Medicare reimbursement for hospice care; Recouping overpayment; Coverage determination; Substantial evidence; Safe harbor provision (42 USC § 1395pp(a)(2)); 42 CFR § 411.406(e); Interpretation of a Medicare notice; Reasonableness; Local Coverage Determination (LCD) 33393 (clinical diagnoses, statuses, signs, symptoms, & characteristics showing a patient is terminally ill); Administrative law judge (ALJ)

The court held that substantial evidence supported the ALJ’s determination that Medicare did not cover certain hospice services plaintiff-In Home provided to patients. But it concluded that the ALJ did not use the correct standard in applying the Medicare statute’s safe harbor when he found that In Home was financially liable for the disputed services. Thus, it vacated the district court’s decision affirming the ALJ’s ruling, and remanded “with instructions to return the case to the ALJ to apply the safe harbor to each of the disputed coverage periods using the legal standard set out” by the court. Contractors reviewing Medicare claims rely on LCDs, “which provide notice of how the contractor will determine whether an item or service” meets Medicare’s “reasonable and necessary” standard. The relevant one here, LCD 33393, “sets forth clinical diagnoses, statuses, signs, symptoms, and characteristics that support a terminal prognosis.” The court agreed “with the district court that substantial evidence supported the ALJ’s determination that Medicare did not cover the disputed claims.” It noted that “the ALJ examined the relevant data from the administrative record and provided an explanation of his decision that included a rational connection between the record facts and the coverage determination.” As to application of the safe harbor provision, the court considered how to determine when a provider “neither knew, nor could reasonably have known that Medicare did not cover an item or service.” It held that, “in applying the safe harbor, an ALJ must consider whether a provider could reasonably have interpreted the relevant notices or local standards of practice as covering each denied claim.” It found that, “if a provider reasonably—albeit incorrectly—interpreted the Medicare notices and standards as covering a patient’s claim, then the safe harbor saves them from liability.” As the court had not previously explained the safe harbor’s scope, “the ALJ did not employ this standard” here. It noted that “the ALJ should not have just asked whether In Home knew the LCD existed. Rather, the proper inquiry was whether in good faith, [it] could reasonably have believed that the patients were terminally ill as defined by LCD 33393.”

42 USC § 1983; Younger abstention; Younger v Harris; State contempt order; Domestic relations; Preliminary injunction; Mootness; Capable of repetition yet evading review exception; New Orleans Pub Serv, Inc v Council of City of New Orleans (NOPSI) categories; Middlesex factors; Middlesex Cnty Ethics Comm v Garden State Bar Ass’n; First Amendment; Monell claim; Monell v Department of Soc Servs of City of NY; Final order; FedRCivP 54(b); Appellate jurisdiction

The court held that Younger abstention supported denial of plaintiff-appellant’s request for injunctive relief against a state contempt order and that it lacked jurisdiction to review dismissal of her Monell claim. Plaintiff sued her ex-spouse and municipal defendants after custody-related disputes, then sought a TRO and preliminary injunction staying an Ohio domestic-relations contempt order. On appeal, the court first held that the injunction issue was not moot because the fine and redaction requirements were completed before appellate review, and the dispute was “capable of repetition yet evading review.” The court next held that Younger applied because state-court contempt proceedings are “prototypical examples” of proceedings involving orders “uniquely in furtherance of the state courts’ ability to perform their judicial functions.” It also found the Middlesex factors satisfied because the domestic-relations case remained open, Ohio had an important interest in enforcing contempt orders and in child-custody proceedings, and Ohio courts were presumed able to address plaintiff’s constitutional arguments. The court rejected plaintiff’s claimed exception based on the First Amendment, reasoning that the flagrantly-unconstitutional exception is “a high bar” and narrowly applied. Finally, the court dismissed the Monell appeal because the district court’s dismissal of the City was not final, the remaining claims were still in discovery, and “‘the denial of a municipal-liability claim is not immediately appealable[.]’” Affirmed in part and dismissed in part.

42 USC § 1983; Younger abstention; Younger v Harris; State contempt order; Domestic relations; Preliminary injunction; Mootness; Capable of repetition yet evading review exception; New Orleans Pub Serv, Inc v Council of City of New Orleans (NOPSI) categories; Middlesex factors; Middlesex Cnty Ethics Comm v Garden State Bar Ass’n; First Amendment; Monell claim; Monell v Department of Soc Servs of City of NY; Final order; FedRCivP 54(b); Appellate jurisdiction

The court held that Younger abstention supported denial of plaintiff-appellant’s request for injunctive relief against a state contempt order and that it lacked jurisdiction to review dismissal of her Monell claim. Plaintiff sued her ex-spouse and municipal defendants after custody-related disputes, then sought a TRO and preliminary injunction staying an Ohio domestic-relations contempt order. On appeal, the court first held that the injunction issue was not moot because the fine and redaction requirements were completed before appellate review, and the dispute was “capable of repetition yet evading review.” The court next held that Younger applied because state-court contempt proceedings are “prototypical examples” of proceedings involving orders “uniquely in furtherance of the state courts’ ability to perform their judicial functions.” It also found the Middlesex factors satisfied because the domestic-relations case remained open, Ohio had an important interest in enforcing contempt orders and in child-custody proceedings, and Ohio courts were presumed able to address plaintiff’s constitutional arguments. The court rejected plaintiff’s claimed exception based on the First Amendment, reasoning that the flagrantly-unconstitutional exception is “a high bar” and narrowly applied. Finally, the court dismissed the Monell appeal because the district court’s dismissal of the City was not final, the remaining claims were still in discovery, and “‘the denial of a municipal-liability claim is not immediately appealable[.]’” Affirmed in part and dismissed in part.

Competency to stand trial; People v Kammeraad; MCL 330.2020(1); The trial court’s failure to sua sponte order a competency evaluation; Ineffective assistance of counsel; Failure to request a competency evaluation; Waiver of the right to counsel; People v Russell; MCR 6.005(D); Joinder of defendant’s cases; MCR 6.120(B); People v Abraham

The court held that the trial court did not err in failing to sua sponte order a competency evaluation of defendant, and that his trial attorneys were not ineffective for failing to request one. It also held that the trial court did not err in accepting his waiver of the right to counsel, or in determining that joinder of his cases was appropriate. He was convicted in one case of first-degree murder, FIP, and felony-firearm. In the other case he was convicted of possession with intent to deliver less than 50 grams of cocaine, CCW, and third-degree fleeing and eluding. The court previously remanded the “case ‘for a competency evaluation, evidentiary hearing, and decision regarding whether defendant was competent to stand trial or waive his right to counsel.’” The trial court on remand ultimately determined that he “‘was competent to stand trial and to waive his right to counsel.’” As to the failure to sua sponte order a competency evaluation, on remand the trial court “extensively considered the procedural facts of this case, the prior court’s analysis and reasoning in letting defendant represent himself, and” the opposing reports of two doctors. “Even considering the forensic experts’ disagreement, [it] determined that defendant failed to overcome the presumption that he was competent to stand trial.” The court was likewise “not persuaded that a bona fide doubt was established sufficient to question defendant’s competency at the time of trial.” And because he failed to make such a showing, he necessarily could not show that his various trial attorneys “were ineffective for failing to request a competency evaluation.” As to his waiver of counsel, on several occasions “the trial court repeatedly warned defendant of the dangers of self-representation; inquired whether that was nonetheless [his] desire; admonished him that disruptions to court proceedings would not be tolerated; and reiterated that [he] would be held to the same standards as an attorney, even going so far as to quiz” him about “aspects of trial procedure and the rules of evidence. Each time, [he] definitively expressed his desire to represent himself, even in the face of the trial court informing defendant—out of the presence of the jury—of what a poor job he was doing. Further, [it] complied with MCR 6.005(D) and had defense counsel remain as standby counsel.” Affirmed.

Sentencing; Career-offender guideline; USSG § 4B1.1; Controlled-substance offense; § 4B1.2(b); State-law convictions; Sentencing Commission authority; 28 USC § 994(h); Distinguishing United States v LaBonte; Loper Bright Enters v Raimondo; Downward variance; Procedural reasonableness; Substantive reasonableness; 18 USC § 3553(a)

The court held that the career-offender guideline validly includes state-law drug convictions and that defendant’s within-guidelines sentence was procedurally and substantively reasonable. Defendant pled guilty to a federal fentanyl offense, conceded he was “technically a career offender,” and sought a downward variance based partly on a policy disagreement with the career-offender guideline. On appeal, the court rejected his claim that the Sentencing Commission exceeded its authority by including state-law drug convictions. It reasoned that the phrase offenses “described in” federal drug statutes refers to conduct, not only convictions under those statutes, and “covers state-law offenses which map onto their federal counterparts.” The court also held that even if § 994(h) were read narrowly, it would set only a floor for required predicate offenses, “not a ceiling,” and the Commission could include state-law predicates under its general guideline authority. The court next rejected defendant’s procedural reasonableness challenge because the district court “exhaustively considered the § 3553(a) factors,” including his upbringing, brain development, criminal history, offense seriousness, fentanyl trafficking, deterrence, and public safety. Finally, the court held that the bottom-of-guidelines sentence was substantively reasonable, noting within-guidelines sentences receive a presumption of reasonableness and the court was not required to adopt defendant’s preferred view of Commission reports or proposed amendments. Affirmed.

Freedom of Information Act (FOIA); Body-camera footage; Law Enforcement Body-Worn Camera Privacy Act; MCL 780.315; Law-enforcement-proceedings exemption; MCL 15.243(1)(b)(i); Fair-trial exemption; MCL 15.243(1)(b)(ii); Privacy exemptions; MCL 15.243(1)(a) & (b)(iii); Redaction; Completed ballots; Witness interviews; Personal contact information; Fees, costs, & disbursements; Punitive damages; Civil fines

The court held that the trial court erred by withholding all requested body-camera footage under the law-enforcement-proceedings exemption, but some portions were exempt under privacy exemptions. Plaintiff-journalist sought body-camera footage from an election-day arrest at a polling place. The trial court granted defendant summary disposition after in camera review. On appeal, the court first held that the FOIA request sufficiently identified the videos because a requester need only describe records “sufficiently to enable the public body to find” them. The court next held that defendant failed to justify the law-enforcement and fair-trial exemptions. It reasoned that a public body must provide “complete particularized justification,” not a “simple repetition of statutory language,” and defendant’s affidavit did not explain how disclosure would interfere with proceedings or deny a fair trial. The court then held that some privacy exemptions applied. Personal contact information was exempt, and witness interviews contained “embarrassing or intimate details” about the witnesses’ actions and personal lives. But voters visible in the background were not exempt because a voter’s identity is not “information of a personal nature,” and only how a person voted is private. The court remanded for the trial court to determine whether completed ballots appear in the footage because a completed ballot is “private or confidential information.” Finally, the court held that plaintiff partially prevailed and the trial court must consider costs, but punitive damages and civil fines were unwarranted because defendant’s mistaken denial was not arbitrary, capricious, willful, or in bad faith. Affirmed in part, reversed in part, and remanded.

Medicare reimbursement for hospice care; Recouping overpayment; Coverage determination; Substantial evidence; Safe harbor provision (42 USC § 1395pp(a)(2)); 42 CFR § 411.406(e); Interpretation of a Medicare notice; Reasonableness; Local Coverage Determination (LCD) 33393 (clinical diagnoses, statuses, signs, symptoms, & characteristics showing a patient is terminally ill); Administrative law judge (ALJ)

The court held that substantial evidence supported the ALJ’s determination that Medicare did not cover certain hospice services plaintiff-In Home provided to patients. But it concluded that the ALJ did not use the correct standard in applying the Medicare statute’s safe harbor when he found that In Home was financially liable for the disputed services. Thus, it vacated the district court’s decision affirming the ALJ’s ruling, and remanded “with instructions to return the case to the ALJ to apply the safe harbor to each of the disputed coverage periods using the legal standard set out” by the court. Contractors reviewing Medicare claims rely on LCDs, “which provide notice of how the contractor will determine whether an item or service” meets Medicare’s “reasonable and necessary” standard. The relevant one here, LCD 33393, “sets forth clinical diagnoses, statuses, signs, symptoms, and characteristics that support a terminal prognosis.” The court agreed “with the district court that substantial evidence supported the ALJ’s determination that Medicare did not cover the disputed claims.” It noted that “the ALJ examined the relevant data from the administrative record and provided an explanation of his decision that included a rational connection between the record facts and the coverage determination.” As to application of the safe harbor provision, the court considered how to determine when a provider “neither knew, nor could reasonably have known that Medicare did not cover an item or service.” It held that, “in applying the safe harbor, an ALJ must consider whether a provider could reasonably have interpreted the relevant notices or local standards of practice as covering each denied claim.” It found that, “if a provider reasonably—albeit incorrectly—interpreted the Medicare notices and standards as covering a patient’s claim, then the safe harbor saves them from liability.” As the court had not previously explained the safe harbor’s scope, “the ALJ did not employ this standard” here. It noted that “the ALJ should not have just asked whether In Home knew the LCD existed. Rather, the proper inquiry was whether in good faith, [it] could reasonably have believed that the patients were terminally ill as defined by LCD 33393.”

Applications for withholding of removal & protection under the Convention Against Torture (CAT); Persecution based on membership in a protected group; Nexus; Likelihood of torture upon return; Motion to suppress evidence on Fourth & Fifth Amendment grounds; Claim that a police stop was pretextual & racially motivated; Application of the exclusionary rule in civil proceedings; “Egregious violation”; Prima facie case of an illegal stop; Coercion claim; Alleged violation of 8 CFR § 287.8 (c)(2)(vii); Motion to terminate or remand proceedings based on the notice to appear; 8 USC § 1229(a)(1); Date & time requirements; Forfeited objection; Board of Immigration Appeals (BIA); Immigration judge (IJ); Department of Homeland Security (DHS)

The court held that petitioner-Perez-Hernandez’s motion to suppress was properly denied. Further, the BIA did not abuse its discretion in denying his motion to terminate or remand proceedings. His withholding-of-removal claim failed because he did not “show a nexus between his alleged persecution and his proposed social groups.” Finally, substantial evidence supported the BIA’s finding that he failed to show it was more likely than not that he would be tortured upon returning to Guatemala. Thus, the court denied his petition for review of the BIA’s orders. After a police officer saw petitioner discard a cigarette butt on the street, he confronted him and asked for identification. Petitioner was charged with possessing false identification and obstructing official business. The DHS initiated removal proceedings. He unsuccessfully “moved to suppress evidence of his alienage and identity, alleging that the police and DHS agents violated the Fourth Amendment, the Fifth Amendment, and federal regulations prohibiting coercion.” The court assumed “without deciding that a stop based solely on race is an egregious violation of the Fourth Amendment, which would permit the use of the exclusionary rule. But Perez-Hernandez’s Fourth Amendment claim still fails because he did not establish a prima facie case of an illegal stop.” As to his Fifth Amendment claim, it held that no due-process violation occurred. His “statements (or misstatements) to law enforcement about his identity were probative. And [he] failed to show that there was anything fundamentally unfair about the government relying on those statements.” He also did not show a self-incrimination violation. Even assuming “that the Self-Incrimination Clause applies in removal proceedings,” he failed to establish “a prima facie case that he made involuntary statements to law enforcement.” He also did not show coercion in violation of § 287.8 (c)(2)(vii). As to his renewed motion to terminate his removal proceedings, he “did not object to his notice to appear until after the issuance of the IJ’s decision. So he forfeited that objection.” Next, the court noted that fear “of ‘retribution solely over personal matters’” did not qualify him for withholding-of-removal relief.