon’s
relevance and applicability must be assessed within the
context of the entire statutory framework. See Am. Bankers
Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 267 (D.C.
Cir. 2001) (“[W]e must not ‘confine [ourselves] to examining
a particular statutory provision in isolation. The meaning—or
ambiguity—of certain words or phrases may only become
evident when placed in context.’” (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000))).
With that in mind, we turn to the Hospitals’ argument.
They read the grant of authority in § 1395ww(d)(3)(A)(vi) as
impliedly precluding the Secretary from modifying hospital-
specific rates to offset increased payments resulting from the
2008 and 2009 coding practice changes. It is clear, they say,
8
Congress intended to shield such rates from modification by
directing the Secretary to adjust only the standardized
amounts in an effort to compensate for the deleterious or
unwanted effects of such changes.
This may be a reasonable reading of the statute, but our
inquiry at Chevron step one is not satisfied by reasonableness
alone. See Chevron, 467 U.S. at 842–43. The expressio unius
canon is a “feeble helper in an administrative setting, where
Congress is presumed to have left to reasonable agency
discretion questions that it has not directly resolved.” Cheney
R.R. Co. v. I.C.C., 902 F.2d 66, 68–69 (D.C. Cir. 1990) (citing
Chevron, 467 U.S. at 843–44). It offers “too thin a reed to
support the conclusion that Congress has clearly resolved an
issue.” Mobile Commc’ns Corp. of Am. v. FCC, 77 F.3d
1399, 1405 (D.C. Cir. 1996) (quoting Tex. Rural Legal Aid,
Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991)
(internal brackets and quotation mark omitted). And when
countervailed by a broad grant of authority contained within
the same statutory scheme, the canon is a poor indicator of
Congress’ intent. See Creekstone Farms Premium Beef,
L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500 (D.C. Cir. 2008);
see also Cnty. of L.A. v. Shalala, 192 F.3d 1005, 1014 (D.C.
Cir. 1999) (“Under Chevron step one we consider not only the
language of the particular statutory provision under scrutiny,
but also the structure and context of the statutory scheme of
which it is a part.” (quoting Ill. Pub. Telecomms. Ass’n v.
FCC, 117 F.3d 555, 568 (D.C. Cir. 1997) (internal quotation
marks omitted))).
Even if the canon has some force here, nothing
unambiguously suggests Congress intended to strip the
Secretary of her broad grant of authority under
§ 1395ww(d)(5)(I)(i). Consider, for example, the language of
§ 1395ww(d)(3)(A)(vi): “the Secretary may adjust the
9
average standardized amounts.” The Hospitals understand
this to mean the Secretary may only adjust the standardized
amounts. See Reply Br. at 3. Momentarily setting aside our
understanding that Congress generally knows how to use the
word “only” when drafting laws, see Pub. Citizen, Inc. v.
Rubber Mfrs. Ass’n, 533 F.3d 810, 817 (D.C. Cir. 2008), it
seems more likely that § 1395ww(d)(3)(A)(vi) was Congress’
attempt “to clarify what might be doubtful.” See Shook v.
D.C. Fin. Responsibility & Mgmt. Assistance Auth., 132 F.3d
775, 782 (D.C. Cir. 1998).
Prior to the enactment of § 1395ww(d)(3)(A)(vi), the
Department expressed doubts about its ability to correct the
potential for anomalously-high payments resulting from
changes to how hospital cases were classified. See Changes
to the Hospital Inpatient Prospective Payment Systems, 66
Fed. Reg. 39,828, 39,862 (Aug. 1, 2001) (“We have stated
that, prior to implementing severity-adjusted DRGs, we
would need specific legislative authority to offset any
significant anticipated increase in payments attributable to
changes in coding practices caused by significant changes to
the DRG classification system.”). Congress responded by
enacting § 1395ww(d)(3)(A)(vi). See Consolidated
Appropriations Act, 2001, Pub. L. No. 106-554, app. F, tit.
III, § 301(e)(1), 114 Stat. 2763, 2763A493; see also Changes
to the Hospital Inpatient Prospective Payment Systems, 66
Fed. Reg. at 39,862. This sequence of events gives support to
the idea that Congress intended to clarify and complement the
Secretary’s existing authority—i.e., to “make assurance
double sure,” see Shook, 132 F.3d at 782 (internal quotation
marks omitted)—not to extinguish or eliminate it. Confronted
by two plausible readings of the statute, we cannot declare
Congress’ intent unambiguous. See Am. Petroleum Inst. v.
U.S. EPA, 906 F.2d 729, 740 (D.C. Cir. 1990) (per curiam).
10
Section 7(b)(1) of the TMA gives us little pause. As the
Hospitals point out, the provision employs more forceful
language than what we see in § 1395ww(d)(3)(A)(vi): “the
Secretary shall . . . make an appropriate adjustment.” In their
view, the use of such mandatory language—paired with the
non obstante clause prefacing it—demonstrates Congress’
unambiguous intent to direct the Secretary to adjust only the
standardized amount. These textual aids, however, do not
sufficiently dispel the provision’s ambiguity. We cannot say
the use of the word “shall” makes much of a difference, for
the broad grant of authority enshrined in § 1395ww(d)(5)(I)(i)
also employs the same word. As with
§ 1395ww(d)(3)(A)(vi), we are thus left with two equally
plausible explanations: (1) a conflictive one, rendering the
provisions mutually exclusive congressional directives; and
(2) a harmonious one, reading the statutory authorizations as
overlapping. The dizzying array of other canons that could
shift the analysis one way or another—e.g., the treatment of
the non obstante clause, see Cisneros v. Alpine Ridge Grp.,
508 U.S. 10, 18 (1993), or the presumption against implied
repeals, see Branch v. Smith, 538 U.S. 254, 273 (2003),
militates against finding unambiguous congressional intent
here.
B
The hospitals next turn to the “basic principle of statutory
construction that a specific statute . . . controls over a general
provision . . . particularly when the two are interrelated and
closely positioned.” HCSC-Laundry v. United States, 450
U.S. 1, 6 (1981) (citing Bulova Watch Co. v. United States,
365 U.S. 753, 761 (1961)). The canon is impotent, however,
unless the compared statutes are “irreconcilably conflicting.”
See Detweiler v. Pena, 38 F.3d 591, 596 (D.C. Cir. 1994)
(citing Watt v. Alaska, 451 U.S. 259, 266 (1981)). Absent
11
clearly expressed congressional intent to the contrary, it is our
duty to harmonize the provisions and render each effective.
See Morton v. Mancari, 417 U.S. 535, 551 (1974).
As explained above, § 1395ww(d)(3)(A)(vi) and section
7(b)(1) of the TMA can be reasonably construed as grants of
authority that complement and overlap with
§ 1395ww(d)(5)(I)(i). Put differently, it is not unreasonable
to say § 1395ww(d)(5)(I)(i) operates to the extent that
§ 1395ww(d)(3)(A)(vi) and section 7(b)(1) of the TMA are
silent. The two provisions say nothing about adjusting the
hospital-specific rate; therefore, the broad grant of authority
(and the Secretary’s use thereof) fills a space that the specific
provisions do not occupy. Such an arrangement does not run
afoul of the general/specific canon. See United States v.
Chase, 135 U.S. 255, 260 (1890) (“It is an old and familiar
rule that where there is, in the same statute, a particular
enactment, and also a general one, which, in its most
comprehensive sense, would include what is embraced in the
former, the particular enactment must be operative, and the
general enactment must be taken to affect only such cases
within its general language as are not within the provisions of
the particular enactment.” (citations and internal quotation
marks omitted)).
Perhaps the Hospitals’ argument is better characterized as
one concerning superfluity. See Amoco Prod. Co. v. Watson,
410 F.3d 722, 733 (D.C. Cir. 2005) (“It is a familiar canon of
statutory construction that, ‘if possible,’ we are to construe a
statute so as to give effect to ‘every clause and word.’”
(quoting United States v. Menasche, 348 U.S. 528, 538–39
(1955))). Their reliance on the Supreme Court’s decision in
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S.
Ct. 2065 (2012), confirms this. See id. at 2071 (“[T]he canon
has full application . . . [when] a general authorization and a
12
more limited, specific authorization exist side-by-side. There
the canon avoids not contradiction but the superfluity of a
specific provision that is swallowed by the general one,
‘violat[ing] the cardinal rule that, if possible, effect shall be
given to every clause and part of the statute.’” (quoting D.
Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932)
(alteration in original))). If § 1395ww(d)(5)(I)(i)’s
prescription of authority is as broad as the Secretary says it is,
they argue, parts of the statutory scheme will become
meaningless excess and congressional directives will either be
ignored or fulfilled by unintended means.
The surplusage canon is neither inviolable nor
insurmountable. See Lamie v. U.S. Tr., 540 U.S. 526, 536
(2004). This is particularly true when agency authority is at
stake. See DeNaples v. Office of Comptroller of Currency,
706 F.3d 481, 487 (D.C. Cir. 2013) (“That there is overlap
among the various enforcement provisions is not surprising. . .
. Congress could reasonably hand the agencies a palette
sufficiently sophisticated to capture the full spectrum of
enforcement possibility.” (citing RadLAX, 132 S. Ct. at
2072)).
The canon is particularly unhelpful when both
interpretive outcomes lead to some sort of surplusage—either
§ 1395ww(d)(3)(vi)(A) and section 7(b)(1) of the TMA must
give way to the broad grant of authority in
§ 1395ww(d)(5)(I)(i), or the last must be declared a nullity.
While it is possible to give the first two provisions full effect
without gutting § 1395ww(d)(5)(I)(i) in its entirety, we would
need to engage in a statutory rewrite to do so—e.g., insert the
word “only” here and there, insert a limiting clause to the
Secretary’s otherwise broad grant of authority, etc. This is
not our role, see Pub. Citizen, 533 F.3d at 816–17 (declining
to “add[] words that are not in the statute that the legislature
13
enacted” (citing United States v. Monsanto, 491 U.S. 600, 611
(1989))), and we note the need for such manipulation creates
strong doubts about whether the Hospitals’ interpretation is
correct, let alone unambiguously clear.
We cannot divine the precise reasons for the manner of
Congress’ enactments. Perhaps, to build on the Bard’s turn of
phrase, the legislature sought “to make assurance triple sure.”
Despite the potential for statutory redundancy, Congress may
have decided to clarify—not once, but twice—what the
Secretary was permitted to do, thereby handing her “a palette
sufficiently sophisticated to capture the full spectrum of . . .
possibility.” See DeNaples, 706 F.3d at 487. At the very
least, we remain unconvinced the statutory scheme is
unambiguous in evincing Congress’ intent.
C
Finally, the Hospitals point to the American Taxpayer
Relief Act of 2012, which states “the Secretary of Health and
Human Services shall not have authority to fully recoup past
overpayments related to documentation and coding changes
from fiscal years 2008 and 2009.” Pub. L. No. 112-240,
§ 631(a)(2), 126 Stat. 2313, 2353 (2013). Acknowledging
that their argument with respect to the Act is legally futile, the
Hospitals instead cite it in an appeal to sound policy and
judicial prudence. It would make “little sense,” they argue,
for Congress to constrain the Secretary’s authority with
respect to recoupment adjustments, while leaving untouched
her authority to make prospective adjustments. See Reply Br.
at 17–18.
We need not dwell on this point too long, as “[s]uch
policy arguments are more properly addressed to legislators or
administrators, not to judges.” See Chevron, 467 U.S. at 864.
14
And in any event, the Secretary offers a plausible explanation:
as there was nothing left to recoup with respect to FY 2008
and FY 2009, Congress decided to close that particular tap.
See Hospital Inpatient Prospective Payment Systems for
Acute Care Hospitals and the Long-Term Care Hospital
Prospective Payment System and Fiscal Year 2013 Rates, 77
Fed. Reg. 53,258, 53,276 (Aug. 31, 2012) (“Because these
adjustments, in effect, balanced out, there was no year-to-year
change in the standardized amount due to this recoupment
adjustment for FY 2012. . . . [A]ll overpayments made in FY
2008 and FY 2009 have been fully recaptured with
appropriate interest, and the standardized amount has been
returned to the appropriate baseline.”).
D
The only certainty that we can discern from the statutory
scheme is that it is unclear. We must therefore turn to step
two of the Chevron inquiry: the reasonableness of the
Secretary’s interpretation. The Secretary determined there
was an artificial increase unrelated to any actual change in the
severity of illnesses treated. She therefore made a downward
adjustment to the rate paid to rural and sole community
hospitals in order to ameliorate the increasing rate paid to all
hospitals due to the revamping of the diagnosis coding
system. In so doing, the Secretary reasonably exercised her
authority under § 1395ww(d)(5)(I)(i) to provide “for such
other exceptions and adjustments to [IPPS] payment amounts
. . . as the Secretary deems appropriate.”
This case ultimately concerns the Secretary’s ability to
combat artificial increases in payment amounts, i.e., to
minimize the hospitals’ receipt of funds for expenses they
have not incurred. See Changes to the Hospital Outpatient
Prospective Payment System and CY 2008 Payment Rates, 72
15
Fed. Reg. at 47,178. In attempting to preserve this financial
windfall, the Appellants argue for a statutory interpretation
that severely cabins the Secretary’s ability to rectify a difficult
and legitimate problem. We do not think this is a reasonable
approach, particularly as the Appellants’ gain comes at every
other participating hospital’s loss. However much Congress
sought to protect hospitals serving underserved
communities—hospitals that are already protected under
special formulae—we cannot say such a cumulative benefit
was unquestionably intended by the legislature.
III
The Hospitals contend our inquiry ends at the first
Chevron step. Our analysis suggests otherwise. We agree
with the district court’s conclusion that the statutory scheme
was ambiguous and unclear. Its decision, therefore, is
Affirmed.