NAME: Alex M. Azar, II, Secretary of Health and Human Services, Petitioner v. Allina Health Services, et al.
JOINING: Roberts, Thomas, Ginsburg, Alito, Sotomayor, Kagan
Case CommentaryPrior to making Substantive Changes, Medicare is required to give notice and allow the public (and/or effected parties) the opportunity to comment.
Oh, right. Before we continue, I should probably point out that the above is my opinion (as is everything else on this page, project, and website). And since I'm not a lawyer and have no legal training, anything I have to say is a bit like a blind man trying to describe colour.
Substantive Change (like almost every legal phrase) is an invitation to opinion. The issue at hand concerns millions of dollars. But comes in at a mere 0.057% (1/1750) of Medicare's overall budget.
Is that Substantive?
Back when I did Contract Work, I was repeatedly informed that my Contract was of little importance (regardless of the dollar sign), as it was (always, every last time) such a small fraction of a much larger enterprise. 'I don't want to have to think about this,' being a typical statement at closing.
Breyer's Dissent gets it right when he suggests the better course would be sending the case back on remand to determine whether the issue is indeed Substantive.
Since there are no deadlines (that I know of), the entire case is very much moot (moot: debatable, but to no end). To wit, even though the change in Medicare policy has been overruled by The Court, there is nothing (that I know of) preventing Medicare from proposing a retroactive change, providing notice, allowing the public to comment, ignoring any and all the comments, and implementing the policy retroactively.
I mean, great. Medicare did not follow protocol. But as the protocol seems ceremonial (to me), it hardly matters.