Gray Panthers Advocacy Committee v. Sullivan, 90-5306
| Citation | 936 F.2d 1284 |
| Decision Date | 12 September 1991 |
| Docket Number | No. 90-5306,90-5306 |
| Parties | , 60 USLW 2031, 34 Soc.Sec.Rep.Ser. 96, Medicare&Medicaid Gu 39,407 GRAY PANTHERS ADVOCACY COMMITTEE, et al., Appellants, v. Louis W. SULLIVAN, M.D., Secretary, Department of Health and Human Services, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 89-00605).
Toby Edelman, with whom Patricia Nemore was on the brief, Washington, D.C., for appellants.
Michael E. Robinson, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Barbara C. Biddle, Atty., Dept. of Justice, were on the brief, Washington, D.C., for appellee.
Before MIKVA, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
At issue in this appeal are regulations promulgated by the Health Care Financing Administration of the Department of Health and Human Services (HHS or the Department) governing the requirements that a nursing home must meet for its services to be covered under Medicare and Medicaid. The appellants, plaintiffs below, are nursing home residents and an organization that represents the interests of the low-income elderly. They claim that, in promulgating the challenged regulations, the appellee HHS Secretary failed to heed congressional direction that the new regulations be at least as stringent as those they supersede. They further assert that some of the regulations in question are invalid because the Secretary failed to follow the Administrative Procedure Act's notice-and-comment procedures before issuing them. Our review of the record compels us to reject the appellants' arguments and affirm the district court's holding that the regulations are valid and its grant of summary judgment to the defendants.
Federal regulation of the nursing home industry is accomplished primarily through the conditions that Congress imposes on nursing home facilities' receipt of funds under Medicare and Medicaid. 1 In order to receive federal moneys under either of these programs, a nursing home must qualify as a "skilled nursing facility." 42 U.S.C. Sec. 1395x(j) (Medicare); id. Sec. 1396a(a)(28) (Medicaid). The interplay between the regulatory and congressional definitions of this term forms the backdrop against which we decide this appeal.
On October 16, 1987, the Department issued a notice of proposed rulemaking (NPRM) containing substantial revisions to the regulations governing nursing home participation in Medicare and Medicaid. 52 Fed.Reg. 38582. After HHS's publication of the NPRM, but before the close of the comment period and before the publication of the final regulations, Congress passed the Omnibus Budget Reconciliation Act of 1987 (OBRA '87), Pub.L. No. 100-203, 101 Stat. 1330 (1987). In amending the Social Security Act, this statute extensively modified the criteria a nursing home facility must meet to participate in the Medicare and Medicaid programs. See id. Sec. 4201, 101 Stat. 1330-160 to 1330-175 () (Medicare); see also id. Sec. 4211, 101 Stat. 1330-182 to 1330-207 () (Medicaid). Of particular importance to this appeal, OBRA '87 required the Secretary to issue regulations governing nursing homes that "are adequate to protect the health, safety, welfare, and rights of residents." OBRA '87 Sec. 4201(a)(3), 101 Stat. at 1330-172 (codified at 42 U.S.C. Sec. 1395i-3(f)(1)); id. Sec. 4211(c), 101 Stat. at 1330-200 (codified at 42 U.S.C. Sec. 1396r(f)(1)).
Using the extensive new OBRA '87 requirements and the comments it had received in response to its 1987 NPRM, the Department published final nursing home regulations on February 2, 1989. 54 Fed.Reg. 5316. Where possible, the final regulations were designed to be consistent with both OBRA '87 and the comments to the 1987 NPRM; these regulations were to become effective on August 1, 1989. Id. at 5317. In some instances, OBRA '87 imposed new requirements. The Secretary determined that some of these new requirements were sufficiently detailed to be self-executing and they were implemented in new regulations that merely restated the language of the statute; these regulations were issued without further notice and comment. Id. For those portions of the statute imposing new requirements that were inconsistent with earlier law, the effective date of the regulations implementing them was postponed until October 1, 1990; otherwise, the regulations were to become effective on August 1, 1989. 2 Id. Finally, OBRA '87 imposed certain requirements that could neither be squared with the NPRM nor implemented by regulations that merely tracked the statutory language. In these cases, the Department stated it would later publish a proposed rule implementing the new requirements. Id. Those requirements are not at issue in this appeal.
The portions of HHS's regulations primarily at issue in this appeal are those governing nursing homes' provision of dietary and social services. See 42 C.F.R. Secs. 405.1125, 405.1130 (1989). On two occasions after the publication of the 1987 NPRM, Congress spoke on the requirements for nursing home participation in Medicare and Medicaid. The conference report to the Medicare Catastrophic Coverage Act of 1988, Pub.L. 100-360, stated:
It is the intent of the conferees that the Secretary ensure that [Medicare and Medicaid] requirements regarding consultation and supervision of social work services be at least as stringent as those in effect prior to the enactment of these changes.
The conferees also wish to clarify that it was the intent of [the Medicare and Medicaid amendments to OBRA '87] that the Secretary ensure that the requirements for dietary services be at least as stringent as those in effect prior to enactment of [OBRA '87].
H.R.CONF.REP. NO. 661, 100th Cong., 2d Sess. 269, reprinted in 1988 U.S.CODE CONG. & ADMIN.NEWS 803, 923, 1047 (emphasis added). 3 Later, in the Omnibus Budget Reconciliation Act of 1990 (OBRA '90), Congress directed that
Any regulations promulgated and applied by the Secretary of Health and Human Services after the date of the enactment of the Omnibus Budget Reconciliation Act of 1987 with respect to [social and dietary] services ... shall include requirements for providers of such services that are at least as strict as the requirements applicable to providers of such services prior to the enactment of the Omnibus Budget Reconciliation Act of 1987.
OBRA '90, Pub.L. 101-508, Sec. 4801(e)(17)(A), 104 Stat. 1388, 1388-218 (emphasis added).
As they did in the district court, the appellants assert that the dietary and social services regulations are invalid because they are not "at least as strict as" the regulations they replaced. They further contend that those portions of the regulations that merely restate the statutory requirements and that were issued without following the notice-and-comment procedures violate the Administrative Procedure Act (APA), 5 U.S.C. Secs. 551 et seq. The district court rejected both arguments and granted the defendants' summary judgment motion. It found that, in issuing the final rule, the Department adequately compared the stringency of the new regulations to that of the old ones. Gray Panthers Advocacy Comm. v. Sullivan, No. 89-0605, slip op. at 15-16 (D.D.C. Sept. 17, 1990). It also compared the new and the old dietary and social services regulations itself and concluded that "the new regulations are at least as stringent as existing requirements." Id. at 13; see also id. at 17-19. With respect to the plaintiffs' second challenge to the regulations, the district court held that neither OBRA '87 nor relevant legislative history imposed on HHS the duty to adhere to notice-and-comment procedures when issuing all of the challenged regulations. Id. at 22-26. Those portions of the regulations that merely restated requirements contained in OBRA '87, the court held, were not subject to the APA's notice-and-comment requirements. Id. at 28-31. This appeal followed.
In analyzing the plaintiffs' claim regarding the stringency of the new regulations, the district court looked to the conference report accompanying the Medicare Catastrophic Coverage Act of 1988 (MCCA '88) for the definition of a term included in OBRA '87. The MCCA '88 conference report purported to define OBRA '87's requirement that new nursing home regulations be "adequate" to protect the welfare of residents as meaning that they be "at least as stringent as" the regulations already in place. The district court treated this conference report as "an authoritative indication of the meaning that Congress has attached to the term 'adequate' in the provision of social and dietary services to nursing home residents." Slip Op. at 10. Even if a conference committee report could provide an "authoritative" indication of congressional intent with respect to contemporaneous legislation, we have serious doubts whether the MCCA '88 conference report can authoritatively define a term used in the earlier statute. 4 See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n. 13, 100 S.Ct. 2051, 2061 n. 13, 64 L.Ed.2d 766 (1980) (); Pierce v. Underwood, 487 U.S. 552, 566, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (...
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