Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in Bloomberg Law Big Law Business, in “Kavanaugh Already May Be Influencing Medicare Payment Appeal,” by Matt Phifer.

Following is an excerpt:

Judge Brett Kavanaugh could influence the trajectory of a pending Medicare reimbursement case worth potentially billions to hospitals before he ever dons a Supreme Court robe.

That is because Kavanaugh’s opinion in Allina Health Servs. v. Azar, which found the Department of Health and Human Services violated the Medicare Act when it changed the reimbursement formula for disproportionate share hospitals (DSH), is the subject of a pending Supreme Court petition. DSH hospitals are those that treat larger numbers of poor and low-income patients.

The federal government asked for high court review of that decision in April and the Supreme Court is scheduled to meet to discuss whether to hear the case on Sept. 24. But the possibility that the court will start its next term with only eight justices, as well as the likelihood that Kavanaugh would not participate if he is confirmed and review is granted, raises the possibility that the court will decide not to review the case at all. …

Tradition suggests that, if confirmed, Kavanaugh should recuse himself from hearing the case. That means only eight justices would hear the government’s appeal, which is the same scenario if the Senate refuses to confirm Kavanaugh and there is further delay in confirming someone else. The high court could choose not to take the case if it feels the eight-justice panel would be deadlocked and leave the D.C. Circuit’s decision in place.

The Supreme Court has declined to review cases it feels may end up in a 4-4 split. Such decisions do not offer any guidance to litigants or federal judges on the underlying legal issues.

“If you’re not going to get a determinative outcome, why take the case at that point?” Stuart Gerson, an attorney in Epstein, Becker, Green’s health-care practice in Washington, asked. “Leave it in the circuits and see what happens,” Gerson told Bloomberg Law.

“It’s never possible to know it for sure, but there are cases where they’re influenced by what’s likely to happen and postpone hearing it,” he added. Gerson previously served as an acting attorney general.

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