1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) ASHTABULA COUNTY MEDICAL ) CENTER, et al., ) ) Plaintiffs, ) ) Civil Action No. 05
- cv - 2365 (RCL) v. ) ) KATHLEEN SEBELIUS , 1 United States Department of Health ) Secretary, ) and Human Services, ) ) Defendant. )

____________________________________ ) MEMORANDUM O PINION Before the Court is plaintiffs’ Motion [14] for Summary Judgment and defendant’ s Cross

- Mot ion [19] for Summary Judgment. Upon consideration of the motions, the record herein, and the applicable law, t he Court will DENY plaintiffs’ Motion for Summary Judgment and GRANT defendant’s Cross

- Motion for Summary J udgment for the reasons set forth below

. I. BACKGROUND Plaintiffs, five Medicare

- participating hospitals located in Ohio, seek additional Medicare payment for services furnished to Medicare beneficiaries. T hey challenge an interpretation of the Medicare statute by the Secretary of the Department o f Health and Human Services , contending that her interpretation conflicts with the statute’s plain and unambiguous language

.

1 This action was originally filed against Michael Leavitt in his official capacity as Secret ary of the Department of Health and Human Services. Kathleen Sebelius, Mr. Leavitt’s successor as Secretary, has been substituted here as defendant. See Fed. R. Civ. P

. 25(d).2 The Medicare statute provides that any hospital serving a disproportionate share of low

income patients

— known as a disproportionate share hospital (DSH)

— is reimbursed at higher

rate s , “apparently because the more low

- income patients a hospital treats, the more it costs on average to care for Medicare patients.” Adena Reg’l Med. Ctr. v. Leavitt , 527 F.3d 176, 178 (D.C. Cir. 2008). The statute thus requires the Secretary to count, among other things, patients who are “eligible for medical assistance under a State plan approved under [Title] XIX” of the Social Security Act ( i.e. , Medicaid), but who are “ not entitled to benefits under [Med icare].” 42 U.S.C. § 1395ww(d)(5)(F)(vi)(II). “Put simply, the more a hospital treats patients who are ‘eligible for medical assistance under a S t ate plan approved under [ Medicaid ],’ the more money it receives for each patient covered by Medicare .” Adena , 527 F.3d at 178 (quoting § 1395ww(d)(5)(F)(vi)(II)). The Ohio Hospital Care Assurance Program (HCAP) ensures that indigent patients who are not recipients under the Ohio Medicaid plan receive “basic, medically necessary hospital

level services” at no charg e. Ohio Rev. Code § 5112.17(B). The state of Ohio , however, does not reimburse hospitals for the cost of providing such mandatory charity care. Seeking to cover some of t heir HCAP expenses, plaintiffs assert that the Secretary should have included HCAP pat ients when calculating their DSH reimbursement s under the Medicare statute. The Secretary argues that s he has reasonably interpreted the statutory phrase “eligible for medical assistance under a State plan approved under [Title] XIX” to mean “eligible for Medicaid.” Because HC AP patients are not eligible for benefits under the Medicaid statute or the Ohio Medicaid plan , the Secretary contends that she reasonably excluded HCAP patients when calculating plaintiffs ’ DSH reimbursement s under the Medicare statut e .3 II. DISCUSSION A. Legal Standard
P laintiffs and the Secretary have both moved for summary judgment here

. The Court will grant a m otion for summary judgment when a party shows “that there is no genuine issue as to any material fact and that the movant is entit led to judgment as a matter of law.” Fed. R. Civ. P

. 56(c)(2). This case presents a pure question of law.
B. Analysis The Court of Appeals for the D.C. Circuit has already decided the very question before this Court. See Adena , 527 F.3d at 176

– 80. In Adena , t wenty

- five hospitals contested the Secretary’s interpretation of the Medicare statute’s formula for providing DSH reimbursements. Like plaintiffs in this case, the Adena plaintiffs asserted that the Secretary should have include d HCAP patients when calcula ting their reimbursement s under the Medicare statute. The Court of Appeals r eversed the district court’s grant of summary judgment to the plaintiffs . It held that the Secretary had correctly calculated plaintiffs’ DSH reimbursements and was entitled to sum mary judgment. Id. at 177

– 78. The Court offered two reasons for its holding, “based not upon any deference to the Secretary’s interpretation but upon [the Court’s] own reading of the Social Security Act.” Id. at 178. First, the Court found that “the HCAP p rovision that requires hospitals to take care [of] indigent patients, § 5112.17(B), is not part of the Ohio ‘State plan approved under [Medicaid].’” Id. (quoting § 1395ww(d)(5)(F)(vi)(II)). Consequently, “HCAP patients are not eligible for care ‘under a St ate plan approved under subchapter XIX [Medicaid]’ within the meaning of the Medicare statute, 42 U.S.C. § 1395ww(d)(5)(F)(vi)(II).” Id.4 Second, the Court compared the language of the Medicare and Medicaid statutes and concluded that “the term ‘medical ass istance,’ which is not defined in Title XVIII of the Act, has the same meaning in the Medicare DSH provision as it has in the federal Medicaid statute, Title XIX of the Act.” Id. at 179. Therefore, “HCAP patients do not obtain, and are not eligible for ,

‘ m edical assistance’ within the meaning of the Medicare DSH provision , wherefore the Hospitals’ case must fail

. ” Id. at 180

. The Court noted that, had Congress wanted “ medical assistance ” to take on a different meaning in the Me d icare DSH provision than it h as in the Medicaid statu t e, “‘ Congress easily could have so indicated. ’ ” Id. (quoting Cabell Huntington Hosp., Inc. v. Shalala , 101 F.3d 984, 990 (4th Cir. 1996) )

. As the Court of Appeals made clear in Adena , HCAP patients are not “eligible for medical as sistance” within the meaning of the Medicare statute, § 1395ww(d)(5)(F)(vi)(II). Accordingly, in the instant case , the Secretary was not statutorily required to include HCAP patients when calculating the DSH reimbursement owed to plai n tiffs. It is therefor e appropriate to grant summary judgment to the Secretary.
III. CONCLUSION
For t he reasons stated herein , plaintiffs’ Mo tion [14] for Summary Judgment will be
DENIED and the Secretary’s Cross

- Motion [19] for Su mmary Judgment w ill be GRANTED. A separate order consistent with this memorandum opinion shall issue this date

. Signed by Royce C. Lamberth, Chief Judge, on January 21, 2011.