No real surprise here: in Southeast Arkansas Hospice, Inc. v. Burwell, No. 15-1946 (Mar. 10, 2016), the U.S. Court of Appeals held that the statutory cap on Medicare reimbursements for hospice care isn't a taking of the excess over a facility's actual costs, because the facility voluntarily opted-in to the program:
SEARK has not met its burden to prove the demands for repayment based on the statutory cap are a taking. First, the reimbursement cap allocates the government’s capacity to subsidize healthcare. See H.R. Rep. 98-333, at 1 (1983), reprinted in 1983 U.S.C.C.A.N. 1043, 1043-44 (“The intent of the cap was to ensure that payments for hospice care would not exceed what would have been expended by Medicare if the patient had been treated in a conventional setting.”). Second, SEARK presented no evidence to suggest the cap makes it impossible “to profitably engage in their business.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 485 (1987). See also Minnesota Ass’n of Health Care Facilities, Inc. v. Minnesota Dep’t of Public Welfare, 742 F.2d 442, 446 (8th Cir. 1984) (rejecting an argument that “business realities” prevent a nursing home from leaving the Medicaid program).Third, SEARK voluntarily chose to participate in the Medicare hospice program. “This voluntariness forecloses the possibility that the statute could result in an imposed taking of private property which would give rise to the constitutional right of just compensation. . . .” Minnesota Ass’n of Health Care Facilities, Inc., 742 F.2d at 446. Compare Ruckelshaus, 467 U.S. at 1007 (“[A]s long as Monsanto is aware of the conditions under which the data are submitted, and the conditions are rationally related to a legitimate Government interest, a voluntary submission of data by an applicant in exchange for the economic advantages of a registration can hardly be called a taking.”), with Horne v. Dep’t of Agriculture, 135 S. Ct. 2419, 2430 (2015) (“The taking here cannot reasonably be characterized as part of a similar voluntary exchange.”).
Slip op. at 3.
Southeast Arkansas Hospice, Inc. v. Burwell, No. 15-1946 (8th Cir. Mar. 10, 2016)
