When the Supreme Court hears oral argument in the case of Azar v. Allina, No. 17-1484, it may miss key legislative history, showing Congress intended to apply the APA’s notice and comment requirement to significant Medicare interpretive decisions. That’s because contemporaneous legislation, that mostly mirrors some language adopted to apply the APA to Medicare that is at issue in the case, 42 U.S.C. 1395hh(a)(2), is absent from the current court record. Hearings and floor debate about this legislation, called the Medicare Home Health Services Improvement Act, S. 1076 (1987), sponsored by Senator Bill Bradley (D-N.J.), was intended to subject significant Medicare interpretive policies to notice and comment. The language of Bradley’s bill reads:

No rule, requirement, or other statement of policy that has (or may have) a significant effect on the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under this title shall take effect unless it is promulgated by the Secretary by regulation under paragraph (1).

The language that was ultimately adopted reads:

No rule, requirement, or other statement of policy (other than a national coverage determination) that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under this subchapter shall take effect unless it is promulgated by the Secretary by regulation under paragraph (1).

The language from the S. 1076 was later incorporated into a reconciliation bill and slightly modified in conference before it was passed into law.

The legislative history to S. 1076 is illuminating as to the ultimate language’s purpose—to apply notice and comment beyond “traditional” regulatory documents. In fact, a bill summary, published in the Congressional Record, declared:

HCFA has unilaterally promulgated a variety of major policy changes that restrict home care benefits through written and verbal directives, manuals, and guidelines, rather than through the regulatory process. This gives the public and Congress little opportunity to comment on policy changes.

This legislation would require HCFA to comply with the Federal Administrative Procedures Act. This would ensure that policy changes that affect beneficiaries are only instituted through the regulatory process, permitting a thorough review of changes in policy by the public. 133 Cong. Rec. 9261 (1987).

Senator Bradley himself stated his legislation was to thwart interpretive decisions that could harm beneficiaries. “I’m asking that we end the arbitrary interpretations of the law that have caused too many people to be denied the care they need.” (Floor debate can be found at Congressional Record,  133 Cong. Rec. 9257 – 9267 (1987).

Knowing of this legislative history would enable the Supreme Court to dispatch the issue of whether or not Congress intended interpretive decisions to be exempt from the APA’s application to Medicare. That the history of the S. 1076 might go missed is understandable. The hearings, bill language and debate associated with the legislation exist in a sort of “black hole” of digitized Congressional information, outside of the coverage of traditional commercial and public legal databases. Finding it requires some Congressional procedural knowledge and a Heinonline or Proquest Congressional/Legislative Insight account—usually only available from academic libraries—or, better still, access to a law librarian.

For more narrative on this topic see: https://verdict.justia.com/2019/01/14/frenemies-at-last-how-legislative-history-could-save-justice-kavanaughs-opinion-in-azar-v-allina

John Cannan is a Research and Instructional Services Librarian at the Drexel University Thomas R. Kline School of Law