By El Nuevo Día - Washington D.C.- In rejecting a lawsuit filed by 25 Puerto Rican hospitals, the First Circuit Court of Appeals recently affirmed that it is up to the Congress review the formula that determines the reimbursement of Medicare to the island's hospitals for the services they provide to a large number of low-income patients.
The appeals court, based in Boston, Massachusetts, upheld on August 18 the constitutionality of this system - known by its acronym DSH - and ruled out that it represents an act of racial discrimination, despite the fact that it includes as part of the reimbursement structure patients who have access to the Supplemental Security Income (SSI) program, which is not in force on the island, causing a reduction in payments to hospitals in Puerto Rico.
That same forum, however, determined in April 2020 that Puerto Rico's exclusion from SSI is unconstitutional for violating the Equal Protection of Laws Clause, a controversy that is before the U.S. Supreme Court for consideration.
While acknowledging the debate pending before the U.S. Supreme Court, the appeals panel, in a footnote, cautioned that the Puerto Rico hospitals did not bring a similar challenge, but rather focused on questioning how the U.S. Secretary of Health implements the law regulating DSH reimbursement.
In his opinion, Judge Steven James McAuliffe of the Federal Court in New Hampshire, who sat on the appeals panel, held that rather than challenging Puerto Rico's exclusion from SSI as a violation of equal protection of the laws, the hospitals argued that it was the Secretary of Health's interpretation of the law that constituted an unconstitutional act.
"If it is unconstitutional to exclude Puerto Rico from SSI, it should be unconstitutional to apply the reimbursement formula (DSH) to the Island's hospitals," Jeffrey Farrow, who was co-chairman of Bill Clinton's White House task force on Puerto Rico, said today.
In this case - in which a decision by San Juan Federal Court Judge Aida Delgado was appealed - Puerto Rico's hospital institutions, including El Maestro, Damas, Pavia, San Pablo and San Francisco hospitals, sued the U.S. Secretary of Health on the grounds that the inclusion of SSI in the formula for determining DSH reimbursements discriminates against the island.
In 1986, the U.S. Congress included Puerto Rico in the Medicare DSH reimbursement program. However, the inclusion of SSI in the payment formula has had the effect of reducing the money received by the Island's hospitals.
In their lawsuit, the hospitals alleged that the U.S. Secretary of Health erred in implementing the law on the grounds that it is inconsistent with the statute governing the Medicare program, administrative procedures and the constitutional equal protection of the laws clause.
The three-judge panel of the First Circuit Court of Appeals rejected that argument.
"We also agree with the district court that the hospitals have not shown that they were victims of unlawful or unconstitutional discrimination by the Secretary," Judge McAuliffe wrote on behalf of the panel, which included appellate judges Jeffrey Howard, presiding judge of the First Circuit, and David Barron.
Howard also participated in the First Circuit's decision in the Vaello Madero case, which was written by Puerto Rican judge Juan Torruella, who died six months later, in October 2020. For Farrow, the contrast between the two decisions highlights the influence Torruella had in that judicial forum.
In the opinion on the hospitals' lawsuit, Judge McAuliffe - widower of astronaut Christa McAuliffe, who died in the September 1986 NASA crash - noted that Congress is aware of the reduction in payments to Puerto Rico through the DSH formula.
"While we understand the hospitals' perspective, and we understand the economic disadvantages they describe, their claim for legal relief falls short," McAuliffe said, noting that Congress has been able to remedy any payment reduction to Puerto Rico, if it wanted to do so.
Puerto Rican Democratic Congresswoman Nydia Velázquez (N.Y.) introduced a bill last April that seeks, among other things, to have the DHS formula take into account whether a low-income patient has access to a state public health plan. In the past, Puerto Rico's resident commissioners have also raised the issue before Congress.
The resident commissioner in Washington, Jenniffer González, like the congressmen of Puerto Rican origin, also promotes the inclusion of Puerto Rico in the SSI, a program that would benefit nearly 350,000 people on the island.
After promising during the 2020 campaign to act on the issue, President Joe Biden has asked Congress to include Puerto Rico in SSI. But, President Biden endorsed his Justice Department's upholding a challenge to the First Circuit's decision declaring it unconstitutional to exclude the island's residents from the program.
First Circuit judges review appeals from federal district courts in Puerto Rico, Massachusetts, Maine, New Hampshire and Rhode Island.
The Senate is pending a vote on the appointment of Judge Gustavo Gelpí, president of the Federal Court of San Juan, to fill the vacancy left in the First Circuit Court of Appeals after Torruella's death.
Source: https://www.elnuevodia.com/corresponsalias/washington-dc/notas/el-primer-circuito-de-boston-avala-que-el-ssi-se-mantenga-en-la-formula-de-reembolso-de-medicare-a-los-hospitales-de-puerto-rico/