Research librarian John Cannan offered insights about the Azar v. Allina case being heard Jan. 15 by the U.S. Supreme Court in an article on the Justia website, Verdict, on Jan. 14.

In “Frenemies at Last? How Legislative History Could Save Justice Kavanaugh’s Opinion in Azar v. Allina,” Cannan explores changes to Medicare law that are coming under Supreme Court scrutiny and will affect billions of dollars in hospital reimbursements. The decision has the potential to affect matters beyond health care finance, since it could allow federal agencies to implement policy changes without public comment.

The court will decide if, under the Medicare Act, the U.S. Department of Health and Human Services must invite public comment as required under the Administrative Procedures Act before changing its formula for reimbursing hospitals.

Justice Kavanaugh is recused from the case, because he had ruled against HHS on the matter when he presided at the U.S. Court of Appeals for the District of Columbia.

Cannan’s article argues that the legislative history of the Medicare law actually supports Kavanaugh’s decision, despite the justice’s deep skepticism about the value of such information.

HHS has argued that it should be exempt from APA requirements because it’s merely interpreting rules fleshed out in the Medicare law, which Kavanaugh rejected, citing the fact that the law does not specifically mention “interpretive rules.”

Cannan notes that the Congressional Record shows that lawmakers did intend to subject significant changes to Medicare eligibility and benefits to a public comment process, despite the fact that the 1987 Medicare law does not specifically mention “interpretive rules.”

“What is painfully clear from the debates around the publication requirement that emerge from Medicare Home Health Services Improvement Act of 1987 is that Congress wasn’t interested in discussing the APA nuances of substantive and interpretive rules, as HHS would claim in Allina,” Cannan wrote. “What its members were interested in was the Health Care Financing Administration’s use of interpretations of law to deny care to Medicare beneficiaries.”

The record supports Kavanaugh, a fact that might convince the justice to amend his disinterest in legislative history, Cannan wrote.

“The full legislative record supports the conclusion reached by Judge Kavanaugh, though with more evidence than he cited in his opinion,” he wrote. “An unintended consequence of Allina could be that if legislative history and Kavanaugh cannot be good friends, perhaps they could at least be congenial acquaintances.”

Cannan, a member of the adjunct faculty, teaches Intellectual Property Legal Research.