                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                May 31, 2016
                                  PUBLISH                   Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 CARING HEARTS PERSONAL
 HOME SERVICES, INC.,

       Plaintiff - Appellant,

 v.                                                   No. 14-3243

 SYLVIA MATHEWS BURWELL,
 Secretary of the United States
 Department of Health and Human
 Services,

       Defendant - Appellee.


                 Appeal from the United States District Court
                          for the District of Kansas
                    (D.C. No. 2:12-CV-02700-CM-KMH)


Donald M. McLean, Kansas City, Kansas, for Plaintiff-Appellant.

Melissa D. Hart, Special Assistant United States Attorney, United States
Department of Health & Human Services, Baltimore, Maryland (Barry R.
Grissom, United States Attorney, and Jackie A. Rapstine, Assistant United States
Attorney, and William B. Schultz, General Counsel, Janice L. Hoffman, Associate
General Counsel, and Susan Maxson Lyons, Deputy Associate General, United
States Department of Health and Human Services, Topeka, Kansas, with her on
the brief), for Defendant-Appellee.


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.
      Executive agencies today are permitted not only to enforce legislation but

to revise and reshape it through the exercise of so-called “delegated” legislative

authority. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

865-66 (1984). The number of formal rules these agencies have issued thanks to

their delegated legislative authority has grown so exuberantly it’s hard to keep up.

The Code of Federal Regulations now clocks in at over 175,000 pages. And no

one seems sure how many more hundreds of thousands (or maybe millions) of

pages of less formal or “sub-regulatory” policy manuals, directives, and the like

might be found floating around these days. For some, all this delegated

legislative activity by the executive branch raises interesting questions about the

separation of powers. See, e.g., Dep’t of Transp. v. Ass’n of Am. R.Rs., 135 S. Ct.

1225, 1240-42 (2015) (Thomas, J., concurring in the judgment); id. at 1237

(Alito, J., concurring); see also De Niz Robles v. Lynch, 803 F.3d 1165, 1171 &

n.5 (10th Cir. 2015). For others, it raises troubling questions about due process

and fair notice — questions like whether and how people can be fairly expected to

keep pace with and conform their conduct to all this churning and changing

“law.” See, e.g., The Federalist No. 62, at 381 (James Madison) (Clinton Rossiter

ed., 1961) (“It will be of little avail to the people, that the laws are made by men

of their own choice, if the laws be so voluminous that they cannot be read, or so

incoherent that they cannot be understood; . . . or undergo such incessant changes


                                         -2-
that no man, who knows what the law is to-day, can guess what it will be to-

morrow.”). But what if the problem is even worse than that? What happens if we

reach the point where even these legislating agencies don’t know what their own

“law” is?

      That’s the problem we confront in this case. And perhaps it comes as little

surprise that it arises in the Medicare context. Medicare is, to say the least, a

complicated program. The Centers for Medicare & Medicaid Services (CMS)

estimates that it issues literally thousands of new or revised guidance documents

(not pages) every single year, guidance providers must follow exactingly if they

wish to provide health care services to the elderly and disabled under Medicare’s

umbrella. Currently, about 37,000 separate guidance documents can be found on

CMS’s website — and even that doesn’t purport to be a complete inventory. See

Jessica Mantel, Procedural Safeguards for Agency Guidance: A Source of

Legitimacy for the Administrative State, 61 Admin. L. Rev. 343, 353 (2009).

      But how did CMS wind up confused about its own law? It began this way.

Caring Hearts provides physical therapy and skilled nursing services to

“homebound” Medicare patients. 42 U.S.C. § 1395f(a). Of course, any Medicare

provider may only charge the government for services that are “reasonable and

necessary.” Id. § 1395y(a)(1)(A). But Congress hasn’t exactly been clear about

who qualifies as homebound or what services qualify as reasonable and necessary.

So CMS has developed its own rules on both subjects — rules the agency has

                                          -3-
(repeatedly) revised and expanded over time. In a recent audit, CMS purported to

find that Caring Hearts provided services to at least a handful of patients who

didn’t qualify as “homebound” or for whom the services rendered weren’t

“reasonable and necessary.” As a result, CMS ordered Caring Hearts to repay the

government over $800,000.

      The trouble is, in reaching its conclusions CMS applied the wrong law. As

we’ll see, the agency didn’t apply the regulations in force in 2008 when Caring

Hearts provided the services in dispute. Instead, it applied considerably more

onerous regulations the agency adopted only years later. Regulations that Caring

Hearts couldn’t have known about at the time it provided its services.

Regulations that even CMS concedes bore only prospective effect. See 42 U.S.C.

§ 1395hh(e)(1)(A). And as we’ll see, Caring Hearts can make out a pretty good

case that its services were entirely consistent with the law as it was at the time

they were rendered. So this isn’t (and never was) a case about willful Medicare

fraud. Instead, it’s a case about an agency struggling to keep up with the furious

pace of its own rulemaking.

      So what to do? Caring Hearts says we can find a way out through 42

U.S.C. § 1395pp. In seeming recognition of the complexity of the Medicare

maze, Congress there indicated that providers who didn’t know and couldn’t have

reasonably been expected to know that their services weren’t permissible when

rendered generally don’t have to repay the amounts they received from CMS. A

                                          -4-
sort of good faith affirmative defense, if you will. Of course, in administrative

proceedings CMS rejected Caring Hearts’s application for relief under § 1395pp.

But in doing so, the agency held that the firm knew or should’ve known its

conduct was unlawful only in light of regulations that were then but figments of

the rulemakers’ imagination, still years away from adoption. And Caring Hearts

submits this means we should vacate the agency’s decision, just as we would any

other that rests on a mistake about applicable law.

      With this we agree. For surely one thing no agency can do is apply the

wrong law to citizens who come before it, especially when the right law would

appear to support the citizen and not the agency. See, e.g., Lax v. Astrue, 489

F.3d 1080, 1084 (10th Cir. 2007) (“We review the [agency] decision to determine

whether the factual findings are supported by substantial evidence in the record

and whether the correct legal standards were applied.”); Sandoval v. Aetna Life &

Cas. Ins. Co., 967 F.2d 377, 380 n.4 (10th Cir. 1992) (“In our view, both lack of

substantial evidence and a mistake of law would be indicia of arbitrary and

capricious actions and thus may be subsumed under the arbitrary and capricious

label.”); cf. Danti v. Lewis, 312 F.2d 345, 349 (D.C. Cir. 1962) (holding a

decision “arbitrary and capricious” where it was based on a failure to comply with

a resolution “which did not exist when [the application] was filed, when in fact




                                         -5-
the application was sufficient to establish eligibility under [the] standards at the

time it was received”). 1

      Take first the cases where CMS says Caring Hearts provided care to

individuals who weren’t homebound. Here’s a typical example, involving a

patient known in our record as L.Sm. At the time Caring Hearts provided L.Sm.

with home health services he was 85 years old, weighed 352 pounds, and suffered

from diabetes, high blood pressure, and a host of other ailments. By all accounts

he could not easily walk 20 feet and, while he sometimes used a walker or cane,

he more or less “lived” in a wheelchair. Despite these documented facts, CMS

adopted the ALJ’s judgment that L.Sm. wasn’t homebound and Caring Hearts

could not have reasonably thought otherwise. In support of its conclusion the

agency reasoned that “the evidence does not establish . . . that leaving his home

would require considerable and taxing effort.” ALJ Op. at 46 (App. Vol. 2 at

338). And it’s surely true that CMS’s current regulations state that for a patient

to qualify as homebound he must “normal[ly]” be unable “to leave home” even


      1
         You might wonder if there’s a more direct route to the same destination.
For if an agency’s refusal to recognize an affirmative defense to a penalty is
unlawful because the agency relied on the wrong law, you might ask whether the
agency’s decision to issue the penalty in the first instance was also impermissible
for exactly the same reason. But while this argument might occur to you, it is not
one Caring Hearts presents. And whether a more direct road lies unused before us
doesn’t much matter if the more circuitous one the petitioner walks leads to the
same place. Neither given the efficacy of the path we consider here do we have
to consider the various other paths toward reversal Caring Hearts offers in this
appeal.

                                          -6-
with a wheelchair and any attempt to leave home must also “require a

considerable and taxing effort.” Medicare Benefit Policy Manual (MBPM), Pub.

No. 100-02, Ch. 7, § 30.1.1 (Rev. 208, May 11, 2015). For purposes of this

appeal, too, we spot CMS the possibility (without in any way deciding) that L.Sm.

would fail to qualify as homebound within the meaning of this narrow definition

because (again for argument’s sake only) we accept the possibility that he was

often able to leave home in his wheelchair without “considerable and taxing

effort.”

      The trouble is that CMS’s current regulations defining who qualifies as

homebound look little like the regulations in effect when Caring Hearts provided

care to L.Sm. in 2008. Back then, CMS’s regulations indicated that, “[g]enerally

speaking, a patient will be considered homebound if they [sic] have a condition

due to an illness or injury that restricts their ability to leave the place of residence

except with the aid of: supportive devices such as crutches, canes, wheelchairs,

and walkers . . . .” MBPM, Ch. 7, § 30.1.1 (Rev. 1, Oct. 1, 2003). So rather than

asking whether a patient could leave home with a supportive device, the

regulations back then seemed to ask whether a patient could leave home without

one. And it seems pretty clear from the record before us that L.Sm. qualified as

homebound under this more generous definition. After all, no one disputes that

L.Sm. was unable to leave his house without some kind of “supportive device,”

for he “lived” in his wheelchair and struggled to walk even 20 feet. Indeed, it

                                          -7-
seems CMS issued its current regulations narrowing the class of persons who

qualify as homebound specifically to preclude relief in future cases exactly like

this one. See Dep’t of Health & Human Servs., Centers for Medicare & Medicaid

Servs., Change Request 8444 (Oct. 18, 2013) (explaining the new regulations

were expressly designed to “clarif[y] the definition” of what it means to be

homebound and remove “vague terms” like “generally speaking” in an effort to

“promote . . . clearer [one might add, stricter] enforcement”).

      Of course, CMS’s regulations don’t exist in a vacuum. There’s also the

statute they purport to interpret. And CMS suggests that, whatever its relevant

regulations said at the time, the statute’s plain terms also and independently

alerted Caring Hearts to the impropriety of its care for patients like L.Sm. The

relevant statutory language provides that

      an individual shall be considered to be “confined to his home” if the
      individual has a condition, due to an illness or injury, that restricts the
      ability of the individual to leave his or her home except with the assistance
      of another individual or the aid of a supportive device (such as crutches, a
      cane, a wheelchair, or a walker), or if the individual has a condition such
      that leaving his or her home is medically contraindicated. While an
      individual does not have to be bedridden to be considered “confined to his
      home”, the condition of the individual should be such that there exists a
      normal inability to leave home and that leaving home requires a
      considerable and taxing effort by the individual.

42 U.S.C. § 1395f(a).

      But even looking to this language we don’t see how CMS could have

rationally concluded that Caring Hearts knew or should have known individuals


                                         -8-
like L.Sm. didn’t qualify as homebound in 2008. To be sure, CMS points us to

the second sentence and argues that, to establish a patient is homebound, a

provider must prove both (1) that a patient “normal[ly]” cannot leave home even

with a supportive device and (2) that “leaving home requires a considerable and

taxing effort.” Just as its current regulations require. The trouble is, without the

added gloss of CMS’s current regulations, this reading of the statute is far from

obvious or obviously correct. Indeed, there exists another entirely plausible

reading of the statute, one that seems entirely consistent with CMS’s own earlier

regulations on the subject and one that Caring Hearts says (without dispute) it

held when those regulations controlled and it issued its services. Under this

reading it is the first sentence that does the real work — providing that someone

like L.Sm. “shall be considered” homebound because he has a condition that

restricts his ability to leave home “except with” (but for) a wheelchair or some

other form of assistance. Under this reading, the second sentence adds only

hortatory guidance about the sorts of people who will generally qualify as

homebound under the first sentence, but it doesn’t narrow the universe of people

encompassed by the first sentence.

      More than a few clues seem to support the reasonableness of Caring

Hearts’s reading. Not least of course the fact that CMS itself seemed to take this

very view at the time. But even beyond that, there’s a good deal of textual

evidence in the statute itself. Consider the verbs in the two sentences. The first

                                         -9-
sentence says a person “shall be” considered homebound if he or she cannot leave

without supportive assistance. Meanwhile, the second sentence says that certain

additional clues “should be” present, suggesting that the second sentence provides

useful but not necessarily dispositive tests for homebound status. Next consider

the fact that the first sentence suggests individuals shall be homebound either

because they need to use supportive devices to leave or because leaving is

medically contraindicated (because of, say, the risk of infection). In this way the

statute again seems to contemplate the possibility that some persons will be

considered homebound even if they don’t use supportive devices and can leave

the home without considerable or taxing effort. And consider, too, the statute’s

use of the term “condition.” The first sentence says the patient must suffer from a

“condition” that restricts his or her ability to leave home “except with” (but for)

the use of a supportive device. Assuming (as we usually do) that Congress means

the same thing when using the same word in adjoining sentences, see, e.g., Atl.

Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932), the second

sentence’s use of the term “condition” may be best read as meaning that the

patient’s condition normally renders him unable to leave home without

considerable and taxing effort but for his supportive device.

      The statutory sentences that follow these first two seem to provide yet

further support for Caring Hearts’s (and CMS’s erstwhile) understanding of the

law. They indicate that

                                         -10-
      [a]ny absence of an individual from the home attributable to the need to
      receive health care treatment, including regular absences . . . shall not
      disqualify an individual from being considered to be “confined to his
      home.” Any other absence of an individual from the home shall not so
      disqualify an individual if the absence is . . . of relatively short duration.
      [And] . . . any absence for the purpose of attending a religious service shall
      be deemed to be an absence of . . . short duration.

42 U.S.C. § 1395f(a). Notice that each of these sentences uses the more

mandatory “shall” instead of the more hortatory “should,” suggesting that

Congress well knew the difference when it chose in the second sentence alone to

use the less emphatic verb. And notice how each of these sentences seems to

undercut, too, the notion that a patient must “normally” be unable to leave the

home even with the use of a supportive device. After all, the third and fifth

sentences permit patients to leave every day for unlimited durations for certain

purposes (health care and religious services). And the fourth permits an unlimited

number of departures from the home for any purpose so long as the absences are

of “relatively short duration.”

      In saying as much as we do about the statute’s terms we take care to stress

what we haven’t said. We are not asked to pass upon the question whether the

statute unambiguously favors Caring Hearts and in that way forecloses CMS’s

recent regulations in a Chevron step one proceeding. Neither are we asked to

decide whether, if statutorily ambiguous, CMS’s recent regulations would qualify

as reasonable interpretations of the statute in a Chevron step two proceeding. It

may well be that our reasoning here would be relevant in deciding those

                                        -11-
questions, but the question we face today is more pedestrian and so is our

holding. Here we’re only asked to pass on CMS’s conclusion that Caring Hearts

knew or reasonably should’ve known its services were wrongly rendered in light

of the statute’s plain terms. And given the many textual clues supporting Caring

Hearts’s reading of the law, along with CMS’s own then-controlling

interpretation, we just don’t see how we might sustain the agency’s decision.

      In briefing before us CMS adds at this point one more point. The agency

notes that in litigation long ago it advocated an interpretation of the homebound

statute very similar to the one its regulations now adopt. See Labossiere v. Sec’y

of HHS, No. 90-150, 1991 WL 531922, at *4-5 (D. Vt. July 24, 1991). But the

CMS’s order under review didn’t cite Labossiere or suggest it placed Caring

Hearts on notice of the impropriety of its understanding of the statute. And of

course in administrative law the post-hoc rationalizations of counsel may not

provide grounds for sustaining an agency decision, only those grounds cited in the

agency’s order may. See SEC v. Chenery Corp., 318 U.S. 80, 94-95 (1943).

Besides, there may be a good reason why CMS made no mention of the case in its

order: under its own regulations its prior litigation positions are generally

insufficient to put a provider on notice of what is and isn’t compensable. See 42

C.F.R. § 411.406. Neither, for that matter, does it appear CMS’s position in

litigation always followed a straight course: as late as 2009 the agency seems to

have endorsed an approach (in at least one case) closer to the one advocated by

                                         -12-
Caring Hearts and found in the agency’s prior regulations than the one the

agency’s regulations now pursue. See Quality Home Health Servs., Inc.,

Medicare Appeals Council (Sept. 14, 2009).

      That still leaves the second group of cases the agency addressed. Here

CMS accepted or assumed that the patients Caring Hearts served were homebound

but held that the firm couldn’t show the physical therapy or skilled nursing

services it provided were “reasonable and necessary.” An illustrative patient here

might be L.D. She was a 71-year-old woman with diabetes, degenerative joint

disease, chronic obstructive pulmonary disease, and uncontrolled pain in her

lower back, hips, and right leg. She experienced fatigue and weakness after

walking 15 feet. By everyone’s admission, doctors prescribed physical therapy to

increase her strength and decrease her pain. And the record shows, too, that,

thanks to the physical therapy, L.D. increased her ability to walk by 50 percent

and experienced a decrease in her reported back pain from a 6 out of 10 to a 3 or

4 out of 10. Even so, CMS held, Caring Hearts couldn’t show that its physical

therapy services were reasonable and necessary because its documentation was

insufficient. The company’s “notes” didn’t contain details of progress made by

L.D. “at each visit” and didn’t contain enough “quantitative” data. See CMS Op.

at 26 (App. Vol. 2 at 249).

      To support its conclusion that Caring Hearts knew or should’ve known its

documentation was insufficient, CMS doesn’t cite or rest on the relevant statutory

                                       -13-
language as it did earlier on the homebound question. And it’s understandable

why. The relevant statute states simply that charges must be “reasonable and

necessary,” without offering providers any guidance as to what might and might

not qualify, let alone indicating what sort of documentation might be demanded.

See 42 U.S.C. § 1395y(a)(1)(A). Instead, to support its decision denying Caring

Hearts relief when it comes to this class of cases, the agency relies only on

regulations it issued under the statute’s auspices as evidence the company

should’ve known its paperwork wasn’t enough. In particular, when it comes to

physical therapy services the agency repeatedly cites and relies on 42 C.F.R.

§ 409.44(c)(2)(ii)(H)(4), though as its opinion progresses it seems to shorten its

citations for convenience’s sake, and by the time it reaches L.D. it speaks in

seeming shorthand of § 409.44(c). Compare CMS Op. at 19-20 (App. Vol. 2 at

242-43), with id. at 22, 26-27 (App. Vol. 2 at 245, 249-50).

      But here again the agency appears unfamiliar with its own regulations.

Back in 2008 there wasn’t any § 409.44(c)(2)(ii)(H)(4). In fact, there never was

and still isn’t. As best we can tell, the agency’s opinion means to rely on and

direct us to 42 C.F.R. § 409.44(c)(2)(i)(H)(4). But that provision was adopted in

November 2010, well after the events in question, and thanks to still more

regulatory activity it appears today not as (H)(4) but (F)(4). See 42 C.F.R.

§ 409.44 (2015). At any rate, as adopted in November 2010 the regulation surely

did require physical therapy providers to supply “[d]ocumentation of objective

                                        -14-
evidence or clinically supportable statements of expectation that the patient can

continue to progress toward the treatment goals and is responding to

therapy . . . .” Just the sort of thing the agency argues Caring Hearts failed to

supply. But here once more even the agency doesn’t suggest this regulation bore

retroactive effect. 75 Fed. Reg. 70372, 70461-63 (Nov. 17, 2010). And back in

2008, when Caring Hearts provided its services, § 409.44(c)(2)(i) entailed no

subdivisions, let alone spun out 22 separate enumerated subparagraphs all the way

to (H)(4) and beyond. Instead, back then § 409.44(c)(2)(i) consisted of just one

paragraph that spoke not at all of documentation and said only this: “services

must be considered under the accepted standards of medical practice to be a

specific, safe, and effective treatment for the beneficiary’s condition.” Rather

than requiring extensive paperwork, then, the regulation focused on whether the

provider’s physical therapy services were consistent with accepted contemporary

standards of medical practice. And that’s a condition no one disputes Caring

Hearts can satisfy: nowhere does CMS’s opinion suggest the doctors who

prescribed the care in this case defied accepted medical standards.

      Now we imagine CMS might reply along these lines. As we’ve seen, while

the agency cites repeatedly to § 409.44(c)(ii) — really (i) — (H)(4), as its opinion

progresses it refers instead to § 409.44(c) alone. And perhaps you might wonder

whether this change in citation should be taken as directing us to some other

subsection besides (H)(4), one that may have actually existed in 2008. But try as

                                         -15-
we might we cannot see how that might be the case. Each time CMS cites

§ 409.44(c) it does so (only) in the context of complaining about Caring Hearts’s

documentation, the very subject of (H)(4). In this light, it really does seem

CMS’s citations get shorter out of convenience rather than to convey a difference

of meaning. Certainly, too, if CMS citations do mean to refer to some other part

of § 409.44(c) that existed in 2008, we’re left guessing what part that might be

and we may not, of course, affirm an agency by guess. See Chenery, 318 U.S. at

94-95. Neither does even CMS’s brief in this court offer any such possibility.

Much to the contrary and like the agency’s order itself, the agency’s briefing on

appeal struggles to keep up with the right regulations, repeatedly citing and

quoting and relying on the 2010 provisions and (H)(4) just as its order did. See

Br. of Appellee at 37-38, 44, 49. In fact, CMS’s brief even goes so far as to

quote the 2010 language of (H)(4) with a mistaken parenthetical date reading

“(2008).” See id. at 38.

      The same story repeats itself when it comes to the skilled nursing services

Caring Hearts supplied. Once more, the agency based its denial of coverage for

most patients for want of sufficient documentation, stating that the skilled nursing

“notes” did not show that the beneficiaries “required or received the type of

services described by the regulations and applicable policy guidance.” CMS Op.

at 27 (App. Vol. 2 at 250). And once more, it is surely true that CMS’s current

regulations demand extensive documentation for every skilled nursing visit,

                                        -16-
stating that “the home health record must document the rationale that

demonstrates that there is a reasonable potential for a future complication or acute

episode.” MBPM, Ch. 7, § 40.1.2.1 (Rev. 179, Jan. 14, 2014) (emphasis added);

see also id. § 40.1.1. But once more, CMS does not suggest that these regulations

bear retroactive effect. And, once more, back in 2008 when the services were

provided the agency’s regulations were very different and far less demanding,

requiring the provider to show merely that “the patient’s medical history may

support the likelihood of a future complication or acute episode,” MBPM, Ch. 7,

§ 40.1.2.1 (Rev. 1, Oct. 1, 2003) (emphasis added), and that the skilled nursing

services provided were “reasonably expected to be appropriate treatment,” id.

§ 40.1.1. So once again the focus was less on exacting documentation than on

whether the services provided were consistent with prevailing medical practice.

And once again the agency supplies little reason to think the services provided

here were not at least that. See Dep’t of Health & Human Servs., Centers for

Medicare & Medicaid Servs., Change Request 8458 (Jan. 14, 2014)

(acknowledging that the agency’s new documentation requirements “introduce

additional guidance in this area”).

      At this point just one last wrinkle remains to unfold. In closing, CMS

suggests that § 1395pp allows it to relieve a provider of liability only when the

dispute concerns whether the provider’s services were “reasonable and necessary”

or when “custodial care” is at issue. See Br. of Appellee at 58 (citing 42 U.S.C.

                                        - 17 -
§ 1395pp(a)(1) and id. §§ 1395y(a)(1)(A), (9)). According to CMS, § 1395pp

“clearly do[es] not” allow it to forgive a provider’s putative errors in determining

whether a patient qualifies as homebound. Id.; see also id. at 13. So for at least

those cases where the homebound question is at issue, CMS says, it simply cannot

provide relief.

      But here too it seems CMS is unfamiliar with its own law. For while

§ 1395pp begins by affording the agency a power to forgive mistakes relating to

§ 1395y(a)(1) (“reasonable and necessary”) and § 1395y(a)(9) (“custodial care”),

the statute proceeds to afford the agency a parallel power for mistakes concerning

matters “described in subsection (g) of this section.” 42 U.S.C. § 1395pp(a)(1).

And that subsection expressly includes errors relating to whether “the individual

. . . is or was not confined to his home.” Id. § 1395pp(g)(1)(A) (citing id.

§§ 1395f(a)(2)(C) and 1395n(a)(2)(A)). Now maybe the agency’s confusion

stems from the fact that the statute at one time didn’t allow CMS to address errors

involving homebound status. But that was thirty years ago and it does seem

curious that the agency in this case proves so sensitive to its past law when it

doesn’t matter but not when it does. See Pub. L. No. 99-509, 100 Stat. 1991,

1991-92 (1986) (extending waiver of liability provisions to homebound denials).

      This case has taken us to a strange world where the government itself —

the very “expert” agency responsible for promulgating the “law” no less — seems

unable to keep pace with its own frenetic lawmaking. A world Madison worried

                                        - 18 -
about long ago, a world in which the laws are “so voluminous they cannot be

read” and constitutional norms of due process, fair notice, and even the separation

of powers seem very much at stake. But whatever else one might say about our

visit to this place, one thing seems to us certain: an agency decision that loses

track of its own controlling regulations and applies the wrong rules in order to

penalize private citizens can never stand. Indeed, we would not be surprised if —

should Caring Hearts bring an otherwise eligible application for costs and fees

under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) — CMS were to

accept on remand that its positions in this case were not “substantially justified.”

See Gatson v. Bowen, 854 F.2d 379, 380-81 (10th Cir. 1988); Estate of Smith v.

O’Halloran, 930 F.2d 1496, 1501-02 (10th Cir. 1991). The district court’s order

affirming the agency’s denial of relief under § 1395pp is vacated and this matter

is remanded to the district court with instructions to return the case to the agency

promptly for further proceedings consistent with this opinion.




                                        - 19 -
