The Honorable Louis F. Oberdorfer, District Judge, United States District Court for *

the District of Columbia, who was originally a member of the panel, recused himself after oral

argument and had no role in the preparation of this decision. Because the remaining members

of the Panel are in agreement, we decide this case in accordance with Second Circuit Interim

Local Rule § 0.14(b).

06-4921-cv

Estate of Landers v. Leavitt

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 August Term 2007

5

6

7 (Argued: May 7, 2008 Decided: October 1, 2008

8 Revised: January 15, 2009)

9

10 Docket No. 06-4921-cv

11

12 _____________________________________

13

14 ESTATE OF MARION LANDERS, as represented by its executor,

15 RICHARD LANDERS, MARION A. DIXON, and MURIEL GRIGLEY,

16 on behalf of themselves and all others similarly situated,

17 Plaintiffs-Appellants-Cross-Appellees,

18

19 -v.-

20

21 MICHAEL O. LEAVITT,

22 Secretary of the Department of Health and Human Services,

23 Defendant-Appellee-Cross-Appellant.

24 _____________________________________

25

26 Before: HALL and LIVINGSTON, Circuit Judges.

*

27

28 Medicare participants brought this putative class action challenging denial

29 of coverage for post-hospitalization care in skilled nursing facilities. The United

30 States District Court for the District of Connecticut (Janet C. Hall, J.), certified
2

1 the class, 232 F.R.D. 42, and then granted summary judgment to the defendant,

2 2006 WL 2560297, holding that the plaintiffs were not entitled to Medicare

3 coverage because the durations of their hospitalization did not meet the

4 statutory qualifying stay requirement. We hold that the interpretation of the

5 qualifying stay requirement set forth in the government’s Medicare Benefit

6 Policy Manual is not entitled to deference under Chevron U.S.A. Inc. v. Natural

7 Resources Defense Council, Inc., 467 U.S. 837 (1984), but we nevertheless find

8 the government’s interpretation of the statute persuasive and adopt it.

9 Affirmed.

10 GILL DEFORD, Willimantic, Conn. (Judith A. Stein, Brad S.

11 Plebani, Wey-Wey Kwok, Willimantic, Conn., Sally Hart,

12 Tucson, Ariz., Toby Edelman, Washington, D.C., on the brief),

13 Center for Medicare Advocacy, for Plaintiffs-Appellants-Cross14 Appellees.

15

16 LEWIS S. YELIN, Attorney, Appellate Staff, Civil Division,

17 U.S. Department of Justice, Washington, D.C. (Scott R.

18 McIntosh, Attorney, Appellate Staff, Peter D. Keisler,

19 Assistant Attorney General, Civil Division, U.S. Department

20 of Justice, Washington, D.C., Kevin J. O’Connor, United

21 States Attorney for the District of Connecticut, on the brief),

22 for Defendant-Appellee-Cross-Appellant.

23

24 Carol C. Loepere (Elizabeth A. Ransom, on the brief), Reed

25 Smith LLP, Washington, D.C., for Amici Curiae American

26 Health Care Association, Alliance for Quality Nursing Home

27 Care, American Association of Homes and Services for the

28 Aging, National Association of Professional Geriatric Care

29 Managers, Catholic Health Association of the United States,

30 National Association for the Support of Long Term Care, and

31 National Association of Health Care Assistances in Support of
3

1 Plaintiffs-Appellants-Cross-Appellees.

2

3 Stuart R. Cohen, AARP Foundation Litigation (Bruce

4 Vignery, Stacy Canan, AARP Foundation Litigation, Michael

5 Schuster, AARP, on the brief), Washington, DC, for Amici

6 Curiae AARP, Alliance for Retired Americans, California

7 Advocates for Nursing Home Reform, Greater Boston Legal

8 Services, Long-Term Care Community Coalition, Medicine

9 Rights Center, Michigan Campaign for Quality Care,

10 NCCNHR, and National Senior Citizens Law Center in

11 Support of Plaintiffs-Appellants-Cross-Appellees.

12

13 LIVINGSTON, Circuit Judge:

14 In this case — a dispute about how to count to three — the plaintiffs15 appellants are Medicare beneficiaries who appeal from a grant of summary

16 judgment of the United States District Court for the District of Connecticut

17 (Hall, J.). Each of them spent at least three days in the hospital but was

18 discharged less than three days after having been formally admitted, and each

19 sought coverage under Part A of the Medicare program for a post-hospitalization

20 nursing home stay. After their claims for coverage were initially denied, they

21 brought this lawsuit challenging the denial. The district court granted summary

22 judgment for the government, holding that the plaintiffs were not entitled to

23 Medicare reimbursement because they had not spent the requisite amount of

24 time as hospital inpatients. We agree and therefore affirm.

25

26 BACKGROUND
4

1 “Medicare is the federal government’s health-insurance program for the

2 elderly.” Conn. Dep’t of Soc. Servs. v. Leavitt, 428 F.3d 138, 141 (2d Cir. 2005).

3 It contains four distinct programs, the first of which, known as “Part A,” is a

4 hospital insurance program. See 42 U.S.C. §§ 1395c to 1395i-5. Part A “provides

5 basic protection against the costs of hospital, related post-hospital, home health

6 services, and hospice care” for, among others, eligible people over 65 years of age.

7 Id. § 1395c; see also id. § 426 (establishing the entitlement to Part A benefits).

8 “Under Part A, service providers such as hospitals are paid the lesser of the

9 ‘reasonable cost’ of covered services provided to program beneficiaries or ‘the

10 customary charges with respect to such services,’ and agree not to charge

11 beneficiaries for these services.” Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71,

12 73 (2d Cir. 2006) (citations omitted) (quoting 42 U.S.C. § 1395f(b)(1)); see also

13 Kraemer v. Heckler, 737 F.2d 214, 215-16 (2d Cir. 1984) (describing the basic

14 categories of services covered by Part A).

15 The entitlements under Part A include an extended care benefit, which

16 provides coverage for “post-hospital extended care services for up to 100 days

17 during any spell of illness.” 42 U.S.C. § 1395d(a)(2). Part A does not cover all

18 extended care services that follow hospital stays, however. Rather, Part A

19 requires that the hospital stay be a “qualifying” hospital stay before it covers the

20 subsequent extended care. Specifically, the statute defines “post-hospital
5

1 extended care services” to mean “extended care services furnished an individual

2 after transfer from a hospital in which he was an inpatient for not less than 3

3 consecutive days before his discharge from the hospital in connection with such

4 transfer.” Id. § 1395x(i). In turn, it defines “extended care services” to mean

5 “services furnished to an inpatient of a skilled nursing facility.” Id. § 1395x(h).

6 These services include nursing care, bed and board, physical and occupational

7 therapy, and drugs. Id. If post-hospital extended care services are not covered

8 by Part A, they still may be covered by Part B. Part B is a voluntary program,

9 however, and unlike Part A beneficiaries, Part B enrollees must pay a monthly

10 premium. Matthews v. Leavitt, 452 F.3d 145, 146 n.1 (2d Cir. 2006); Conn. Dep’t

11 of Soc. Servs., 428 F.3d at 141 n.2; Furlong v. Shalala, 238 F.3d 227, 229 (2d Cir.

12 2001).

13 Marion Landers, Marion Dixon, and Muriel Grigley, the first of whom is

14 now deceased and is represented here by her estate, were Medicare beneficiaries

15 who each received inpatient hospital care followed by care at a skilled nursing

16 facility, or “SNF” — essentially, a nursing home. See 42 U.S.C. § 1395i-3(a)

17 (defining SNF). Each of them spent three consecutive days in the hospital before

18 moving to the SNF. Yet the Centers for Medicare and Medicaid Services

19 (“CMS”) — the federal agency situated within the Department of Health and

20 Human Services (“HHS”) that administers the Medicare program on behalf of
1

 In 1977, HHS — then called the Department of Health, Education, and Welfare —

established the Health Care Financing Administration (the “HCFA”), see Reorganization

Order, 42 Fed. Reg. 13,262 (Mar. 9, 1977), and vested in it the Secretary’s full rulemaking

powers under the Medicare statutes, see Statement of Organization, Functions, and

Delegations of Authority, 49 Fed. Reg. 35,247, 35,248 (Sept. 6, 1984). The HCFA was renamed

the Centers for Medicare and Medicaid Services in 2001. See Centers for Medicare & Medicaid

Services; Statement of Organization, Functions and Delegations of Authority; Reorganization

Order, 66 Fed. Reg. 35,437 (July 5, 2001).

6

1 the Secretary of HHS — denied their claims for coverage with respect to their 1

2 post-hospitalization SNF stays. CMS did so in accordance with its own rules for

3 determining whether a patient is eligible for post-hospital SNF coverage.

4 According to one such rule, known as the “three-midnight rule,” a patient is

5 eligible for SNF coverage only if he or she has been “hospitalized . . . for

6 medically necessary inpatient hospital or inpatient [critical access hospital] care,

7 for at least 3 consecutive calendar days, not counting the date of discharge.” 42

8 C.F.R. § 409.30(a)(1). And according to another rule, “a patient is considered an

9 inpatient if [he or she is] formally admitted as [an] inpatient.” Ctrs. for

10 Medicare & Medicaid Servs., Publ’n No. 100-02, Medicare Benefit Policy Manual,

11 ch. 1, § 10 (45th rev. 2006) [hereinafter Medicare Benefit Policy Manual],

12 available at http://www.cms.hhs.gov/Manuals/IOM/list.asp. Landers, Dixon, and

13 Grigley all spent three — but only three — consecutive midnights in hospitals

14 and then moved to nursing homes, where they received extended care services.

15 But while in the hospital, each of them spent at least one midnight either in the

16 emergency room or on observation status before being formally admitted.
7

1 Accordingly, CMS determined that, because they had not spent three consecutive

2 midnights hospitalized after having been formally admitted, Part A did not cover

3 their SNF stays.

4 Landers, Dixon, and Grigley challenged CMS’s interpretation of the

5 qualifying hospital stay requirement in a putative class action. They sought a

6 permanent injunction and a writ of mandamus prohibiting the Secretary from

7 excluding Medicare beneficiaries’ time in the emergency room and on observa8 tion status from counting toward the qualifying stay requirement. The district

9 court granted class certification, Landers v. Leavitt (Landers I), 232 F.R.D. 42

10 (D. Conn. 2005), and on cross-motions for summary judgment, ruled in favor of

11 the Secretary, Landers v. Leavitt (Landers II), No. 3:04-cv-1988 (JCH), 2006 WL

12 2560297 (D. Conn. Sept. 1, 2006). The plaintiffs now appeal.

13

14 DISCUSSION

15 The plaintiffs challenge the district court’s ruling on three grounds. First,

16 they argue that the Medicare statute entitles them to coverage for their post17 hospitalization SNF stays. Second, they contend that CMS’s interpretation of

18 the statute violates the equal protection guarantee of the U.S. Constitution.

19 Third, they argue that the district court erred by basing its decision exclusively

20 on the administrative record.
8

1 I.

2 The Medicare statute provides coverage for a post-hospitalization SNF

3 stay for a beneficiary who receives extended care services in an SNF after having

4 been “an inpatient for not less than 3 consecutive days” in a hospital. 42 U.S.C.

5 § 1395x(i). Neither the statute nor any applicable regulation defines “inpatient.”

6 CMS’s policy manual defines an inpatient as a person who has been formally

7 admitted to a hospital. The government urges us to credit the interpretation of

8 the statute that it has set forth in the policy manual. We only consider whether

9 we should defer to the agency’s interpretation of the statute, however, upon

10 finding the statute ambiguous. Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581,

11 600 (2004) (“[D]eference to [an agency’s] statutory interpretation is called for

12 only when the devices of judicial construction have been tried and found to yield

13 no clear sense of congressional intent.” (citing INS v. Cardoza-Fonseca, 480 U.S.

14 421, 446 (1987))); Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49, 55 (2d

15 Cir. 2004) (“If the provisions of the statute are unclear or ambiguous . . . we must

16 decide whether to defer to [the agency’s] reading of them . . . . If we decide that

17 we are to defer, we must then decide the appropriate level of deference.”). We

18 have little difficulty finding ambiguity here. The statute provides no definition

19 of “inpatient,” and both the plaintiffs and the agency can cite to dictionary

20 definitions supporting their competing definitions. See Webster’s Third New
9

1 International Dictionary 1167 (1976) (defining “inpatient” as “a patient in a

2 hospital or infirmary who receives lodging and food as well as treatment”);

3 American Heritage Dictionary of the English Language 932 (3d ed. 1992)

4 (defining “inpatient” as “[a] patient who is admitted to a hospital or clinic for

5 treatment that requires at least one overnight stay”); see also Oxford English

6 Dictionary (2d ed. 1989) (defining “inpatient” as “a patient who remains in a

7 hospital while under medical treatment”). Therefore, we agree with the agency

8 that the statute is ambiguous as to whether pre-admission time spent in

9 observation and in the emergency room should be considered “inpatient” time

10 upon the patient’s later admission.

11 The next question for us is whether the agency’s interpretation of

12 “inpatient” is of the type that is eligible for deference under Chevron U.S.A. Inc.

13 v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If it is, then we

14 proceed with a Chevron analysis. McNamee v. Dep’t of the Treasury, 488 F.3d

15 100, 105 (2d Cir. 2007); Levine v. Apker, 455 F.3d 71, 80 (2d Cir. 2006). If not,

16 then we construe the statute in the first instance, giving effect to CMS’s

17 nonlegislative interpretation to the extent we find it persuasive in accordance

18 with Skidmore v. Swift & Co., 323 U.S. 134 (1944). We review de novo these

19 questions of law that the district court addressed on cross-motions for summary

20 judgment. Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 621-22 (2d Cir.
10

1 2008); Prot. & Advocacy for Persons with Disabilities v. Mental Health &

2 Addiction Servs., 448 F.3d 119, 123 (2d Cir. 2006); Butts v. Barnhart, 388 F.3d

3 377, 384 (2d Cir. 2004), amended on reh’g in part, 416 F.3d 101 (2d Cir. 2005).

4 A.

5 “[A]n ‘administrative implementation of a . . . statutory provision qualifies

6 for Chevron deference when it appears that Congress delegated authority to the

7 agency generally to make rules carrying the force of law, and that the agency

8 interpretation claiming deference was promulgated in the exercise of that

9 authority.’” Rotimi v. Gonzales, 473 F.3d 55, 57 (2d Cir. 2007) (per curiam)

10 (quoting United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)). The first

11 half of this test is clearly satisfied: Congress has delegated general rulemaking

12 authority with respect to Medicare to the Secretary of HHS, who in turn has

13 delegated that authority to CMS. See, e.g., 42 U.S.C. § 1395ff(a)(1) (“The

14 Secretary shall promulgate regulations and make initial determinations with

15 respect to benefits under part A or part B of this subchapter in accordance with

16 those regulations . . . .”); id. § 1395hh(a)(1) (“The Secretary shall prescribe such

17 regulations as may be necessary to carry out the administration of the insurance

18 programs under this subchapter.”); see also Shalala v. Guernsey Mem’l Hosp.,

19 514 U.S. 87, 96 (1995) (recognizing “the Medicare statute’s broad delegation of

20 authority”); New York ex rel. Stein v. Sec’y of Health & Human Servs., 924 F.2d
11

1 431, 433 (2d Cir. 1991) (“Resolution of Medicare reimbursement issues requires

2 an understanding of complicated and technical facts, and Congress has delegated

3 these difficult decisions to the agency that has specialized knowledge in the

4 area.”). Thus, we move to the second half of the test and consider whether CMS

5 has promulgated its interpretation in the exercise of its authority.

6 Most agency interpretations that have qualified for Chevron deference are

7 rules that have been promulgated in “regulations issued through notice and

8 comment or adjudication, or in another format authorized by Congress for use

9 in issuing ‘legislative’ rules.” Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132,

10 138 (2d Cir. 2002) (citations omitted); see also Mead, 533 U.S. at 230 (“[T]he

11 overwhelming number of our cases applying Chevron deference have reviewed

12 the fruits of notice-and-comment rulemaking or formal adjudication.”). The

13 policy manual provision at issue here, of course, is not the product of notice-and14 comment rulemaking or formal adjudication. Nevertheless, less formal,

15 nonlegislative interpretations are not for that reason alone disqualified from

16 receiving Chevron deference. See Barnhart v. Walton, 535 U.S. 212, 221-22

17 (2002); Mead, 533 U.S. at 230-31; Cmty. Health Ctr., 311 F.3d at 138; see also

18 Gonzales v. Oregon, 546 U.S. 243, 258-69 (2006) (considering at great length

19 whether an interpretive rule was eligible for Chevron deference but ultimately

20 answering in the negative).
 Arguing to the contrary, the government points us to the Ninth Circuit’s recent 2

decision in County of Los Angeles v. Leavitt, 521 F.3d 1073 (9th Cir. 2008), which cited Chevron

in discussing a definition set forth in CMS’s Medicare Provider Reimbursement Manual. Id.

at 1078. The Ninth Circuit has clearly stated, however, that Medicare policy manuals are

interpretive rules and therefore do not receive Chevron deference. See Erringer v. Thompson,

371 F.3d 625, 629-33 (9th Cir. 2004); Cmty. Hosp. v. Thompson, 323 F.3d 782, 788, 791 (9th

Cir. 2003); see also Omohundro v. United States, 300 F.3d 1065, 1068 (9th Cir. 2002) (per

curiam) (“[A]n administrative agency’s interpretation of a statute contained in an informal

rulemaking must be accorded the level of deference set forth in Skidmore . . . .”). Moreover,

although the court in Los Angeles cited Chevron, it appeared elsewhere in the opinion to treat

the manual provision as an interpretive rule to be considered in accordance with Skidmore.

Los Angeles, 521 F.3d at 1077 n.5; id. at 1079 n.8.

12

1 Although nonlegislative rules are not per se ineligible for Chevron

2 deference as a general matter, we are aware of few, if any, instances in which an

3 agency manual, in particular, has been accorded Chevron deference. Indeed, we 2

4 have remarked that Christensen v. Harris County, 529 U.S. 576 (2000), “made

5 clear that ‘interpretations contained in policy statements, agency manuals and

6 enforcement guidelines . . . do not warrant Chevron style deference.’” De La

7 Mota v. U.S. Dep’t of Educ., 412 F.3d 71, 79 (2d Cir. 2005) (quoting Christensen,

8 529 U.S. at 587). Although both Barnhart and Mead recognized that some

9 subset of informal interpretations can receive Chevron deference, the sole

10 example that both cases cite, NationsBank v. Variable Annuity Life Insurance

11 Co., 513 U.S. 251 (1995), concerned an agency opinion letter, id. at 255, which

12 is qualitatively different from an agency manual. Neither Barnhart nor Mead

13 casts doubt on prior pronouncements that agency manuals, as a class, are

14 generally ineligible for Chevron deference. See Mead, 533 U.S. at 234 (describing
13

1 policy statements, agency manuals, and enforcement guidelines as “beyond the

2 Chevron pale”); Guernsey Mem’l Hosp., 514 U.S. at 99 (definition in HHS’s

3 Medicare Provider Reimbursement Manual “is a prototypical example of an

4 interpretive rule” and therefore “do[es] not have the force and effect of law and

5 [is] not accorded that weight in the adjudicatory process”); Pub. Citizen, Inc. v.

6 U.S. Dep’t of Health & Human Servs., 332 F.3d 654, 660 (D.C. Cir. 2003) (Mead

7 and Christensen “cited ‘agency manuals’ as an archetype of the kind of document

8 that is not entitled to [Chevron] deference”). We therefore decline to accord

9 Chevron deference to the interpretation of “inpatient” in CMS’s policy manual.

10 B.

11 An agency interpretation that does not qualify for Chevron deference is

12 still entitled to “respect according to its persuasiveness,” Mead, 533 U.S. at 221,

13 as evidenced by “the thoroughness evident in [the agency’s] consideration, the

14 validity of its reasoning, its consistency with earlier and later pronouncements,

15 and all those factors which give it power to persuade,” id. at 228 (quoting

16 Skidmore, 323 U.S. at 140). As we conduct this inquiry, we are mindful of the

17 Supreme Court’s repeated suggestion that HHS interpretations, in particular,

18 should receive more respect than the mine-run of agency interpretations. See,

19 e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Schweiker v.

20 Gray Panthers, 453 U.S. 34, 43 & n.14 (1981). Indeed, we have observed that,
14

1 in cases such as those involving Medicare or Medicaid, in which CMS, “a highly

2 expert agency[,] administers a large complex regulatory scheme in cooperation

3 with many other institutional actors, the various possible standards for

4 deference” — namely, Chevron and Skidmore — “begin to converge.” Cmty.

5 Health Ctr., 311 F.3d at 138.

6 1.

7 Our analysis of the Skidmore factors in this case leads us to conclude that

8 CMS’s interpretation is entitled to a great deal of persuasive weight. First,

9 CMS’s interpretation is longstanding. See N. Haven Bd. of Educ. v. Bell, 456

10 U.S. 512, 522 n.12 (1982) (“In construing a statute, this Court normally accords

11 great deference to the interpretation, particularly when it is longstanding, of the

12 agency charged with the statute’s administration.”). Medicare came into

13 existence in 1965. See Health Insurance for the Aged Act, Pub. L. No. 89-97, tit.

14 I, 79 Stat. 290 (1965). A nearly contemporaneous HHS regulation established

15 a rule that, like CMS’s current rule, began counting inpatient days for purposes

16 of the qualifying stay requirement on the day the patient was formally admitted:

17 The 3 consecutive days as a hospital inpatient; defined.

18 The 3-consecutive-day hospital inpatient requirement

19 is a period of 3 consecutive calendar days beginning

20 with the calendar day of admission even if less than a

21 24-hour day, and ending with the day before the

22 calendar day of discharge. Thus, in determining

23 whether the 3-consecutive-day requirement is met, the

24 day of admission is counted as one day; the day of
 This regulation, although codified, was not subject to the Administrative Procedure 3

Act’s notice-and-comment process because Medicare regulations were not subject to 5 U.S.C.

§ 553(b)’s requirements until 1971. Nat’l Med. Enters., Inc. v. Sullivan, 957 F.2d 664, 670 n.8

(9th Cir. 1992); see also Public Participation in Rule Making, 36 Fed. Reg. 2532 (Feb. 5, 1971)

(statement of the Secretary of Health, Education, and Welfare opting into the procedures

specified by § 553). Even though not adopted pursuant to relatively formal procedures,

however, the regulation still evidences the longstanding nature of the agency’s view.

15

1 discharge is not counted as a day; and each intervening

2 day is counted as a single day.

3 20 C.F.R. § 405.120(c) (1966). CMS’s interpretation thus reflects a position that 3

4 HHS first adopted more than 40 years ago.

5 Second, CMS is consistent in its interpretation, employing the same

6 definition elsewhere in its guidance manual and expressly declining to count

7 time on observation status or in the emergency room toward the qualifying stay

8 requirement. See Medicare Benefit Policy Manual, supra, ch. 8, § 20.1. This

9 section of the policy manual also references the 1966 Federal Register

10 publication in which HHS promulgated § 405.120(c), which further bolsters the

11 conclusion that CMS desires to maintain its consistent and long-held position.

12 The plaintiffs urge us to find the government’s position inconsistent based

13 on the way in which CMS reimburses beneficiaries for their hospital stays. The

14 plaintiffs in this case sought Medicare reimbursement not only for their post15 hospitalization SNF stays, but also for the time they spent in hospitals before

16 their SNF stays. The same section of the Medicare statute that provides

17 coverage for post-hospitalization SNF stays also provides coverage for hospital
16

1 stays, in the latter case for “inpatient hospital services . . . for up to 150 days

2 during any spell of illness.” 42 U.S.C. § 1395d(a)(1). Yet the plaintiffs were

3 reimbursed both for the services they received after they were formally admitted

4 — in the government’s view, the only time during which they were inpatients —

5 and for the services they received while in the emergency room and on

6 observation status before being formally admitted. This reimbursement policy,

7 the plaintiffs contend, makes the government’s position with respect to SNF

8 reimbursement unreasonable and inconsistent: if pre-admission emergency room

9 and observation status services are “inpatient hospital services,” why should

10 time spent in the emergency room or on observation status not count as

11 “inpatient” hospital time for the purpose of meeting the qualifying stay

12 requirement?

13 The difficulty with this argument is that the statute mandates — or at

14 least strongly counsels in favor of making — precisely the distinction that the

15 government has drawn. Part A’s reimbursements for inpatient hospital services

16 are determined by reference to the statutory term “operating costs of inpatient

17 hospital services.” As the statute defines that term, it means operating costs

18 “with respect to inpatient hospital services . . . , and includes the costs of all

19 services for which payment may be made under this subchapter that are

20 provided by the hospital . . . to the patient during the 3 days . . . immediately
17

1 preceding the date of the patient’s admission if such services are . . . related to

2 the admission.” 42 U.S.C. § 1395ww(a)(4) (emphases added). Thus,

3 § 1395ww(a)(4) directs CMS to provide coverage for an inpatient hospital stay

4 and up to three days of related in-hospital services rendered before the patient

5 was admitted to the hospital. The statute does not, however, require or even

6 suggest that the pre-admission days themselves be treated as inpatient days.

7 Indeed, CMS has relied on this aspect of the statute to explain its present

8 position. See Medicare Program; Prospective Payment System and Consolidated

9 Billing for Skilled Nursing Facilities for FY 2006, 70 Fed. Reg. 29,070, 29,100

10 (May 19, 2005) [hereinafter 2005 Proposed Rules]. Accordingly, regardless of

11 whether we think it sensible as a policy matter for CMS to reimburse pre12 admission hospital services as if they were inpatient services but not consider

13 that time to be part of a pre-SNF inpatient stay, the statutory requirement that

14 pre-admission services be reimbursed leads us to find no regulatory inconsis15 tency in CMS’s decision not to count pre-admission hospital time in determining

16 whether a patient has had an SNF qualifying stay.

17 Third, CMS has recently reconsidered its position on the public record. In

18 2005, CMS “invite[d] comments on whether [it] should consider the possibility

19 of counting the time spent in observation status toward meeting the SNF

20 benefit’s qualifying 3-day hospital stay requirement.” Id. at 29,099. In inviting
18

1 these comments, CMS observed that the three-day stay requirement was

2 designed “to target the SNF benefit more effectively at the limited segment of

3 the nursing home population that the benefit was actually designed to cover

4 (that is, those beneficiaries requiring a short-term, fairly intensive stay in a SNF

5 as a continuation of an acute hospital stay of several days).” Id. It observed,

6 further, that the medical practice of placing patients on observation status

7 before formally admitting them has grown in prevalence since Congress enacted

8 the Medicare statute in 1965, that some commentators have suggested that

9 patients on observation status receive qualitatively the same type of care as

10 admitted patients, and that some view it as unfair for Medicare reimbursement

11 decisions to turn on a distinction that they believe to be “a mere recordkeeping

12 convention on the part of the hospital rather than a substantive change in the

13 actual care that the beneficiary receives there.” Id.

14 Following this invitation, CMS received comments on this precise issue.

15 Many of these comments “expressed support for the idea that hospital time spent

16 in observation status immediately preceding a formal inpatient admission

17 should count toward satisfying the SNF benefit’s statutory qualifying three-day

18 hospital stay requirement.” Medicare Program; Prospective Payment System

19 and Consolidated Billing for Skilled Nursing Facilities for FY 2006, 70 Fed. Reg.

20 45,026, 45,050 (Aug. 4, 2005). “[S]ome others supported counting the obser-
19

1 vation time,” but not “time spent in the emergency room.” Id.

2 Ultimately, however, CMS declined to change its interpretation. With

3 regard to the suggestion that emergency room time count toward the qualifying

4 stay requirement, CMS “d[id] not share the belief . . . that time spent in the

5 emergency room is essentially comparable to observation time in this context”

6 because “the mere presence of time spent in the emergency room prior to formal

7 admission would not, in itself, serve to identify the degree of severity of a

8 particular patient's condition during that time.” Id. With regard to the

9 suggestion that time on observation status count toward the requirement, CMS

10 stated that it was “continuing to review this issue, but [was] not yet ready to

11 make a final determination.” Id. CMS was wary of changing its interpretation,

12 it said, because it did not want to adopt a reimbursement guideline that

13 conflicted with what it viewed as Congress’s “intent in establishing the

14 qualifying hospital stay requirement” — namely, that the SNF benefit “serv[e]

15 as a less expensive alternative to what would otherwise be the final, convales16 cent portion of an acute care stay of several days as an inpatient at a hospital.”

17 Id. at 45,051.

18 The preceding exchange shows that CMS opened its policies to public

19 comment, received comments challenging the interpretation at issue in this case,

20 and declined to change its position in light of what it perceives as Congress’s
20

1 intent in imposing the qualifying stay requirement. CMS’s statement with

2 respect to observation status may be less than wholly satisfying, but it is not so

3 deficient that it lacks persuasive force. To be sure, we may reject an agency

4 interpretation that merely “mirrors the common understanding” at the time the

5 agency adopted its interpretation but has not been revised to reflect “changing

6 circumstances, particularly in areas characterized by rapid technological

7 development.” Detsel v. Sullivan, 895 F.2d 58, 63-64 (2d Cir. 1990). Here,

8 however, CMS does not attempt to justify its position by arguing that it was

9 reasonable when first adopted. Rather, CMS appears to be acutely aware of the

10 changes in medical practice since the 1960s and has declined to include time on

11 observation status toward the three-day count because, in its view, doing so

12 would risk undermining congressional intent. We are thus unable to conclude

13 that CMS “entirely failed to consider an important aspect of the problem” or

14 “offered an explanation for its decision that runs counter to the evidence” before

15 it. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

16 (1983). 

17 The plaintiffs urge us to view this public comment opportunity and CMS’s

18 reconsideration of its interpretation as a farce or as otherwise tainted because

19 it was conducted during the pendency of this litigation. We decline to do so.

20 Although we do not defer to agency constructions of statutes asserted as
21

1 litigating positions, see Rhodes-Bradford v. Keisler, 507 F.3d 77, 80 (2d Cir.

2 2007) (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988)),

3 CMS presented its construction to the public at large and considered its position

4 as a generally applicable matter rather than for a single litigation. The law

5 generally seeks to encourage public participation in agency decisionmaking, see

6 Am. Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 565 (D.C. Cir.

7 1983); Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d

8 658, 662 (D.C. Cir. 1978), and we would frustrate rather than further that goal

9 if we were to strip an agency of deference it would otherwise be due merely

10 because that public participation was spurred by litigation rather than arising

11 from the agency’s self-generated desire or beneficence. By way of analogy, a duly

12 promulgated agency regulation enjoys the full extent of Chevron deference even

13 when the regulation was prompted by pending litigation that lurked in the back14 ground. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996). The

15 plaintiffs proffer no persuasive reason why we should question the integrity of

16 CMS’s deliberative process here given that we would decline to do so in the

17 Chevron context.

18 Fourth, CMS’s rule is the product of an interpretation that is relatively

19 formal within the universe of informal interpretations. “[T]he deference due” to

20 an agency interpretation “is at the high end of the spectrum of deference” when
22

1 “the interpretation in question is not merely ad hoc but . . . is applicable to all

2 cases.” Chauffer’s Training Sch., Inc. v. Spellings, 478 F.3d 117, 129 (2d Cir.

3 2007). CMS’s interpretation, set forth in a policy manual rather than, for

4 example, a nonprecedential letter ruling, is generally applicable and is not an ad

5 hoc position. In the Medicaid context, we have regarded a CMS manual as

6 meriting an “intermediate level” of deference that lies “between a published

7 recommendation and an interpretation advanced only in litigation,” Rabin v.

8 Wilson-Coker, 362 F.3d 190, 198 (2d Cir. 2004), and we do the same here.

9 * * *

10 In sum, the Skidmore factors lead us to regard the statutory interpretation

11 set forth in CMS’s policy manual as persuasive.

12 2.

13 In view of our Skidmore analysis, we conclude that a Medicare beneficiary

14 is not an inpatient within the meaning of § 1395x(i) unless he or she has been

15 formally admitted to a hospital. We reach this conclusion not only because our

16 decision is informed by CMS’s highly persuasive interpretation, but also because

17 it accords with the statutory text and our governing precedents.

18 The statutory definition of inpatient hospital services enumerates such

19 services as “bed and board,” 42 U.S.C. § 1395x(b)(1), “nursing services,” id.

20 § 1395x(b)(2), and “other diagnostic or therapeutic items or services,” id.
23

1 § 1395x(b)(3). The plaintiffs urge us to credit their argument that anyone who

2 receives these services in the hospital is receiving inpatient hospital services and

3 is therefore an inpatient. In light of the statutory text, however, this argument

4 is ultimately question-begging. The statute defines inpatient hospital services

5 to include the aforementioned items and services when they are “furnished to an

6 inpatient of a hospital and . . . by the hospital.” Id. § 1395x(b) (emphasis added).

7 Thus, services cannot be inpatient hospital services unless they are furnished

8 to an inpatient. The construction of the statute that the plaintiffs propose would

9 read the words “to an inpatient of a hospital” out of the statutory text. The facts

10 of this case demonstrate, at most, that the services rendered to the plaintiffs

11 would have been inpatient hospital services if the plaintiffs had been inpatients.

12 Unfortunately, that is not enough to entitle the plaintiffs to reimbursement

13 because it still leaves unanswered the essential issue of defining an inpatient.

14 The conclusion here — that one is an inpatient for the purpose of

15 § 1395x(i) only if one has been formally admitted to a hospital — is also not in

16 tension with our decision in Levi v. Heckler, 736 F.2d 848 (2d Cir. 1984) (per

17 curiam), or those of the other Courts of Appeals that have adopted the same

18 reasoning, see Mayburg v. Sec’y of Health & Human Servs., 740 F.2d 100 (1st

19 Cir. 1984) (Breyer, J.); Kaufman v. Harris, 731 F.2d 370 (6th Cir. 1984) (per

20 curiam); Friedberg v. Schweiker, 721 F.2d 445 (3d Cir. 1983) (per curiam). These
24

1 cases concerned Medicare’s coverage of inpatient hospital services, for which

2 Medicare participants are entitled to reimbursement “for up to 150 days during

3 any spell of illness.” 42 U.S.C. § 1395d(a)(1). Under the statute, a spell of illness

4 begins on the first day a patient is furnished inpatient hospital services and ends

5 when he or she is neither an inpatient of a hospital nor an inpatient of an SNF.

6 Id. § 1395x(a). In Levi, we defined an inpatient of an SNF to mean a patient

7 “who both resides in a skilled nursing facility and receives the ‘skilled nursing

8 care’ there available,” 736 F.2d at 849 (quoting Levi v. Heckler, 575 F. Supp.

9 1381, 1384 (S.D.N.Y. 1983)) (internal quotation mark omitted), and thus held

10 that a patient’s spell of illness ended if he resided in an SNF but received only

11 custodial care, not nursing care. But in Levi, we considered only whether formal

12 residence in an SNF was sufficient to render one an inpatient of that facility. We

13 had no occasion to address the analogue of the question that is presented here:

14 whether formal admission or formal residence is necessary to render one an

15 inpatient. Levi therefore does not shed light on the question at issue.

16 Accordingly, we conclude this portion of our opinion by reiterating our core

17 holding in this case: in determining whether a Medicare beneficiary has met the

18 statutory three-day hospital stay requirement needed to qualify for post19 hospitalization SNF benefits under Part A, the time that the patient spends in

20 the emergency room or on observation status before being formally admitted to
25

1 the hospital does not count. In so holding, we expressly reject the rule of Jenkel

2 v. Shalala, 845 F. Supp. 69 (D. Conn. 1994), which held that “later ‘formal

3 admission’”of a patient following her treatment in the emergency room operates

4 as “a nunc pro tunc ratification of her de facto admission at the time of her

5 arrival in the emergency room.” Id. at 71 (emphasis omitted). As a postscript

6 to this portion of our holding, we note that the Medicare statute does not

7 unambiguously require the construction we have adopted. If CMS were to

8 promulgate a different definition of inpatient in the exercise of its authority to

9 make rules carrying the force of law, that definition would be eligible for

10 Chevron deference notwithstanding our holding today. See Nat’l Cable &

11 Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-86 (2005).

12 II.

13 The plaintiffs also challenge the constitutionality of CMS’s rule, arguing

14 that it violates their rights to equal protection under the Fifth Amendment. See

15 Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997) (“Although . . . the Fifth

16 [Amendment] does not contain an equal protection clause, ‘it does forbid

17 discrimination that is “so unjustifiable as to be violative of due process.”’ The

18 standards for analyzing equal protection claims under either [the Fifth or the

19 Fourteenth A]mendment are identical.” (citation omitted) (quoting Schneider

20 v. Rusk, 377 U.S. 163, 168 (1964))). Specifically, they contend that the rule
26

1 unlawfully discriminates against Medicare patients who spend time in the

2 emergency room or on observation status by treating them less favorably than

3 those who are formally admitted immediately upon arriving or very soon

4 thereafter.

5 The plaintiffs concede that CMS’s interpretation does not implicate any

6 suspect classifications and that, therefore, we should apply rational basis

7 scrutiny. See Furlong v. Shalala, 156 F.3d 384, 392 (2d Cir. 1998). Accordingly,

8 we should find the interpretation constitutionally valid if it is “rationally related

9 to a legitimate government interest,” Kraham v. Lippman, 478 F.3d 502, 506 (2d

10 Cir. 2007), and strike it down as unconstitutional only if the plaintiffs

11 “demonstrate that the government regulation is arbitrary and/or unreasonable,

12 and not rationally related to a legitimate government interest,” Tanov v. INS,

13 443 F.3d 195, 201 (2d Cir. 2006).

14 We conclude that the rule does not violate the Constitution’s

15 guarantee of equal protection. As CMS has noted, Congress intended to create

16 an extended care benefit to serve “as a less expensive alternative to . . . the final,

17 convalescent portion of an acute care stay . . . at a hospital.” Medicare Program;

18 Prospective Payment System and Consolidated Billing for Skilled Nursing

19 Facilities for FY 2006, 70 Fed. Reg. 29,070, 29,099 (May 19, 2005). CMS

20 rationally could have concluded that a bright line rule measuring inpatient time
27

1 based on formal admission would simplify claims processing and reduce

2 administration costs, while targeting the program at the group Congress

3 intended to benefit. CMS’s legitimate interest in administrative efficiency is

4 sufficient to uphold this rule against a rational basis challenge. See Ellis v.

5 Apfel, 147 F.3d 139, 146 (2d Cir. 1998).

6 III.

7 Plaintiff’s final argument is that the district court erred when it refused

8 to consider evidence outside the administrative record. Judicial review of

9 administrative determinations with respect to Medicare benefits is governed by

10 42 U.S.C. § 1395ff(b)(1)(A), which incorporates the provisions of 42 U.S.C. §

11 405(g). According to the latter statute, the district court ordinarily must base

12 its judgment “upon the pleadings and transcript of the record.” 42 U.S.C. §

13 405(g); see also Mathews v. Weber, 423 U.S. 261, 263 (1976) (noting that, under

14 § 405(g), “[t]he court may consider only the pleadings and administrative record,

15 and must accept the Secretary's findings of fact so long as they are supported by

16 substantial evidence”); id. at 270 (“[Under § 405(g),] neither party may put any

17 additional evidence before the district court.”). Nevertheless, the district court

18 has “adequate authority to resolve any statutory or constitutional contention

19 that the agency [did] not, or cannot, decide,” a power that includes, “where

20 necessary, the authority to develop an evidentiary record.” Shalala v. Ill. Council
28

1 on Long Term Care, Inc., 529 U.S. 1, 23-24 (2000).

2 In support of their motion for summary judgment, the plaintiffs submitted

3 a statement of material facts, several declarations, and interrogatories in which

4 CMS officials explained the policy at issue. The district court granted the

5 government’s motion to strike these extra-record submissions, ruling that

6 because the case presents “a purely legal challenge to the Secretary’s policy,” it

7 “does not require factual determinations with respect to individual plaintiffs that

8 would require resort to evidence outside the administrative record.” Landers II,

9 2006 WL 2560297, at *3. Because the district court’s decision not to admit

10 evidence outside the record is an exercise of its “authority to develop an

11 evidentiary record,” Ill. Council on Long Term Care, 529 U.S. at 23-24, we review

12 that decision for abuse of discretion. Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.

13 2007) (“We review evidentiary rulings for abuse of discretion.” (citing Caruolo v.

14 John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000))).

15 The district court correctly excluded the interrogatories. In the ordinary

16 case, we must uphold or set aside the agency’s action on the grounds that the

17 agency has articulated. State Farm, 463 U.S. at 50. Supplementation of the

18 administrative record may be appropriate if “there was such failure to explain

19 administrative action as to frustrate effective judicial review,” Camp v. Pitts, 411

20 U.S. 138, 142-43 (1973) (per curiam), but we find no such failure here. As
29

1 discussed above, we find the agency’s justification of its decision not to change

2 its interpretation “disclose[s] the factors that were considered,” Citizens to

3 Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971), and adequately

4 explains its action. See Camp, 411 U.S. at 142. The plaintiffs argue that this

5 principle of judicial review creates a risk that agencies will be able to hoodwink

6 courts into accepting agencies’ self-interested justifications, but we are unwilling

7 to ascribe such nefarious motives to agency action as a general matter. See U.S.

8 Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regularity

9 attaches to the actions of Government agencies . . . .”); Withrow v. Larkin, 421

10 U.S. 35, 47 (1975) (referring to the “presumption of honesty and integrity in

11 those serving as [agency] adjudicators”). It is well-established that courts should

12 focus exclusively on the formal administrative record unless that record is

13 insufficient to shed light on the rationale for the agency’s decision. The record

14 here is sufficient and we decline to consider additional evidence.

15 The district court also correctly excluded the plaintiffs’ declarations and

16 statement of material facts. The facts set forth in these submissions are not

17 material to the plaintiffs’ eligibility for reimbursement because the nature of the

18 medical services rendered to the plaintiffs cannot, by themselves, establish the

19 plaintiffs’ eligibility for SNF coverage. See Jones v. Sullivan, 949 F.2d 57, 60 (2d

20 Cir. 1991) (“The concept of materiality requires . . . a reasonable possibility that
30

1 the new evidence would have influenced the Secretary to decide [the] claimant’s

2 application differently.”). In refusing to consider these submissions, therefore,

3 the district court acted within its sound discretion.

4

5 CONCLUSION

6 For the foregoing reasons, we affirm the judgment of the district court.

7