Kong v. Scully

• Decision Date: 02 September 2003
• Docket Number: No. 02-15057.,02-15057.
• Citation: 341 F.3d 1132
• Parties: David KONG, Plaintiff-Appellant, v. Thomas SCULLY, in his official capacity as director of Center for Medicare and Medicaid Services; Tommy Thompson, in his official Capacity as Secretary of the United States Department of Health and Human Services, Defendants-Appellees, The First Church of Christ, Scientist, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.3d 1132

David KONG, Plaintiff-Appellant, v. Thomas SCULLY, in his official capacity as director of Center for Medicare and Medicaid Services;

Tommy Thompson, in his official Capacity as Secretary of the United States Department of Health and Human Services, Defendants-Appellees,

The First Church of Christ, Scientist, Defendant-Intervenor-Appellee.

No. 02-15057.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2003 — San Francisco, California.

Filed September 2, 2003.

Robert J. Bruno, Brunsville, Minnesota, for the plaintiff-appellant.

Lowell V. Sturgill, Jr., Department of Justice, Washington, D.C., for defendants-appellees Thomas Scully and Tommy Thompson.

Stephen M. Shapiro, Chicago, Illinois, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-00-04285-CRB.

Before: JOHN T. NOONAN, M. MARGARET McKEOWN, and JOHNNIE B. RAWLINSON, Circuit Judges.

Opinion by Judge NOONAN; Concurrence by Judge McKEOWN; Concurrence by Judge RAWLINSON

OPINION

NOONAN, Circuit Judge.

David Kong appeals the judgment of the district court upholding as constitutional on its face and as applied section 4454 of the Balanced Budget Act of 1997. This law effected amendments to 42 U.S.C. § 1320 and 42 U.S.C. § 1395 in order to permit payments under Medicare and Medicaid Acts for the nonmedical care of persons whose religious tenets lead them to reject medical services. The district court held that these amendments were not an establishment of religion. We affirm the district court.

THE AMENDED STATUTES

42 U.S.C. § 1320c-11, as amended by the Balanced Budget Act, reads:

Exemptions for religious nonmedical health care institutions

The provisions of this part shall not apply with respect to a religious nonmedical health care institution (as defined in section 1395x(ss)(1) of this title).

42 U.S.C. § 1395x(e), as amended in its definitions, defines "hospital" to include

a religious nonmedical health care institution (as defined in subsection (ss)(1) of this section), with respect to items and services ordinarily furnished by such institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations consistent with section 1395i-5 of this title.

42 U.S.C. § 1395x(y)(1), as amended, reads:

Extended care in religious nonmedical health care institutions

The term `skilled nursing facility' also includes a religious nonmedical health care institution (as defined in subsection (ss)(1) of this section), (except for purposes of subsection (a)(2) of this section) with respect to items and services ordinarily furnished by such an institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations consistent with section 1395i-5 of this title.

The cross-referenced section x(ss)(1) reads in relevant part as follows:

Religious nonmedical health care institution

(1) The term "religious nonmedical health care institution" means an institution that —

(A) is described in subsection (c)(3) of section 501 of The Internal Revenue Code of 1986 and is exempt from taxes under subsection (a) of such section;

(B) is lawfully operated under all applicable Federal, State, and local laws and regulations;

(C) provides only nonmedical nursing items and services exclusively to patients who choose to rely solely upon a religious method of healing and for whom the acceptance of medical health services would be inconsistent with their religious beliefs;

(D) provides such nonmedical items and services exclusively through nonmedical nursing personnel who are experienced in caring for the physical needs of such patients;

(E) provides such nonmedical items and services to inpatients on a 24-hour basis;

(F) on the basis of its religious beliefs, does not provide through its personnel or otherwise medical items and services (including any medical screening, examination, diagnosis, prognosis, treatment, or the administration of drugs) for its patients (G)(i) is not owned by, under common ownership with, or has an ownership interest in, a provider of medical treatment or services;

(ii) is not affiliated with —

(I) a provider of medical treatment or services, or

(II) an individual who has an ownership interest in a provider of medical treatment or services;

(H) has in effect a utilization review plan which —

(i) provides for the review of admissions to the institution, of the duration of stays therein, of cases of continuous extended duration, and of the items and services furnished by the institution,

(ii) requires that such reviews be made by an appropriate committee of the institution that includes the individuals responsible for overall administration and for supervision of nursing personnel at the institution,

(iii) provides that records be maintained of the meetings, decisions, and actions of such committee, and

(iv) meets such other requirements as the Secretary finds necessary to establish an effective utilization review plan;

(I) provides the Secretary with such information as the Secretary may require to implement section 1391i-5 of this title, including information relating to quality of care and coverage determinations; and

(J) meets such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.

(2) To the extent that the Secretary finds that the accreditation of an institution by a State, regional, or national agency or association provides reasonable assurances that any or all of the requirements of paragraph (1) are met or exceeded, the Secretary may treat such institution as meeting the condition or conditions with respect to which the Secretary made such finding.

(3)(A)(i) In administering this subsection and section 1395i-5 of this title, the Secretary shall not require any patient of a religious nonmedical health care institution to undergo medical screening, examination, diagnosis, prognosis, or treatment or to accept any other medical health care service, if such patient (or legal representative of the patient) objects thereto on religious grounds.

(ii) Clause (i) shall not be construed as preventing the Secretary from requiring under section 1395i-5(a)(2) of this title the provision of sufficient information regarding an individual's condition as a condition for receipt of benefits under part A of this subchapter for services provided in such an institution.

(B)(i) In administering this subsection and section 1395i-5 of this title, the Secretary shall not subject a religious nonmedical health care institution or its personnel to any medical supervision, regulation, or control, insofar as such supervision, regulation or control would be contrary to the religious beliefs observed by the institution or such personnel.

(ii) Clause (i) shall not be construed as preventing the Secretary from reviewing items and services billed by the institution to the extent the Secretary determines such review to be necessary to determine whether such items and services were not covered under part A of this subchapter, are excessive, or are fraudulent.

42 U.S.C. § 1395i-5, Conditions for coverage of religious nonmedical health care institutional services, as amended, reads in relevant part:

(a) In general Subject to subsections (c) and (d), payment under this part may be made for inpatient hospital services or post-hospital extended care services furnished an individual in a religious nonmedical health care institution only if —

(1) the individual has an election in effect for such benefits under subsection (b) of this section; and

(2) the individual has a condition such that the individual would qualify for benefits under this part for inpatient hospital services or extended care services, respectively, if the individual were an inpatient or resident in a hospital or skilled nursing facility that was not such an institution.

(b) Election

(1) In general

An individual may make an election under this subsection in a form and manner specified by the Secretary consistent with this subsection. Unless otherwise provided, such an election shall take effect immediately upon its execution. Such an election, once made, shall continue in effect until revoked.

(2) Form

The election form under this subsection shall include the following:

(A) A written statement, signed by the individual (or such individual's legal representative), that —

(i) the individual is conscientiously opposed to acceptance of nonexcepted medical treatment; and

(ii) the individual's acceptance of nonexcepted medical treatment would be inconsistent with the individual's sincere religious beliefs.

(B) A statement that the receipt of nonexcepted medical services shall constitute a revocation of the election and may limit further receipt of services described in subsection (a) of this section.

(3) Revocation

An election under this subsection by an individual may be revoked by voluntarily notifying the Secretary in writing of such revocation and shall be deemed to be revoked if the individual receives nonexcepted medical treatment for which reimbursement is made under this subchapter.

(4) Limitation on subsequent elections

Once an individual's election under this subsection has been made and revoked twice —

(A) the next election may not become effective until the date that is 1 year after the date of the most...