Kong v. Scully

341 F.3d 1132, 2003 WL 22038686
Court of Appeals for the Ninth Circuit·Decided September 2, 2003·No. No. 02-15057·Published·Cited by 8 cases

Opinions

Opinion by Judge NOONAN; Concurrence by Judge McKEOWN; Concurrence by Judge RAWLINSON

OPINION

NOONAN, Circuit Judge.

David Kong appeals the judgment of the district court upholding as constitutional on its face and as applied section 4454 of the Balanced Budget Act of 1997. This [1134]*1134law effected amendments to 42 U.S.C. § 1320 and 42 U.S.C. § 1395 in order to permit payments under Medicare and Medicaid Acts for the nonmedical care of persons whose religious tenets lead them to reject medical services. The district court held that these amendments were not an establishment of religion. We affirm the district court.

THE AMENDED STATUTES

42 U.S.C. § 1320c-ll, as amended by the Balanced Budget Act, reads:

Exemptions for religious nonmedical health care institutions The provisions of this part shall not apply with respect to a religious non-medical health care institution (as defined in section 1395x(ss)(l) of this title).

42 U.S.C. § 1395x(e), as amended in its definitions, defines “hospital” to include

a religious nonmedical health care institution (as defined in subsection (ss)(l) of this section), with respect to items and services ordinarily furnished by such institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations consistent with section 1395Í-5 of this title.

42 U.S.C. § 1395x(y)(l), as amended, reads:

Extended care in religious nonmedical health care institutions
The term ‘skilled nursing facility’ also includes a religious nonmedical health care institution (as defined in subsection (ss)(l) of this section), (except for purposes of subsection (a)(2) of this section) with respect to items and services ordinarily furnished by such an institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations consistent with section 1395Í-5 of this title.

The cross-referenced section x(ss)(l) reads in relevant part as follows:

Religious nonmedical health care institution
(1) The term “religious nonmedical health care institution” means an institution that—
(A) is described in subsection (c)(3) of section 501 of The Internal Revenue Code of 1986 and is exempt from taxes under subsection (a) of such section;
(B) is lawfully operated under all applicable Federal, State, and local laws and regulations;
(C) provides only nonmedical nursing items and services exclusively to patients who choose to rely solely upon a religious method of healing and for whom the acceptance of medical health services would be inconsistent with then-religious beliefs;
(D) provides such nonmedical items and services exclusively through non-medical nursing personnel who are experienced in caring for the physical needs of such patients;
(E) provides such nonmedical items and services to inpatients on a 24-hour basis;
(F) on the basis of its religious beliefs, does not provide through its personnel or otherwise medical items and services (including any medical screening, examination, diagnosis, prognosis, treatment, or the administration of drugs) for its patients;
[1135]*1135(G)(i) is not owned by, under common ownership with, or has an ownership interest in, a provider of medical treatment or services;
(ii)is not affiliated with—
(I) a provider of medical treatment or services, or
(II) an individual who has an ownership interest in a provider of medical treatment or services;
(H) has in effect a utilization review plan which—
(i) provides for the review of admissions to the institution, of the duration of stays therein, of cases of continuous extended duration, and of the items and services furnished by the institution,
(ii) requires that such reviews be made by an appropriate committee of the institution that includes the individuals responsible for overall administration and for supervision of nursing personnel at the institution,
(iii) provides that records be maintained of the meetings, decisions, and actions of such committee, and
(iv) meets such other requirements as the Secretary finds necessary to establish an effective utilization review plan;
(I) provides the Secretary with such information as the Secretary may require to implement section 139H-5 of this title, including information relating to quality of care and coverage determinations; and
(J) meets such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.
(2)To the extent that the Secretary finds that the accreditation of an institution by a State, regional, or national agency or association provides reasonable assurances that any or all of the requirements of paragraph (1) are met or exceeded, the Secretary may treat such institution as meeting the condition or conditions with respect to which the Secretary made such finding.
(3)(A)(i) In administering this subsection and section 1395Í-5 of this title, the Secretary shall not require any patient of a religious nonmedical health care institution to undergo medical screening, examination, diagnosis, prognosis, or treatment or to accept any other medical health care service, if such patient (or legal representative of the patient) objects thereto on religious grounds.
(ii) Clause (i) shall not be construed as preventing the Secretary from requiring under section 1395i-5(a)(2) of this title the provision of sufficient information regarding an individual’s condition as a condition for receipt of benefits under part A of this subchapter for services provided in such an institution.

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Kong v. Scully, 341 F.3d 1132, 2003 WL 22038686 (9th Cir. 2003).

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