Violate, incur sanctions, and exhaust: the steep price of judicial review under Illinois Council.
This Article analyzes the decision in Shalala v. Illinois Council on Long Term Care, Inc., in which the Supreme Court held that providers seeking to challenge Medicare regulations must first pursue those challenges through an administrative review process, except when application of this rule would result in "no review at all." In reaching this decision, the five-justice majority rejected the interpretation given to prior holdings by many commentators and circuits, and reasoned that it was appropriate to require providers to exhaust their administrative appeals even though the penalties for the challenged violations would not be stayed during the process. Given the nature of the administrative appeal process and the scope of penalties that may be assessed against Medicare providers, the author argues that the decision in Illinois Council evidences excessive deference towards the agency, or a disinclination on the part of the court towards entertaining Medicare lawsuits, either of which bodes ill for providers seeking judicial relief.
Burke
Virginia
V
Edwards & Angell, LLP, Providence, Rhode Island, USA.
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