[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases [JURIST report] Tuesday. In Sebelius v. Auburn Regional Medical Center [transcript, PDF] the court heard arguments on whether a 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board (PRRB) from a final Medicare payment determination, under 42 USC § 1395oo(a)(3) [text], is subject to equitable tolling. At attorney for the Department of Health and Human Services (HHS) [official website] argued that in 40 years of Medicare history, the 180-day period has been a hard and fast rule that has never been questioned as being part of the Secretary of HHS rule-making authority. John Manning [official profile] was then invited to make arguments as court-appointed amicus curiae, and, after having briefed the case, he agreed with the HHS that the statutory time period was absolute. Finally, on behalf of Auburn Regional Medical Center and 18 other hospitals, attorney Robert Roth argued that equitable tolling is appropriate “with intentional concealment, when you have actions by the Secretary, misconduct by the Secretary, that caused the statute of limitations time to be missed.” The respondents’ position is that the HHS deceived the hospitals from attempting appeals with the PRRB that would have netted reimbursements.

The facts that we have here, Your Honor, is that this is really an unprecedented case. This is unprecedented case in Medicare, that we have the agency that says it was doing one thing in a Federal Register document and actually did something different, that then spent years trying to avoid, as was laid out in the Southwest Consulting amicus brief, avoid having those facts come to—come to—come to the attention of the providers.

The HHS was recently sued [JURIST report] in connection to the use of privatized contractors and their denial of reimbursements to hospitals.

The court also heard arguments in Los Angeles County Flood Control District v. Natural Resources Defense Council [transcript, PDF] on the Clean Water Act [materials]. In question is whether there is discharge or outfall [backgrounder] when transferring water from one point of a river to another through flood control mechanisms. All parties have agreed that the US Court of Appeals for the Ninth Circuit applied the correct rule, but wanted the court to consider different rationales before remanding the case back to the Ninth Circuit. The issue was considered by Roderick Walston [official profile] in Supreme Court Should Not Unduly Expand the Scope of the CWA [JURIST comment].