Eighth Circuit Rejects Hospice’s Fifth Amendment Plea

But not the Fifth Amendment plea you’re thinking of.  It was the takings clause, not the self-incrimination clause, that Southeast Arkansas Hospice (SAH) was pleading.  And the Eighth Circuit wasn’t buying it.

Medicare caps the annual reimbursement a hospice may receive.  The program requires repayment of amounts received in excess of the cap.  After SAH received seven repayment demands from Medicare, it decided to take the initiative.  It sued Secretary Burwell on the grounds that the cap violates the takings clause of the Fifth Amendment: “nor shall private property be taken for public use without just compensation.”

The hospice appealed the district court’s grant of summary judgment to the Secretary.  But the hospice fared no better in the Eighth Circuit.  That court’s March 10 opinion cited three factors in affirming the Secretary’s win: First, the cap simply “allocates the government’s capacity to subsidize healthcare.”  Second, the hospice offered no evidence that the cap made it impossible to make a profit.  Third—and this was the Secretary’s knockout blow—SAH is a voluntary participant in the Medicare hospice program.

The case is Southeast Arkansas Hospice, Inc. v. Burwell, 2016 BL 72917, No. 15-1946 (8th Cir. 2016).

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