Three cases that will be argued in July at the Federal Circuit attracted amicus briefs. One of those cases is Metropolitan Area EMS Authority v. Secretary of Veterans Affairs. In this case, the Federal Circuit will review a final rule passed by the Department of Veterans Affairs that would enable VA to pay the lesser of the actual charge or the Medicare fee schedule (MFS) amount for non-contract ground and air ambulance transports. This is our argument preview.
In their opening brief, the Metropolitan Area EMS Authority, the Valley Ambulance Authority, the Quaker Valley Ambulance Authority, and the Altoona Logan Township Mobile Medical Emergency Department Authority argue that the “final rule is not in accordance with, and exceeds, the Secretary’s authority to set reimbursement rates for ambulance transports in 38 U.S.C. §§ 1728 and 111.” They contend “[t]he final rule defeats the requirement in § 1728 to pay the ‘customary and usual charges of emergency treatment’ or the ‘reasonable value of emergency treatment,’ including emergency ambulance transports.” They also maintain “Congress gave the Secretary limited discretion in § 111(b)(3)(c) to pay lower rates for ambulance transports to or from Department facilities only.” According to these entities, “the final rule is arbitrary and capricious.”
In his response brief, the Secretary of Veterans Affairs begins by arguing that “petitioners forfeited most of their arguments” because “[n]either petitioners nor any other interested party raised the concerns petitioners articulate in their opening brief during the public comment period following publication of the Proposed Rule.” The Secretary further argues that, if the court does consider the arguments, the court “should reject them on the merits.” The Secretary claims that his “reading of Section 111 is supported not only by textual cues and established canons of statutory interpretation, but also . . . longstanding regulatory practice.” Finally, the Secretary maintains, “[b]ecause Congress unconditionally authorized VA to pay the . . . rates, the Court may not impose additional requirements on VA.”
In their reply brief, the petitioners maintain they “forfeited nothing” becasue “[a]ll their arguments raise issues that were before VA during the comment period.” They also maintain “[t]he common thread running through all VA’s arguments is the idea that Congress freed VA from judicial review when it enacted § 111(b)(3)(C).” They say “Congress, however, did no such thing.”
The Ambulance Association of Pennsylvania and the South Dakota Ambulance Association filed an amicus brief in support of the petitioners, vacatur, and remand of the final rule. They argue “the VA’s final rule is not in accordance with existing statutory framework and exceeds the statutory authority that was granted by Congress.” They add that the final rule also “contradicts the unambiguous language of the applicable statutes.”
Oral argument will be heard on Wednesday, July 10. We will keep track of this case and report on any developments.