United States Court of Appeals, District of Columbia Circuit
September 24, 2018
from the United States District Court for the District of
Columbia (No. 1:16-cv-00212)
Geoffrey M. Raux argued the cause for appellant. With him on
the briefs were Lori A. Rubin and Donald H. Romano.
C. Wright, Attorney, U.S. Department of Justice, argued the
cause for appellee. With her on the brief were Jessie K. Liu,
U.S. Attorney, Alisa B. Klein, Attorney, Robert P. Charrow,
General Counsel, U.S. Department of Health and Human
Services, Janice L. Hoffman, Associate General Counsel, Susan
Maxson Lyons, Deputy Associate General Counsel, and Jonathan
C. Brumer, Attorney.
Before: Millett and Katsas, Circuit Judges, and Silberman,
Senior Circuit Judge.
Medicare statute precludes judicial review of estimates used
to make certain payments to hospitals for treating low-income
patients. We must decide whether this preclusion provision
bars challenges to the methodology used to make the
Medicare, the federal government pays for health care for
elderly and disabled individuals. 42 U.S.C. § 1395
et seq. Hospitals receive increased payments if they
serve "a significantly disproportionate number of
low-income patients." Id. §
1395ww(d)(5)(F)(i)(I). These increases are known as "DSH
payments," which is shorthand for disproportionate share
hospital payments. Id. § 1395ww(r).
payment at issue here is the "additional payment"
described in paragraph (2) of section 1395ww(r), which is
made annually to each disproportionate share hospital. The
payment is the product of three statutory "factors"
estimated by the Secretary of Health and Human Services. The
third factor measures an individual hospital's share of
all nationwide uncompensated care. It is the quotient of two
(i) the amount of uncompensated care for such hospital for a
period selected by the Secretary (as estimated by the
Secretary, based on appropriate data (including, in the case
where the Secretary determines that alternative data is
available which is a better proxy for the costs of [DSHs] for
treating the uninsured, the use of such alternative data));
(ii) the aggregate amount of uncompensated care for all
[DSHs] that receive a payment under this subsection for such
period (as so estimated, based on such data).
42 U.S.C. § 1395ww(r)(2)(C).
precluded judicial review of the estimates of the three
statutory factors. Specifically, it provided that
"[t]here shall be no administrative or judicial review
under section 1395ff of this title, section 1395oo
of this title, or otherwise" of "[a]ny estimate of
the Secretary for purposes of determining the factors
described in paragraph (2)." 42 U.S.C. §
1395ww(r)(3)(A). Congress also precluded administrative and