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21A240 028 Jan 03 2022 Main Document 20220103123842921 21A240 Reliant Amicus In Support Of - Scotus
Full text
Nos. 21A240 & 21A241
IN THE
Supreme Court of the United States
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED
STATES OF AMERICA, ET AL.,
Applicants,
v.
STATE OF MISSOURI, ET AL.,
Respondents.
XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN
SERVICES, ET AL.,
Applicants,
v.
STATE OF LOUISIANA, ET AL.,
Respondents.
On Applications for Stays of Injunctions
MOTION OF RELIANT CARE MANAGEMENT
COMPANY, L.L.C. FOR LEAVE TO FILE BRIEF
AS AMICUS CURIAE AND BRIEF AS AMICUS
CURIAE IN SUPPORT OF RESPONDENTS
HARVEY M. TETTLEBAUM MICHAEL T. RAUPP
HUSCH BLACKWELL LLP Counsel of Record
235 E. High St., Suite 200 HUSCH BLACKWELL LLP
Jefferson City, MO 65102 4801 Main St.
Suite 1000
DAVID A. LOPEZ Kansas City, MO 64112
HUSCH BLACKWELL LLP (816) 983-8000
13330 California St. michael.raupp@
Suite 200 huschblackwell.com
Omaha, NE 68154
Counsel for Amicus Curiae
January 3, 2022
i
MOTION FOR LEAVE
TO FILE AMICUS CURIAE BRIEF
Pursuant to Supreme Court Rules 37.2 and 37.3,
Reliant Care Management Company, L.L.C.
(“Reliant”) respectfully moves this Court for leave to
file an amicus curiae brief in support of respondents.
Reliant manages 21 skilled nursing facilities
throughout the State of Missouri. Most of these
facilities are in rural communities. As detailed
throughout the accompanying brief, the vaccine
mandate that is the subject of these applications
creates an emergency for rural healthcare providers
throughout the Nation. Reliant can provide this
unique perspective to the Court, including data about
how the mandate—if implemented—will cause a
crisis of care for patients receiving critical treatment
in these already-underserved areas of the country.
Reliant filed an amicus brief highlighting these
issues before both the district court (Eastern District
of Missouri) and the court of appeals (Eighth Circuit).
The district court properly enjoined the government’s
overreach, and the court of appeals correctly denied
the government’s attempt to stay that injunction
pending appeal.
This Court should follow the same path here, and
Reliant’s proposed brief will aid the Court in its
resolution of the applications. Further, the proposed
brief presents information that is in the unique
possession of Reliant and not included in the parties’
briefing.
On December 23, 2021, counsel for Reliant
notified the parties of its intent to file this motion
and proposed amicus brief. Applicants take no
position on this motion. Respondents in 21A240
ii
consent to the filing of this brief. Respondents in
21A241 consent to the filing of all timely-filed amicus
briefs.
Wherefore, Reliant respectfully requests that this
Court grant this motion for leave to file this amicus
brief in support of respondents.
Respectfully submitted,
HARVEY M. TETTLEBAUM MICHAEL T. RAUPP
HUSCH BLACKWELL LLP Counsel of Record
235 E. High St., Suite 200 HUSCH BLACKWELL LLP
Jefferson City, MO 65102 4801 Main St.
Suite 1000
DAVID A. LOPEZ Kansas City, MO 64112
HUSCH BLACKWELL LLP (816) 983-8000
13330 California St. michael.raupp@
Suite 200 huschblackwell.com
Omaha, NE 68154
Counsel for Amicus Curiae
January 3, 2022
iii
TABLE OF CONTENTS
Page
MOTION FOR LEAVE TO FILE AMICUS
CURIAE BRIEF ................................................... i
TABLE OF AUTHORITIES ....................................... v
INTEREST OF AMICUS CURIAE ............................ 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 3
I. CMS’s Vaccine Mandate Is Causing
An Emergency Within the
Healthcare System. .................................... 3
II. Reliant’s Experience Supports the
District Court’s Preliminary
Injunction and Illustrates Why This
Court Should Deny These
Applications. ............................................... 6
A. Reliant’s experience
demonstrates why the States
are likely to prevail on their
claim that CMS illegally
promulgated its mandate
without notice and comment. ............. 7
B. The dire situation
demonstrated by Reliant
bolsters the States’ description
of irreparable harm and
undermines the government
suggestion of any harm it
claims. ............................................... 11
iv
C. The severity of irreparable
harm greatly outweighs any
procedural harm to CMS
resulting from an order
enjoining an illegal interim
rule. ................................................... 12
D. The district court’s
preliminary injunction of
CMS’s mandate furthers the
public interest. .................................. 13
CONCLUSION.......................................................... 14
v
TABLE OF AUTHORITIES
Page(s)
Cases
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ............................................... 12
Iowa League of Cities v. E.P.A.,
711 F.3d 844 (8th Cir. 2013) ................................. 12
Make The Rd. New York v. Wolf,
962 F.3d 612 (D.C. Cir. 2020) ................................. 9
Whole Woman’s Health v. Jackson,
141 S. Ct. 2494 (2021) ............................................. 6
Rules
Sup. Ct. R. 37.2 ............................................................ i
Sup. Ct. R. 37.3 ............................................................ i
Sup. Ct. R. 37.6 ........................................................... 1
Additional Authorities
CMS, Ref: QSO-20-39-NH,
Memorandum: Nursing Home
Visitation – COVID-19 (rev. Nov. 12,
2021), available at
https://www.cms.gov/files/document/q
so-20-39-nh-revised.pdf ........................................... 8
vi
Eli Rosenberg & Aaron Gregg, Some
Hospitals Cancel Worker Vaccine
Requirements With Biden Rule Tied
Up In Courts, Washington Post (Dec.
14, 2021), available at
https://www.washingtonpost.com/busi
ness/2021/12/14/vaccine-
requirements-hospital-workers/ ........................... 10
Missouri Dept. of Health and Senior
Services, Emergency Amendment to
19 CSR 30-82.010, General Licensure
Requirements (Nov. 10, 2021),
available at
https://www.sos.mo.gov/CMSImages/
AdRules/main/EmergenciesforInterne
t/19c30-82.010IE.pdf ............................................... 8
INTEREST OF AMICUS CURIAE1
Reliant Care Management Company, L.L.C.
(“Reliant”) manages 21 skilled nursing facilities
throughout the State of Missouri. Most of these
facilities are in rural communities. As discussed in
greater detail throughout this brief, the patient
population in Reliant managed facilities is unique
among skilled nursing providers in that they have a
large percentage of “dual diagnosis” patients: those
who while requiring treatment for their medical
conditions also have behavioral health conditions
that require treatment. The facilities available to
provide care to this dual-diagnosis population are
few and far between.
Reliant has an extraordinary interest in the
outcome of this litigation, as the ongoing operation of
the skilled nursing facilities Reliant manages
depends on it. The patients Reliant managed
facilities serve are also placed at great risk by the
cascading impacts of the vaccine mandate.
Reliant can provide the Court with a useful and
unique perspective about the actual effect this
mandate is having on the ground within healthcare
facilities operating throughout Missouri, the state in
which this case originated. Specifically, with regard
to the instant applications, Reliant can add on-the-
ground context as to why the Court should leave the
district court’s preliminary injunction intact pending
appeal in the Eighth Circuit and any subsequent
proceedings in this Court.
1 Pursuant to Rule 37.6, Reliant certifies that no counsel
for a party authored this brief in whole or in part, and no
person other than amicus curiae or its counsel made a monetary
contribution to the brief’s preparation or submission.
2
SUMMARY OF ARGUMENT
Epitomizing irony, the Centers for Medicare &
Medicaid Services (“CMS”) relied on the existence of
a purported “emergency” to justify its jettisoning of
notice-and-comment rulemaking to impose a COVID-
19 vaccine mandate for every healthcare worker in
America. In reality, the only “emergency” is the one
created by this illegal federal diktat. Healthcare
providers—especially in rural Missouri—are in crisis,
and they face the impending loss of huge swaths of
their workforce because of CMS’s overreach. That
loss of staff will close healthcare facilities and reduce
care available to Missourians, imperiling vulnerable
patients with no alternatives. Those patients and
the public will suffer, immediately, if the district
court’s injunction is lifted or stayed and the federal
government’s mandate goes into effect.
The raw numbers are staggering, especially in
rural communities. Reliant managed facilities have
1,723 employees. Despite Reliant’s encouragement
for all facility employees to become vaccinated, only
661 have done so. Needless to say, if the mandate
goes into effect, that situation is unsustainable.
Reliant predicts that approximately 11 of its 21
managed facilities will close immediately, leaving
those vulnerable patients with nowhere to turn.
This is a story playing out across the healthcare
system in rural America. It’s the story the
government could have—and should have—heard
through notice and comment. Legal requirements
standing in the way of the policy narrative, however,
proved too inconvenient, so rulemaking by fiat
replaced the reasoned, nuanced process
contemplated by the APA.
3
This Court should deny the applications.
ARGUMENT
The district court issued a thorough and well-
reasoned preliminary injunction of CMS’s lawless
vaccine mandate. App. 5a-36a. That mandate was—
and the uncertain prospect of its return still is—
wreaking havoc upon healthcare providers, especially
those operating in rural communities. The
impending results are disastrous for patients and the
public. Reliant seeks to provide the Court a glimpse
into the immediate real-world implications of CMS’s
ill-advised mandate if the district court’s injunction
were undone.
The mandate was, of course, promulgated without
the notice-and-comment process ordinarily required
for such sweeping regulations. That failure by the
government to account for the deleterious effects of
its rule is at the heart of Reliant’s argument to this
Court. Reliant should have had the opportunity to
present all of this information to CMS through the
notice-and-comment process. But, as the district
court recognized, CMS deprived Reliant (and
everyone else) of this opportunity. Reliant’s
experience attempting to implement the vaccine
mandate supports each of the factors considered for a
preliminary injunction (and also for denying these
applications), and this Court should therefore reject
the government’s applications for stays of the
injunctions.
I. CMS’s Vaccine Mandate Is Causing An
Emergency Within the Healthcare System.
CMS’s imposition of the vaccine mandate has
created chaos within Missouri’s healthcare system,
as Reliant’s experience readily illustrates. As
4
discussed, Reliant manages 21 skilled nursing
facilities throughout the State, most of which are
located in rural communities. These Reliant
managed facilities employ 1,723 employees. As of
the date of this filing, 661 of those employees are
vaccinated; 1,062 are not. While Reliant has
encouraged all facility employees to become
vaccinated, those not yet vaccinated have indicated
they will not become so. This places Reliant in a dire
situation due to the still-looming CMS mandate.
Early indications confirm the impending
catastrophe. On November 17, 2021, Reliant began
in-service education on the vaccine mandate with all
facility staff. Within 24 hours, Reliant received three
formal resignations: the Directors of Nursing at two
separate facilities, and a Licensed Nursing Home
Administrator at a third facility. The very next day,
November 18, approximately 15 employees at the
various facilities did not show up for work. And of
the 1,062 employees who remain unvaccinated,
roughly 1,000 have voiced that they do not intend to
receive the vaccine and are considering finding other
employment or leaving the healthcare field
altogether.
CMS’s mandate would place approximately 60%
of Reliant’s managed workforce in jeopardy, which
will inevitably lead to facility closures in
communities that simply cannot afford it. These
daunting statistics, and the risks they pose to the
continuity of healthcare in vulnerable communities,
exemplify the situation playing out across Missouri
right now and further bolster the district court’s
injunction. But with respect to Reliant, these figures
tell only half of the story.
5
Unlike most skilled nursing facilities, Reliant
managed facilities have a large population of dual-
diagnosis patients—those who suffer from both a
behavioral2 diagnosis and a medical3 diagnosis. It is
uncommon for skilled nursing facilities to provide
care for these patients, because the cost of doing so is
high. Indeed, Reliant managed facilities spend about
$175,000 annually on specialized training costs alone
to be able to provide the specific care these patients
require. Further, the length of stay for dual-
diagnosis patients is approximately 3-5 years within
Reliant managed facilities. It is more expensive, and
more complex, for skilled nursing facilities to care for
these patients. Accordingly, few do.
Right now, as the Court considers these
applications, approximately 2,261 dual-diagnosis
patients are receiving care in Reliant’s 21 managed
facilities. Those patients have nowhere else to turn.
Based on current projections, Reliant estimates that
11 of its 21 managed facilities will close due to the
2 The “behavioral” diagnoses of these dual-diagnosis patients
include: Attention Deficit Disorder, Oppositional Defiance
Disorder, Autism, Anxiety Disorder, Depression, Major
Depressive Disorder, Bipolar Disorder, Obsessive Compulsive
Disorder, Post-traumatic Stress Disorder, Schizophrenia,
Paranoid Schizophrenia, Schizoaffective Disorder, Borderline
Personality Disorder, Mild Intellectual Disability, and
Antisocial Personality Disorder.
3 The “medical” diagnoses of these dual-diagnosis patients
include: Hypertension, Chronic Obstructive Pulmonary Disease,
Chronic Kidney Disease, Lymphedema, Encephalopathy, Hx.
Myocardial Infarct, Dementia, Epilepsy, Osteoarthritis,
Diabetes Mellitus, Hyponatremia, Cerebral Infarction, Cancer,
Congestive Heart Failure, Cerebrovascular Disease, Dementia,
Dementia with Behavioral Disturbance, Cerebral Palsy, Sleep
Apnea, Alzheimer’s Disease, and Traumatic Brain Injury.
6
staffing shortages caused by the government’s
mandate. Reliant has identified no other facilities in
those markets that can care for a dual-diagnosis
patient. Those patients are therefore left with only
one (entirely inadequate) option—try to get a bed in
a local emergency room. (Assuming, of course, that
those providers are not also debilitated by the
mandate or overwhelmed by other transfer patients
from other mandate-shuttered facilities, an
exceedingly unlikely scenario.)
CMS’s vaccine mandate is disastrous, and that
characterization is not hyperbole. Missouri
healthcare workers, patients, and communities will
needlessly suffer absent the injunction of CMS’s
overreach. This is the only emergency that exists,
and it is one of CMS’s own making.
II. Reliant’s Experience Supports the District
Court’s Preliminary Injunction and
Illustrates Why This Court Should Deny
These Applications.
The unfolding emergency Reliant describes above
bolsters the district court’s justifications for the
preliminary injunction under each of the relevant
factors. It also illustrates why this Court should
deny the applications. “To prevail in an application
for a stay or an injunction, an applicant must carry
the burden of making a ‘strong showing’ that it is
‘likely to succeed on the merits,’ that it will be
‘irreparably injured absent a stay,’ that the balance
of the equities favors it, and that a stay is consistent
with the public interest.” Whole Woman’s Health v.
Jackson, 141 S. Ct. 2494, 2495 (2021) (citations
omitted). Consideration of each factor illustrates
7
that these applications should be denied and that the
district court’s injunction is correct.
A. Reliant’s experience demonstrates why
the States are likely to prevail on their
claim that CMS illegally promulgated its
mandate without notice and comment.
To be clear, it is the federal government’s burden
here to make a strong showing that it is likely to
prevail on the merits of this litigation. Analysis of
this factor, however, illustrates the opposite—the
States are likely to prevail.
The States’ oppositions to these applications ably
discuss the multiple grounds upon which the States
will succeed in establishing that CMS’s vaccine
mandate is illegal and must be permanently enjoined.
Reliant will not belabor those arguments here. The
district court agreed and specifically identified the
robust lawlessness of the government’s departure
from notice and comment requirements. App. 12a-
17a. Three brief points are worth additional mention.
1. As the States describe, CMS discarded the
requirement that its rule go through the notice-and-
comment process by claiming it would be
“impractical and contrary to the public interest” to do
so. Specifically, CMS claimed that the urgent
emergency created by COVID-19 and the Delta
variant made it impossible to use the required
process. To begin, the government’s own conduct
directly undermines its rationale. Instead of acting
with urgency, the government delayed for months
after announcing the mandate, undermining any
suggestion that an “emergency” compelled its action.
In any event, as Reliant described above, the only
true emergency is the one created by CMS’s mandate.
8
Further, CMS’s “emergency” premise for this
mandate is upended by its own actions. On
November 12, 2021—exactly one week after enacting
the vaccine mandate—CMS itself revised its 2020
pandemic guidance for nursing home visitation,
specifically opening facility visitation “for all
residents at all times” by family and friends who are
not required to be vaccinated. CMS, Ref: QSO-20-39-
NH, Memorandum: Nursing Home Visitation –
COVID-19 (rev. Nov. 12, 2021), available at
https://www.cms.gov/files/document/qso-20-39-nh-
revised.pdf. The “emergency” situation at nursing
facilities was apparently sufficiently ameliorated for
CMS’s experts to fully open those facilities for
visitation, thus undermining any notion that an
“emergency” exists to justify the sweeping mandate
at issue here.
To the contrary, an emergency now exists, but
only from CMS’s ill-conceived mandate. This is
evidenced by the fact that States like Missouri must
react with emergency regulations of their own to
provide nursing facilities with regulatory direction as
to how they may conduct emergency closures because
of the CMS mandate, but without having to
relinquish their licenses. See, e.g., Missouri Dept. of
Health and Senior Services, Emergency Amendment
to 19 CSR 30-82.010, General Licensure
Requirements (Nov. 10, 2021), available at
https://www.sos.mo.gov/CMSImages/AdRules/main/E
mergenciesforInternet/19c30-82.010IE.pdf. The
“emergency” imagined by CMS did not exist, but its
clumsiness has certainly created one for healthcare
providers like Reliant and their on-the-ground State
regulators.
9
That the CMS-created emergency has been
temporarily curtailed is due only to orders like the
district courts’ below. If these orders were lifted or
stayed, the emergency conditions would snap back
into reality for rural healthcare providers like
Reliant, as well as their patients.
2. Reliant should have had the opportunity to
present to CMS all of the grave consequences that
would result from a vaccine mandate. CMS deprived
Reliant, and all healthcare providers nationwide, of
that opportunity. “[A] central purpose of notice-and-
comment rulemaking is to subject agency decision-
making to public input and to obligate the agency to
consider and respond to the material comments and
concerns that are voiced.” Make The Rd. New York v.
Wolf, 962 F.3d 612, 634 (D.C. Cir. 2020). Had CMS
heard of the chaos unfolding across the healthcare
industry—especially in rural communities—as a
result of the vaccine mandate, the Administration
would have had the opportunity to change course.
(Or, at the very least, CMS would have had to
explain why it chose to disregard the devastating
consequences.) Unfortunately, CMS illegally
withheld that process and deprived the American
public of notice and comment’s unquestionable
benefits.
3. Finally, the government makes much of the
support it believes it has from “millions of workers
throughout the Nation’s healthcare industry” by
virtue of public statements from healthcare
associations. Application 33. (The government’s
proposed amici make similar suggestions.) Yet
perhaps the actions healthcare organizations
actually take is better evidence of the rule’s effects
than are organized public-relations statements.
10
Tellingly, when the district courts below entered
their injunctions, some of the largest healthcare
organizations in the Nation—the Cleveland Clinic,
AdventHealth, Tenet Healthcare, and HCA
Healthcare—withdrew the requirement for their
employees to become fully vaccinated. Eli Rosenberg
& Aaron Gregg, Some Hospitals Cancel Worker
Vaccine Requirements With Biden Rule Tied Up In
Courts, Washington Post (Dec. 14, 2021), available at
https://www.washingtonpost.com/business/2021/12/1
4/vaccine-requirements-hospital-workers/ (last
visited Dec. 27, 2021). These healthcare systems
alone “comprise more than 300 hospitals and 500,000
employees.” Ibid.
To be clear, this rule’s ultimate popularity has
nothing to do with its propriety under the APA. But
the government’s suggestion that this mandate is
overwhelmingly popular in the healthcare industry is,
at best, illusory. That the mandate has been the
subject of such intense national controversy is
further evidence of why it should have been
subjected to the notice-and-comment process.
* * *
Again, the States provide many convincing
arguments on the merits that Reliant need not
reiterate here. Those arguments are only bolstered
by Reliant’s on-the-ground experience and the
federal government’s failure to make a strong
showing it is likely to succeed on the merits of this
lawsuit.
11
B. The dire situation demonstrated by
Reliant bolsters the States’ description of
irreparable harm and undermines the
government suggestion of any harm it
claims.
Reliant’s experience also bolters the States’
articulation of irreparable harm in two ways.
First, the States asserted their parens patriae
interest in protecting the health and wellbeing of
their citizens. Reliant provides a concrete example of
how that health and wellbeing is directly jeopardized
by CMS’s actions and the substantial risk of facilities
closing. Indeed, the over 2,000 dual-diagnosis
patients receiving care from Reliant have nowhere
else to turn. Further, Reliant is far from the only
healthcare provider operating in similar markets;
this is a story repeating itself throughout rural
America, with the States’ citizens paying the price
with their own health and wellbeing.
Second, the States assert their own direct
irreparable harm because they operate certain state-
run healthcare facilities. To that extent, Reliant
serves as yet another data point about what is
actually happening on the ground, and it proves true
the States’ description of the disruption of care in
state-run healthcare facilities if the vaccine mandate
is not enjoined. That disruption also highlights the
true interconnected nature of the healthcare system
today. Once again, Reliant is on pace to require
closure of at least 11 of its 21 managed facilities and
has not identified a single facility that could even
potentially serve as an alternative care site for its
dual-diagnosis patient population. Not to mention, of
course, that all proximate facilities are most likely
12
facing identical concerns and staffing problems. Now,
as the States ably describe, even the safety net of
state-run facilities is placed in jeopardy by CMS’s
mandate.
The harms articulated by the States—and
recognized by the district court—are irreparable in
the truest sense of the word. Once facilities close
and patients are left with nowhere to turn, their
health and wellbeing will immediately suffer. The
situation is especially dire in the many rural
communities Reliant serves. While those
communities may not have been front-of-mind at
CMS when crafting its edict—or at the White House
that directed it—notice and comment would have
raised these concerns and avoided the irreparable
harm that will now occur absent the district court’s
injunctions. That is precisely the point of the APA’s
comment requirement: to force a distant bureaucracy
to consider and account for the impact a proposed
rule will have on those bound by it. See, e.g., Iowa
League of Cities v. E.P.A., 711 F.3d 844, 871 (8th Cir.
2013) (quoting Chrysler Corp. v. Brown, 441 U.S. 281,
316 (1979) (“In enacting the APA, Congress made a
judgment that notions of fairness and informed
administrative decisionmaking require that agency
decisions be made only after affording interested
persons notice and an opportunity to comment.”)).
C. The severity of irreparable harm greatly
outweighs any procedural harm to CMS
resulting from an order enjoining an
illegal interim rule.
When evaluating the government’s stay request,
this Court is to next weigh this irreparable harm
against any injury that will be inflicted upon other
13
parties to the litigation. As the district court easily
concluded, that balance is nowhere close. On one
side of the ledger sit the lives and health of countless
patients receiving care today. And on the other side
of the ledger sits CMS’s bureaucratic expediency. All
that is at risk for CMS is the need to go back to the
drawing board and further its policy goals in a legal
manner and under the regular order of the APA. The
form that must take, of course, is ultimately for the
courts to decide. But no matter whether it is through
notice-and-comment rulemaking, or by working with
States to enact reasonable and workable solutions,
the additional work for CMS pales in comparison to
the impending collapse of healthcare delivery within
certain segments of the market.
D. The district court’s preliminary
injunction of CMS’s mandate furthers the
public interest.
Likewise, and for all reasons articulated
throughout this brief, the district courts’ preliminary
injunctions are in the public interest. As with its
analysis of the other injunction factors, the Missouri
district court’s identification of the public interest in
this case was manifestly correct:
The Court finds that in balancing the equities,
the scale falls clearly in favor of healthcare
facilities operating with some unvaccinated
employees, staff, trainees, students, volunteers,
and contractors, rather than the swift,
irremediable impact of requiring healthcare
facilities to choose between two undesirable
choices—providing substandard care or providing
no healthcare at all.
App. 34a-35a.
14
The decrease in available care that will result
from CMS’s mandate is untenable and unsustainable.
Even assuming some form of a vaccine mandate is
ever a desirable way to achieve the government’s
goal of a higher vaccination rate, the solution cannot
cause more harm than the problem. That is exactly
what is happening.
Rural communities are left holding the bag, as
CMS did not even attempt to tailor its mandate to
varied geographies and settings. (Again, it could
have done so with the benefit of notice and comment,
as it would have had the benefit of frontline data and
information.) Reliant’s experience shows what the
outcome of CMS’s overreach will be: fewer healthcare
workers; closed facilities; worse health outcomes.
Most troublingly, it is not a company, or even an
employee, that will pay the ultimate price for CMS’s
reckless mandate. Rather, it is the most vulnerable
among us, in the most remote communities. Patients
with nowhere left to turn—like the dual-diagnosis
patients in Reliant’s facilities—are the ones who will
truly suffer. The district court wisely avoided that
unconscionable outcome, and this Court should not
reverse course.
CONCLUSION
This Court should deny the applications.
15
Respectfully submitted,
HARVEY M. TETTLEBAUM MICHAEL T. RAUPP
HUSCH BLACKWELL LLP Counsel of Record
235 E. High St., Suite 200 HUSCH BLACKWELL LLP
Jefferson City, MO 65102 4801 Main St.
Suite 1000
DAVID A. LOPEZ Kansas City, MO 64112
HUSCH BLACKWELL LLP (816) 983-8000
13330 California St. michael.raupp@
Suite 200 huschblackwell.com
Omaha, NE 68154
Counsel for Amicus Curiae
January 3, 2022
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