PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE MARYLAND PSYCHIATRIC SOCIETY,
INCORPORATED, a District Branch of
the American Psychiatric
Association,
Plaintiff-Appellee,

v.

MARTIN P. WASSERMAN, M.D., J.D.,
Secretary, Department of Health and   No. 95-2767
Mental Hygiene of the State of
Maryland,
Defendant-Appellant,

and

DONNA E. SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Defendant.
THE MARYLAND PSYCHIATRIC SOCIETY,
INCORPORATED, a District Branch of
the American Psychiatric
Association,
Plaintiff-Appellee,

v.

DONNA E. SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES,                                          No. 95-2970
Defendant-Appellant,

and

MARTIN P. WASSERMAN, M.D., J.D.,
Secretary, Department of Health and
Mental Hygiene of the State of
Maryland,
Defendant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-894-S)

Argued: October 31, 1996

Decided: December 16, 1996

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Reversed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Luttig and Senior Judge Butzner joined.

_________________________________________________________________

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COUNSEL

ARGUED: Kathleen A. Morse, Assistant Attorney General, Balti-
more, Maryland; Alisa Beth Klein, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellants. Kathleen Howard Meredith, ILIFF & MERE-
DITH, P.C., Baltimore, Maryland, for Appellee. ON BRIEF:
J. Joseph Curran, Jr., Attorney General, Baltimore, Maryland, for
Appellant Wasserman; Frank W. Hunger, Assistant Attorney General,
Lynne Ann Battaglia, United States Attorney, Barbara C. Biddle,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellant Shalala.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

The Maryland Psychiatric Society, a professional association of
psychiatrists, seeks injunctive and declaratory relief against Donna
Shalala, Secretary of Health and Human Services, and Martin
Wasserman, Secretary of the Maryland Department of Health and
Mental Hygiene. The Society challenges the Secretaries' interpreta-
tion of the federal statutes governing payments for out-patient psychi-
atric services under a joint Medicare/Medicaid program called the
Qualified Medicare Beneficiary ("QMB") Program. The district court
agreed with the Society's interpretation and granted summary judg-
ment in its favor. Because the district court's ruling imposes a finan-
cial burden on states which finds no basis in the relevant Medicare
and Medicaid statutes, we reverse its judgment.

I.

The QMB program, thoroughly described in Rehabilitation Ass'n
of Va., Inc. v. Kozlowski, 42 F.3d 1444 (4th Cir. 1994), is a hybrid
of the Medicare and Medicaid programs. Individuals eligible for the
program ("QMBs") have a certain percentage of their medical costs
paid by Medicare (usually 80%). The remaining 20%, plus their
annual premiums and annual deductibles, are paid by the state Medic-

                    3
aid program. The Medicaid statute forbids charges to the QMBs
themselves over a nominal amount. 42 U.S.C. § 1396o.

Unlike most services where Medicare pays 80% of the full fee
schedule amount, outpatient psychiatric services are only partially
covered. Medicare coverage for these services is calculated by first
excluding 37.5% from the fee schedule amount, and then paying 80%
of the remaining 62.5%. 42 U.S.C. §§ 1395l(c), 1395l(a).

At issue in this case is who pays the excluded 37.5% for patients
covered by the QMB program. The state of Maryland has paid the
20% of the 62.5% for QMBs under the state Medicaid program. The
question of who pays the 37.5% exclusion, however, is not addressed
in either the Medicaid or the Medicare statutes. Maryland's Secretary
of Health and Mental Hygiene has taken the position that Maryland
is not responsible for covering it. The United States supports this
view. The Society argues on the other hand that the QMB statute
requires the states to pay for the exclusion.

The District Court granted the Society's motion for summary judg-
ment, ruling that the Society had the better view of the applicable stat-
utory provisions. Secretaries Wasserman* and Shalala both appealed.
_________________________________________________________________
*Secretary Wasserman raises two preliminary challenges on this
appeal. He first argues that the Society lacks standing to enforce the pro-
visions of Medicare and Medicaid because the intended beneficiaries of
these statutes are patients, not psychiatrists, physicians or providers. We
ruled to the contrary in Rehabilitation Association of Virginia v.
Kozlowski, 42 F.3d 1444, 1449 (4th Cir. 1994). Wasserman next con-
tends that under Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114
(1996), this court lacks jurisdiction to hear the Society's claim against
him. He argues that because the Medicaid Act has a"comprehensive and
detailed remedial scheme," Congress must have intended to foreclose
suits designed to force state officials to comply with the terms of the Act.
The Supreme Court rejected virtually identical arguments in Wilder v.
Virginia Hosp. Ass'n, 496 U.S. 498 (1990), ruling that the federal Secre-
tary's "generalized powers" to audit and sanction noncompliant states
"were insufficient to foreclose reliance on § 1983 to vindicate federal
rights" in the Medicaid Act. Id. at 522.

                    4
II.

A state must agree to pay for "medicare cost-sharing" for QMBs
in order to receive federal funds for its Medicaid program. 42 U.S.C.
§ 1396a(a)(10)(E)(i). The term "medicare cost-sharing" includes four
specifically defined categories of costs that the state Medicaid pro-
gram must pick up: premiums, coinsurance, deductibles, and the 20%
left over after Medicare pays 80% for certain services. 42 U.S.C.
§ 1396d(p)(3). Nowhere do the QMB provisions mention Medicare's
37.5% exclusion for outpatient psychiatric services. The Society urges
this court to find that the 37.5% exclusion is implicitly included in the
"coinsurance" expenses that states are required to cover. 42 U.S.C.
§ 1396d(p)(3)(B). This we cannot do. Such a reading of "coinsurance"
violates the boundaries of federal power set forth in Pennhurst v.
Halderman, 451 U.S. 1 (1981), and finds no basis in the Medicare/
Medicaid statutes.

A.

By virtue of its spending power, Congress is permitted to condition
receipt of federal funds upon certain state actions. King v. Smith, 392
U.S. 309, 333 (1968). Such conditions, however, must be explicit and
unambiguous, so that states understand the bargain they have made
when they sign up for federal programs. Pennhurst, 451 U.S. at 17.
Moreover, "in those instances where Congress has intended the States
to fund certain entitlements as a condition of receiving federal funds,
it has proved capable of saying so explicitly." Id. at 17-18.

If Congress intended states to pay the 37.5% exclusion for outpa-
tient psychiatric services for QMBs, it certainly did not say so explic-
itly, clearly, and unambiguously. The QMB provisions do not
mention the exclusion at all. See 42 U.S.C.§ 1396a(a)(10)(E)(i); 42
U.S.C. § 1396d(p). While the Medicare statute allows non-QMB
patients themselves to be charged the 37.5% excluded amount, 42
U.S.C. § 1395cc(a)(2)(A), nothing in the statute mentions who, if
anyone, is required to pay the excluded amount for QMB patients. See
42 U.S.C. § 1395l(c).

The Society argues that states must cover the 37.5% exclusion
because it is included in the QMB provision requiring states to pay

                    5
"[c]oinsurance under subchapter XVIII [the Medicare Act] (including
coinsurance described in section 1395e of this title.)" 42 U.S.C.
§ 1396d(p)(3)(B). The district court so found by looking to Webster's
Ninth New Collegiate Dictionary to illuminate Congress's intention
for the word "coinsurance." The court found that coinsurance means
"a shared obligation or `joint assumption of risk'" and that the 37.5%
exclusion falls within this definition and should therefore be paid by
the states for QMB patients.

The problem with adopting the district court's dictionary definition
of coinsurance is that it sweeps in too much and renders other provi-
sions of section 1396d(p)(3) superfluous. If the term coinsurance in
section 1396d(p)(3)(B) were intended to include every payment obli-
gation shared by the federal government and a state Medicaid pro-
gram, then it would certainly encompass the 20% copayment required
of states under the QMB program. If that were true, Congress would
not have needed to include section 1396d(p)(3)(D), which requires the
states to pay the 20% copayment for QMBs. Rules of statutory con-
struction forbid us to construe one provision in a way that renders
another provision of the same enactment superfluous. Freytag v.
Commissioner of Internal Revenue, 501 U.S. 868, 877 (1991).

In all events, the general dictionary definition of coinsurance is too
loose to support the imposition of substantial financial burdens on
state governments. Instead, we read the word "coinsurance" to refer
specifically to those expenses which Congress identified as "coinsur-
ance" in the statutory sections that 1396d(p)(3)(B) references. Such
a reading of the word "coinsurance" is consistent with the text and
structure of the statute. Section 1396d(p)(3)(B) requires states to pay
QMBs' "[c]oinsurance under subchapter XVIII[the Medicare Act]
(including coinsurance described in section 1395e of this title.)" Sec-
tion 1395e, describing cost-splitting for inpatient hospital services,
explicitly uses the label "coinsurance" for certain identified costs not
covered by Medicare. Similarly, when Congress added new provi-
sions to the Medicare Act to cover prescription drugs in 1988, it
expressly called certain of the noncovered amounts"coinsurance."
See Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-
360, Title III, § 202, 102 Stat. 683, 702 (since repealed).

The 37.5% exclusion for outpatient psychiatric services, however,
is not labelled as "coinsurance" anywhere in the Medicare or Medic-

                     6
aid statutes. Unlike the 1988 prescription drug obligations, the 37.5%
amount is not called coinsurance in the provision that excludes that
amount from Medicare reimbursement, 42 U.S.C. § 1395l(c). Nor
does section 1396d(p)(3)(B) explicitly cross-reference or include the
37.5% exclusion in its terms.

Because no provision in either the Medicare or Medicaid statutes
explicitly and unambiguously requires states to cover the 37.5%
exclusion, reading the QMB statute to mandate state coverage
imposes a burden in violation of Pennhurst. As the Supreme Court
has explained,

          The case for inferring intent is at its weakest where, as here,
          the rights asserted impose affirmative obligations on the
          States to fund certain services, since we may assume that
          Congress will not implicitly attempt to impose massive
          financial obligations on the States.

Pennhurst, 451 U.S. at 16-17. The states signed up to pay narrowly-
defined categories of premiums, coinsurance, deductibles, and 20% of
the incurred expenses for specific services. Nowhere did their contract
with the federal government say that states would be required to cover
amounts that were totally excluded from the Medicare calculation.
Nowhere did their contract even suggest that the states must pick up
50% of the tab for any medical service (the 37.5% exclusion plus
20% of the remaining 62.5% equals 50% of total cost). Pennhurst
does not permit the federal courts to connive in this sort of ambush
of state treasuries. Redrafting the terms of understandings between the
state and federal governments is little different from renegotiating
contracts between private parties. Both are impermissible.

B.

The impropriety of imposing the 37.5% exclusion on states is
underscored by several other factors. Among them is the fact that the
federal Secretary of Health and Human Services, who is responsible
for administering the QMB program, agrees that the states are not
responsible for paying the 37.5%. It would take an extraordinary view
of Pennhurst and Chevron v. Natural Resources, 467 U.S. 837

                    7
(1984), to fasten large financial obligations on the states in violation
of the statutory interpretation of the federal implementing agency.

It is true that the Secretary espoused a contrary interpretation prior
to 1992, and that her current interpretation of the statute may thus be
entitled to less deference. See INS v. Cardoza-Fonseca, 480 U.S. 421,
446 n.30 (1987). Even so, we find it to be significant that the federal
Secretary and the state Secretary are in accord. If the state and federal
governments both believe they agreed to the same terms in their QMB
contract, courts should not casually change those terms and require
the states to spend millions of additional dollars on psychiatric ser-
vices.

The state's interpretation of the statute is also bolstered by the fact
that the Society's arguments rest on a faulty assumption. The Society
asserts that its member psychiatrists possess a statutory right to
recover 100% of their reasonable charges in all circumstances, and
that therefore some government entity, either state or federal, must
pay the exclusion. See New York City Health & Hosps. Corp. v.
Perales, 954 F.2d 854, 858 (2d Cir. 1992) (finding that Part B provid-
ers have an "express statutory right to recover their full reasonable
costs or charges").

The Society's assumption has no basis in the statute. While 42
U.S.C. § 1395cc(a)(2)(A) authorizes providers to charge for the full
amount of provided services, it does not guarantee full recovery. In
Rehabilitation Association, this court declined to rest its judgment on
a statutory right to 100% recovery for Medicare Part B providers,
despite the fact that the district court had ruled on precisely that
ground. Further, section 1395cc(a)(2)(A) applies only to "providers of
services." "Providers of services" is a term of art which includes hos-
pitals, nursing homes, clinics and similar organizations. It does not
include physicians. 42 U.S.C. §§ 1395x(u), 1395cc(e). To the extent
that the Society's case rests on the premise of a 100% recovery guar-
antee to plaintiffs in all circumstances based on the Medicare or Med-
icaid statutes, we find it flawed.

Finally, the state's interpretation of the statute complies with Con-
gress' judgment that mental health services have a lesser claim than
physical health services on scarce governmental resources. For most

                     8
outpatient physical health services, Congress has provided that Medi-
care will cover 80% of the reasonable cost. 42 U.S.C. § 1395l(a). By
contrast, Medicare covers only 50% of outpatient mental health ser-
vices (80% of 62.5%). 42 U.S.C. § 1395l (c). It would be ironic to
conclude that when Congress designates a particular service for lesser
funding it expects states to spend a greater percentage of their limited
Medicaid funds on that disfavored service. As the Supreme Court has
noted:

          Title XIX [Medicaid] was designed as a cooperative pro-
          gram of shared financial responsibility, not as a device for
          the Federal Government to compel a State to provide ser-
          vices that Congress itself is unwilling to fund.

Harris v. McRae, 448 U.S. 297, 309 (1980). Congress could not have
intended to leave the states holding the bag on every congressional
exclusion. We certainly find no such obligation in the instant case.

III.

For the foregoing reasons, we reverse the judgment of the district
court and remand this case with directions that it be dismissed.

REVERSED

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