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McCreary, Maurice v. Offner, Paul

Court: Court of Appeals for the D.C. Circuit
Date filed: 1999-04-13
Citations: 172 F.3d 76, 335 U.S. App. D.C. 258
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25 Citing Cases
Combined Opinion
                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


            Argued December 8, 1998       Decided April 13, 1999 


                                 No. 98-5155


                       Maurice McCreary, M.D., et al., 

                                  Appellants


                                      v.


              Paul Offner, Commissioner of Health Care Finance 

          of the District of Columbia Department of Human Services, 

                        and United States of America, 

                                  Appellees


                Appeal from the United States District Court 

                        for the District of Columbia 

                               (No. 97cv01524)


     James A. Barker, Jr. argued the cause for appellants.  
With him on the briefs was Allen V. Farber.

     Alisa B. Klein, Attorney, U.S. Department of Justice, 
argued the cause for appellees.  With her on the brief were 
Frank W. Hunger, Assistant Attorney General, Wilma A. 



Lewis, U.S. Attorney, and Barbara C. Biddle, Attorney, U.S. 
Department of Justice.

     John M. Ferren, Corporation Counsel, Charles L. Reischel, 
Deputy Corporation Counsel, and Lutz Alexander Prager, 
Assistant Deputy Corporation Counsel, were on the brief for 
appellee Paul Offner.

     Before:  Wald, Tatel and Garland, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Tatel.

     Tatel, Circuit Judge:  Under Medicaid's "buy-in" program, 
states must use Medicaid funds to enroll certain needy, 
Medicare-eligible individuals in Medicare's Part B supplemen-
tal insurance program.  In this case, we must determine 
whether the buy-in program requires states to reimburse 
Medicare providers the entire twenty percent copayment that 
patients normally pay for a particular service under Part B, 
or whether, as the United States Department of Health and 
Human Services has long permitted, states may limit reim-
bursement to the almost always lower Medicaid rate for the 
same service.  Relying on HHS policy, the District of Colum-
bia began capping copayment reimbursement at Medicaid 
rates in 1990.  Appellants, a group of District of Columbia 
doctors, challenge the District's policy, arguing that until 
Congress amended the buy-in statutes in 1997, the law re-
quired the District to reimburse them at Medicare rates.  
Finding the pre-1997 statutes ambiguous as to state copay-
ment reimbursement obligations, and finding HHS's interpre-
tation reasonable, we affirm the district court's grant of 
summary judgment for the District.

                                      I


     Enacted in 1965, Medicare finances medical procedures for 
people over 65 and people with disabilities.  See 42 U.S.C. 
ss 1395-1395ccc (1994).  Medicare has two parts, Part A and 
Part B.  Part A provides reimbursement for inpatient hospi-
tal care and related post-hospital, home health, and hospice 
care.  See id. ss 1395c to 1395i-4.  Enrollment in Part A is 
automatic.  Part B is voluntary.  It provides supplemental 


insurance for hospital out-patient services, physician services, 
and other medical services not covered under Part A.  See id. 
ss 1395j to 1395w-4.  Part B imposes cost-sharing obli-
gations on people who choose to participate.  These include 
an annual deductible, monthly premiums, and--of particular 
relevance to this case--copayments.  Copayments consist of 
twenty percent of the "reasonable charge" for the service 
rendered, an amount determined annually by HHS.  See id. 
s 1395l(a).  Medicare directly reimburses Part B providers 
for the remaining eighty percent.  See id.

     Also enacted in 1965, Medicaid, a cooperative federal-state 
program, finances medical care for the poor, regardless of 
age.  See 42 U.S.C. ss 1396-1396v (1994).  Participating 
states must establish financial eligibility criteria, identify 
covered medical services, develop rate schedules, and submit 
their plans to HHS for approval.  See id. ss 1396a(a), 
1396a(b).  HHS approval entitles a state to substantial feder-
al funding, ranging from fifty percent to eighty-three percent 
of the cost of medical services provided under the plan.  See 
id. s 1396d(b).  Doctors and other health care providers are 
not required to service Medicaid patients, but if they do they 
must accept reimbursement from the state at its Medicaid 
rate as payment in full;  they may not demand additional 
payment from patients.  See id. ss 1320a-7b(d), 1396o.  
State Medicaid rates for any given service are almost always 
lower than the "reasonable charge" for the same service 
under Medicare Part B. Indeed, Medicaid rates are often 
even lower than the eighty percent of the reasonable charge 
that the federal government reimburses Medicare providers.

     Medicare and Medicaid intersect with respect to the elderly 
poor--so-called "dual eligibles."  While these people are eligi-
ble to purchase supplemental medical insurance through 
Medicare Part B, many cannot afford Part B's premiums, 
deductibles, and copayments.  Medicaid has therefore long 
allowed states to use Medicaid dollars to enroll dual eligibles 
in Medicare Part B by paying their cost-sharing obligations.  
See Pub. L. No. 89-97, s 121(a), 79 Stat. 286, 346 (1965) 
(codified at 42 U.S.C. s 1396a(a)(15)) (repealed 1988).  Be-
cause the federal government heavily subsidizes Medicaid, 



this "buy-in" program enables states to shift a large portion 
of the cost of caring for the elderly poor to the federal 
treasury.

     In 1986, Congress expanded the buy-in program beyond 
dual eligibles to include a newly created category of "qualified 
medicare beneficiaries" ("QMBs"):  elderly people not quite 
poor enough to qualify for Medicaid but who nonetheless met 
certain neediness criteria.  See Pub. L. No. 99-509, s 9403, 
100 Stat. 1874, 2053-55 (1986) (codified at 42 U.S.C. 
ss 1396a(a)(10)(E), 1396d(p)(1) (1994)).  Initially optional, the 
QMB buy-in program became mandatory in 1988.  See Pub. 
L. No. 100-360, s 301, 102 Stat. 683, 748 (1988) (deleting "at 
the option of a State" from 42 U.S.C. s 1396a(a)(10)(E)).  
Also in 1988, Congress redefined the term "QMB" to include 
dual eligibles.  See Pub. L. No. 100-485, s 608(d), 102 Stat. 
2343, 2416 (1988).

     This appeal presents the following issue:  Are Medicare 
providers performing Part B services to QMBs entitled to 
state reimbursement for the entire twenty percent copayment 
that a non-QMB Medicare patient would normally pay, or 
may states limit reimbursement such that providers receive 
no more than the state's Medicaid rate for the same service?  
For example, suppose that the reasonable charge for a given 
Part B service is $100, but a state's Medicaid rate for the 
same service is only $90.  If a Medicare doctor performs that 
service, the federal government reimburses the doctor $80, 
whether or not the patient is a QMB.  If the patient is a 
QMB, does the buy-in scheme require the state to reimburse 
the doctor for the patient's entire $20 Medicare Part B 
copayment?  Or may the state give the doctor only $10 so 
that total reimbursement, including the federal government's 
$80, equals $90, the Medicaid rate?  If the Medicaid rate for 
the particular service is $70, may the state refuse to reim-
burse the doctor at all because the $80 provided by the 
federal government already exceeds the Medicaid rate?  See 
Paramount Health Sys., Inc. v. Wright, 138 F.3d 706, 708 
(7th Cir. 1998) (using this example).



     Four statutory provisions added to the buy-in scheme in 
1986 frame this issue.  Read alone, two suggest that states 
must use Medicaid funds to reimburse Medicare providers 
performing Part B services to QMBs for the full twenty 
percent copayment ($20 in the above example) for which non-
QMB Medicare patients would be responsible.  Under 42 
U.S.C. s 1396a(a)(10)(E)(i), a state Medicaid plan "must" 
provide for "making medical assistance available for medicare 
cost-sharing ... for qualified medicare beneficiaries."  Sec-
tion 1396d(p)(3)(D) in turn defines "medicare cost-sharing" to 
include Medicare premiums, deductibles, and "[t]he difference 
between the [80 percent of the reasonable charge that the 
federal government reimburses providers under Part B] and 
the amount that would be paid ... if any reference to '80 
percent' ... were deemed a reference to '100 percent.' "  
Section 1396a(a)(10)(E)(i)'s mandatory language coupled with 
section 1396d(p)(3)(D)'s reference to specific percentages sug-
gests that states must use buy-in funds to reimburse provid-
ers for the entire twenty percent Part B copayment.

     The other two provisions enacted in 1986 suggest a differ-
ent interpretation.  Section 1396a(a)(VIII) provides that 
"medical assistance made available to [QMBs] ... shall be 
limited to medical assistance for medicare cost-sharing ..., 
subject to the provisions of [section 1396a(n)]." Before its 
amendment in 1997, section 1396a(n), entitled "Payment 
amounts," in turn provided:

          In the case of [Medicaid funds provided] for medicare 
     cost-sharing respecting the furnishing of a service or 
     item to a qualified medicare beneficiary, the State plan 
     may provide payment in an amount ... that results in a 
     sum of such payment amount and any amount of pay-
     ment made [by the federal government under Medicare 
     Part B for] the service or item exceeding the amount 
     that is otherwise payable under the State [Medicaid] plan 
     for the item or service for eligible individuals who are not 
     qualified medicare beneficiaries.

Id. s 1396a(n) (amended 1997) (emphasis added).  Section 
1396a(n)'s use of the word "may" rather than "shall" suggests 



that states are permitted, not obligated, to reimburse Part B 
providers above the Medicaid rate--$10 if as in the above 
example the Medicaid rate were $90, or zero if the Medicaid 
rate were $80 or less.

     Even before the 1986 enactment of these four QMB provi-
sions, HHS had long taken the position that the buy-in 
scheme required states to reimburse providers for Part B 
copayments only in an amount equal to the difference, if any, 
between the Medicaid payment and the eighty percent of the 
Medicare Part B charge that the federal government pays.  
See Policy Information Memorandum from Director, Bureau 
of Program Policy, Department of Health and Human Ser-
vices, to Associate Regional Administrators (Sept. 29, 1981) 
("California's payment of amounts only up to its standard 
maximum allowable rate under its [Medicaid] program is 
acceptable.");  Policy Information Memorandum No. 6 from 
Associate Commissioner for Program Coordination, Depart-
ment of Health, Education and Welfare, to Health Services 
Administration Regional Staff (Mar. 4, 1971) ("[T]he [state] 
agency is not necessarily obligated to pay the full amount of 
the deductibles and co-insurance costs according to the rates 
established under [Medicare], but only that amount which will 
satisfy the requirement for payment in full according to the 
[Medicaid] method of payment.").  HHS reiterated this policy 
following the 1986 amendments to the buy-in scheme.  See 
Dep't of Health & Human Svcs., State Medicaid Manual 
s 3490.14 (1991).

     In 1990, the District of Columbia (a state for Medicaid 
purposes) amended its Medicaid program to limit reimburse-
ment for QMB Part B copayments to the Medicaid rate.  See 
37 D.C. Reg. 5593 (1990).  HHS approved the District's plan 
in 1991.  The District implemented its plan for more than six 
years without challenge.

     In 1997, a coalition of D.C. doctors and the Medical Society 
of the District of Columbia sued the city in the Superior 
Court for the District of Columbia, claiming that the buy-in 
statutes required states to pay QMB Part B copayments in 
full.  Alleging breach of contract, unjust enrichment, and 


promissory estoppel, the doctors sought retroactive reim-
bursement.  The doctors also sued the District for injunctive 
relief in the United States District Court for the District of 
Columbia.  The city removed the first suit to federal court, 
where the two cases were consolidated.

     One month later, Congress enacted the Balanced Budget 
Act of 1997, Pub. L. No. 105-33, 111 Stat. 251 ("Budget Act").  
Section 4714(a) of the Budget Act, entitled "Clarification 
Regarding State Liability for Medicare Cost-Sharing," ex-
pressly authorized states to limit Medicare cost-sharing pay-
ments for QMBs based on Medicaid rates.  See id. s 4714(a), 
111 Stat. at 509-10.  Section 4714(c) applied this putative 
"clarification" retroactively to any pending lawsuit seeking 
reimbursement from states under the buy-in program.  See 
id. s 4714(c), 111 Stat. at 510.  Recognizing the prospective 
validity of section 4714(a), the doctors abandoned their re-
quest for injunctive relief.  Instead, they amended their 
complaint to challenge the constitutionality of section 
4714(c)'s retroactivity provision, claiming that it violates the 
Takings and Due Process Clauses of the Fifth Amendment as 
well as principles of separation of powers.  The United States 
intervened to defend the constitutionality of the retroactivity 
provision.

     The district court upheld section 4714(c), concluding:

     [O]ne thing is clear:  the law regarding state liability to 
     pay for the health services provided to QMBs has never 
     been crystal clear.  Section 4714 has certainly provided 
     clarification where it was needed.  For this reason, the 
     Court concludes that applying section 4714 retroactively, 
     as Congress directed, is not impermissible under the 
     Constitution.

McCreary v. Offner, 1 F. Supp. 2d 32, 37 (D.D.C. 1998).  
Because section 4714's clarification of the buy-in scheme 
undermined the theory of the doctors' breach of contract 
action--that pre-1997 law required reimbursement at Medi-
care rates--the district court granted summary judgment for 
the District.  See id.  The doctors appeal.  Our review is de 



novo.  See Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 
491-92 (D.C. Cir. 1998).

                                      II


     According to the doctors, pre-1997 law clearly required 
states to reimburse them for all Part B cost-sharing obli-
gations incurred by QMBs.  The Budget Act, they argue, 
could not constitutionally change that requirement retroac-
tively.  The United States (supported by the District) re-
sponds that:  (1) pre-1997 law was ambiguous regarding state 
cost-sharing obligations, and under Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 
we must defer to HHS's reasonable interpretation of that 
scheme;  (2) even if Chevron deference to HHS's interpreta-
tion of the pre-1997 scheme is inappropriate, under Loving v. 
United States, 517 U.S. 748, 770 (1996) ("subsequent legisla-
tion declaring the intent of an earlier statute is entitled to 
great weight in statutory construction") (internal quotation 
omitted), we should give deference to Congress's 1997 inter-
pretation of the prior scheme, as did the district court;  and 
(3) if the Budget Act did change the buy-in scheme retroac-
tively, then the doctors' constitutional arguments fail on the 
merits.  Mindful of our obligation to avoid constitutional 
questions when possible, see Ashwander v. TVA, 297 U.S. 288, 
341 (1936) (Brandeis, J., concurring), we begin by addressing 
the government's Chevron argument.  After all, if Chevron 
deference to HHS's interpretation of pre-1997 law is appro-
priate, we must sustain the District's reimbursement cap 
without regard to the Budget Act.

     The doctors insist--as they must to avoid Chevron defer-
ence--that before 1997 sections 1396a(a)(10)(e) and 
1396d(p)(3)(D) unambiguously required states to reimburse 
providers in full for copayments for Part B services per-
formed on QMBs.  They argue that the permissive "may" 
language in section 1396a(n) comports with this reading, 
interpreting that section simply to authorize states to deviate 
from their otherwise rigid Medicaid payment schedules.  Ac-
cording to the doctors, section 1396a(n) did nothing more than 
provide an exception to the general rule that states must 



never reimburse Medicaid providers in excess of HHS-
approved schedules.  Section 1396a(n) used the permissive 
"may" instead of the mandatory "shall," the doctors contend, 
because state Medicaid rates occasionally exceed the Medi-
care rates for the same service.

     The doctors' interpretation of the buy-in statutes is certain-
ly plausible.  But as we read the pre-1997 statutes and their 
legislative history, we think Congress has not so "unambigu-
ously expressed" its intent as to make the doctors' interpreta-
tion mandatory.  Chevron, 467 U.S. at 843;  see also Air 
Transp. Ass'n of America v. FAA, 1999 WL 110689, at *3 
(D.C. Cir. Mar. 5 1999) ("Although the inference petitioner 
would draw as to the statute's meaning is not by any means 
unreasonable, it is also not inevitable.").

     To begin with, if the buy-in statutes really spoke as clearly 
as the doctors contend, section 1396a(n) would have had no 
need to provide separately that states could deviate from 
their otherwise mandatory Medicaid schedules.  Addressing 
the same issue, the Seventh Circuit put it this way:  "[I]f ... 
[sections 1396a(a)(10)(e) and 1396d(p)(3)(D) of] the statute 
clearly entitle[ ] [providers] to reimbursement at Medicare 
rates (if it is not clear, Chevron is back in play), the state 
could hardly be penalized for such reimbursement.  That 
would be penalizing it for complying with the statute."  Para-
mount, Inc., 138 F.3d at 709;  see also Rehabilitation Ass'n v. 
Kozlowski, 42 F.3d 1444, 1469 (4th Cir. 1994) (Niemeyer, J., 
dissenting) ("It is utterly implausible, I submit, to believe that 
Congress would create a new section in the [Medicaid] Act 
solely to acknowledge that it is permissible for states to do 
what Congress requires them to do in other sections.").  The 
United States makes this argument, but the doctors nowhere 
respond.

     The government also points out that the very provision 
from which the doctors derive a state obligation to pay cost-
sharing in full--section 1396a(a)(10)(E)(i)--requires that state 
plans make cost-sharing available for QMBs.  Because states 
must detail their QMB cost-sharing policies in their Medicaid 
regulations before submitting those regulations to HHS for 



approval, the argument goes, states' cost-sharing obligations 
could never cause them to run afoul of their own regulations.  
This argument makes sense.  Again, the doctors nowhere 
respond.

     The doctors' interpretation of section 1396a(n) suffers from 
another problem.  During the almost twenty years prior to its 
enactment, states often reimbursed providers for Medicare 
cost-sharing in excess of Medicaid rates. Why then did Con-
gress need to enact section 1396a(n) to authorize such reim-
bursement?  See Paramount, 138 F.3d at 709 (making this 
point).  The doctors point out that during the twenty years 
prior to the enactment of section 1396a(n) states had not used 
Medicaid funds to pay cost-sharing for "pure QMBs" (QMBs 
not otherwise eligible for Medicaid) because the QMB pro-
gram did not even exist during that period.  True as that may 
be, the doctors cannot dispute that by 1986 states had often 
exceeded their own Medicaid rates with respect to dual 
eligibles.

     The doctors claim to find support for their position in the 
House Report accompanying the 1986 enactment of the QMB 
program, which stated that "the Medicaid program would pay 
the Part B deductible and the beneficiary's 20 percent coin-
surance."  H.R. Rep. No. 99-727, at 106 (1986), reprinted in 
1986 U.S.C.C.A.N. 3607, 3696.  But because this language did 
not speak to whether states must make the entire copayment 
even in excess of Medicaid rates, it helps the doctors little.  
Moreover, subsequent legislative history squarely conflicts 
with the doctors' interpretation of the buy-in program.  The 
House Report accompanying the 1988 amendments said:

     It is the understanding of the Committee that, with 
     respect to dual Medicaid-Medicare eligibles, some States 
     pay the coinsurance even if the amount that Medicare 
     pays for the service is higher than the State Medicaid 
     payment rate, while others do not.  Under the Commit-
     tee bill, States would not be required to pay the Medi-
     care coinsurance in the case of a bill where the amount 
     reimbursed by Medicare--i.e., 80 percent of the reason-



     able charge--exceeds the amount Medicaid would pay for 
     the same item or service.

H.R. Rep. No. 100-105(II), at 61 (1987), reprinted in 1988 
U.S.C.C.A.N. 857, 884;  see also H.R. Rep. No. 101-247, at 364 
(1989), reprinted in 1989 U.S.C.C.A.N. 1906, 2090 ("The 
Medicaid programs typically pay the Medicare coinsurance 
only to the extent that their payment, plus the Medicare 
payment, does not exceed what the Medicaid program would 
pay for the service in question....  The Committee bill ... 
does not change the current policy regarding the amount 
which a Medicaid program must reimburse on such claims.").  
Although post-enactment legislative history may or may not 
be a valid tool for ascertaining congressional intent, see 
United States v. Carlton, 512 U.S. 26, 39 (1994) (Scalia, J., 
concurring) (referring to "post-legislation legislative history" 
as an "oxymoron"), our task here is not to divine conclusively 
the meaning of section 1396a(n), but rather to determine 
whether it is reasonably susceptible to more than one mean-
ing.  With respect to this question, post-enactment legislative 
commentary offering a plausible interpretation is certainly 
relevant, much like plausible interpretations from litigants, 
other courts, law review articles, or any other source would 
be.  The fact that the 1988 and 1989 House Reports inter-
preted section 1396a(n) differently from the interpretation 
favored by the doctors suggests that the statute is far from 
unambiguous.

     We have a similar reaction to four pre-Budget Act circuit 
court decisions that found the buy-in scheme unambiguous.  
See Haynes Ambulance Serv., Inc. v. Alabama, 36 F.3d 1074, 
1077 (11th Cir. 1994) (per curiam);  Pennsylvania Med. Soc'y 
v. Snider, 29 F.3d 886, 891-902 (3d Cir. 1994);  Rehabilitation 
Ass'n, 42 F.3d at 1451-58;  New York City Health & Hospi-
tals Corp. v. Perales, 954 F.2d 854, 858-59 (2d Cir. 1992).  
Although all four circuits found the statutes sufficiently clear 
to preclude Chevron deference, they were not unanimous 
about the meaning of the supposedly unambiguous scheme.  
The Second, Third, and Eleventh Circuits essentially adopted 
the interpretation the doctors urge in this case.  The Fourth 
Circuit expressly rejected this reading, as well as the position 



HHS took there (and takes here).  Instead, it held that 
section 1396a(n) allowed states to pay more cost-sharing for 
pure QMBs than for dual eligibles.  See Rehabilitation Ass'n, 
42 F.3d at 1454-55.  The plausibility of these competing 
interpretations simply confirms our view that the buy-in 
scheme is ambiguous.  See Smiley v. Citibank, 517 U.S. 735, 
739 (1996) ("In light of the two dissents from the opinion of 
the Supreme Court of California, and in light of the opinion of 
the Supreme Court of New Jersey creating the conflict that 
has prompted us to take this case, it would be difficult indeed 
to contend that the [statute] is unambiguous with regard to 
the point at issue here.") (citation and footnote omitted).

                                     III


     Proceeding to the second step of the Chevron inquiry, we 
ask whether HHS has reasonably interpreted the buy-in 
statutes.  The United States's position is simple:  Because the 
word "may" in section 1396a(n) is permissive, not mandatory, 
states are allowed to but need not exceed their Medicaid 
rates.  To us, this seems eminently reasonable--"may" means 
may.

     The doctors make only one argument challenging the rea-
sonableness of HHS's interpretation.  Relying on INS v. 
Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987), which stated 
that "[a]n agency interpretation of a relevant provision which 
conflicts with the agency's earlier interpretation is entitled to 
considerably less deference than a consistently held agency 
view," the doctors claim that HHS has not consistently inter-
preted the buy-in statutes.  In support, they cite the follow-
ing commentary from a 1983 HHS rulemaking:

          Since 1971, HHS policy has been to require State 
     agencies that have a "buy-in" agreement to pay, in 
     addition to the Part B premium, the Part B coinsurance 
     and deductible amount for services provided to beneficia-
     ries under Part B, even if the services are not routinely 
     provided under the Medicaid State Plan.

48 Fed. Reg. 10,378, 10,379 (1983) (notice of proposed rule-
making).  That rulemaking has no relevance to the question 


presented here, however, because there HHS merely conclud-
ed that the buy-in program does not require states to pay 
Part B cost-sharing for services not covered by their Medic-
aid plans;  the rulemaking did not address whether a state 
must pay QMBs' full copayments for services that are cov-
ered under its Medicaid plan.  The most relevant commen-
tary in the rulemaking, moreover, actually comports with the 
position HHS takes in this case:  "[I]f a State limits the 
amount, duration or scope of Medicaid services covered in the 
State plan, then the State may similarly limit payment of 
Medicare Part B cost sharing amounts on those same services 
in accordance with its Medicaid service limitations."  52 Fed. 
Reg. 47,926, 47,928 (1987) (final rule).  Not only does this 
rulemaking suggest no agency inconsistency, but the doctors 
have failed to cite any other instances of alleged agency 
inconsistency in the twenty-eight years since HHS first artic-
ulated its copayment reimbursement policy.  Indeed, HHS 
appears to have approved the Medicaid plans of every state 
that has chosen to limit total copayment reimbursement to 
Medicaid rates.

     Because we conclude that HHS's interpretation of the buy-
in statutes is reasonable, we have no need to reach the 
doctors' constitutional challenge to the Budget Act.  The 
district court's grant of summary judgment for the District is 
affirmed.

     So ordered.