Let’s not bury the lede. PLF is going back to the Supreme Court! Yesterday, the Court agreed to hear our case challenging Montgomery County’s magnet school admissions rules, which were designed to reduce the number of Asian American students (and did). The lower courts rejected our Equal Protection claim because even despite that policy, Asian students still held a larger share of admissions offers than their share of the applicant pool. In other words, the school district allegedly discriminated, but according to those courts, not enough to give rise to an equal protection claim. We’re arguing that equality is an individual right, and a child denied an equal opportunity because of race suffers a constitutional injury regardless of how other children of the same race fare. The Supreme Court will now decide whether families must clear that statistical hurdle before courts consider their evidence of intentional discrimination. It’s an important question that will have widespread implications given that, even after SFFA v. Harvard, schools have sought to drive their racial balancing underground, rather than stopping it entirely. A fitting issue for PLF’s 22nd appearance at the Court. The Court’s enthusiasm for our cases was unfortunately selective. Last week, it declined to hear our cases involving homesharing restrictions, extortive fees in SoHo’s artists-only district, compelled speech at a shopping center, and a military veteran who claims the government improperly treated a private road across his property as public forest access. Meanwhile, Khatibi v. Yip was relisted for yet another conference. That case asks whether California can claim privately created continuing medical education as its own speech, meaning it can compel, censor, or regulate that speech free of First Amendment scrutiny. What else happened during the Court’s first two weeks? Here’s the scoop. First Scoop: Explosive bureaucracy Disposing of old explosives is dangerous work. Getting permission to dispose of them can be its own ordeal. The Court heard oral arguments about it in Department of the Air Force v. Prutehi Guahan. At Guam’s Tarague Beach, the Air Force destroys waste munitions through open burning and detonation. Those operations require a permit under the Resource Conservation and Recovery Act, or RCRA, which regulates hazardous waste. When the Air Force applied to renew its permit, however, an environmental group sued, arguing that it first had to conduct a separate review under the National Environmental Policy Act, or NEPA. The Supreme Court faces two questions: Does submitting a permit application constitute “final agency action” that can already be challenged in court? And must the Air Force complete NEPA review before applying, even though RCRA supplies its own environmental safeguards and public-participation procedures? The Chamber of Commerce argues that layering NEPA onto that process would impose costly, duplicative review, imperiling important developments. And as PLF has documented, NEPA can become a formidable barrier to getting anything done. In fact, approval for one geothermal exploration project took a year and 128 days—even though its proposed probe holes would disturb a combined area roughly the size of an index card. That’s a lot of bureaucracy per square inch. Rather than being an effective tool for preventing harm, NEPA has turned into an effective tool for stopping even beneficial developments. That’s something that shouldn’t be expanded. Second Scoop: Can Boulder send the world an invoice? The highest-profile case from the past two weeks involves the City of Boulder’s attempt to make ExxonMobil and Suncor, two producers of fossil fuels, pay for their purported contributions to local harms associated with climate change, including wildfires, flooding, and reduced snowpack. The companies argue that Colorado cannot use its tort law to decide what companies should have produced and sold nationwide, let alone throughout the world. Energy policy implicates other states, foreign affairs, and national security. They therefore invoke the Constitution’s structure and early cases treating interstate pollution as a matter for federal law to say that state law shouldn’t govern. Otherwise, Colorado could use damages awards to impose its energy policies on activities that Texas and other states lawfully permit. Boulder argues in response that states have always used tort law to remedy local injuries, including injuries caused by companies operating across state lines. It says it is merely seeking compensation for wrongful conduct, not an emissions limit. As PLF argues in its amicus brief, attributing liability to a company’s fractional contribution to global emissions could expose energy producers to enormous claims across numerous jurisdictions. That uncertainty threatens investment in the affordable energy that powers human flourishing—and raises due process concerns about the reach and predictability of liability. At argument, attorney Kannon Shanmugam offered a more personal illustration. Under Boulder’s theory, he argued, the City could sue him when he visits Colorado for contributing to climate change by refilling his car. (N.B. Even if Suncor loses, Congress could step in and explicitly preempt this type of litigation.) Third Scoop: Your ‘recently watched’ history has entered the chat The term opened with ERISA and federal sentencing guidelines. My apologies to the ERISA bar, but these are challenging ingredients for a jaunty newsletter. Then came Robert Bork’s video rentals. During Judge Bork’s confirmation battle, a journalist obtained a list of 146 films rented on his family’s account and published “The Bork Tapes” (apparently Bork and his wife, who shared an account, were fans of Hitchcock, Sixteen Candles, and Citizen Kane). In response, Congress passed the Video Privacy Protection Act of 1988, which prohibits certain disclosures of video-viewing information. Salazar v. Paramount considers the breadth of that statute four decades later in the digital age, when streaming and doomscrolling have replaced trips to Blockbuster Video. The plaintiff Michael Salazar subscribed to a free e-newsletter from 247Sports and watched videos on its website. He alleges that Paramount, which owns the site, disclosed his information to Facebook without his consent in violation of the VPPA. The question is whether his newsletter subscription makes him a protected consumer. Paramount argues that he wasn’t a “renter, purchaser, or subscriber of goods or services from a video tape service provider” because he subscribed to a newsletter, rather than to a video-related good or service. The meaning of the text, Paramount says, is informed by the surrounding text, and Congress only intended to protect people who specifically rented, purchased, or subscribed to video-related goods. As Chief Justice Roberts observed at oral argument: [Justice Breyer’s favorite hypothetical] says, you know, no pets in the park, and the question was, did that mean that the person carrying his pet snail in his pocket was subject to prosecution. In other words, context matters. Salazar argues in response that no such qualification is present in the text, and if Congress had wanted to limit the statute, it would’ve said so. On this point, Justice Jackson used Justice Breyer for a competing hypothetical: If Breyer entered a video store and watched some videos but only bought a book, and if the store later went on to disclose his watch history, why should it matter that he only bought a book? Paramount’s attorney Paul Clement responded that “no statute pursues its purpose to the ends of the earth. And, here, Congress was very clear that if you don’t have a [specific] rental, purchaser, or subscription relationship, then you’re not covered by this statute.” There were also some questions about whether a sports site like 247 is even a “video tape service provider” to begin with, or rather some sort of other provider that happens to offer videos. Justice Alito remarked that if someone asked where you got gas and you got it from Costco, you wouldn’t respond by saying “I got it from a provider of optical services,” merely because Costco offers those things, too. The case may have far-reaching implications in the digital world. As the justices noted, almost every company now provides videos on their websites—from gyms to Chick-fil-A to universities. Clement argued that ruling for the plaintiff would open the scope of liability too broad. Justice Kagan pressed a practical response: just get consent or stop sharing people’s private information. Cherry on top The Milwaukee Brewers are going to the World Series—for the first time since 1982! Congratulations to PLF attorney and Wisconsin native Joshua Thompson, whose October just got considerably better. In the Brewers’ honor, I’m resurfacing my interview with Brewers great Jonathan Lucroy, who talked about hard work, praised the First Amendment, and taught me (and my son!) how to block passed balls. Speaking of baseball, Justice Alito has a new book out that speaks of his love for the game and that likens judging to umpiring. He’s a Phillies fan, but I reviewed it fairly anyway. Read my book review for The Dispatch. Oh, and did I mention PLF got a case granted by the Supreme Court? Raise a glass to freedom. See ya in two weeks,The post Supreme Court will hear our school admissions case appeared first on Pacific Legal Foundation.

Medicare pays Dr. Alicia Spoor $29.21 for an hourlong comprehensive hearing evaluation. Keeping her Maryland audiology practice running costs about $235 an hour—and that’s just to break even. Dr. Spoor is an audiologist, a doctoral-level clinician who diagnoses and treats disorders of hearing and balance. At Designer Audiology, her independent practice in Highland, Maryland, she tests hearing, fits hearing aids, programs cochlear implants, treats tinnitus, removes earwax, and teaches musicians how to protect their ears. Some of her Medicare patients would rather contract with her directly, but federal law prohibits her from taking their money. Why she became an audiologist Dr. Spoor has lived with tinnitus most of her life and hearing loss runs in her family—which inspired her to become an audiologist. She earned her Doctor of Audiology at Gallaudet University in Washington, DC, completed her externship at Mayo Clinic in Arizona, and has practiced in Maryland since 2007. Her career began in another audiologist’s office, where she witnessed the industry standard practice for selling hearing aids: one bundled, up-front price for every patient, regardless of how much care actually was required. Her desire to do things differently—charge patients only for the services they need—inspired her to open her own practice. Bound by Medicare Because hearing loss is more common in older adults, many of Dr. Spoor’s patients are on Medicare. Their care is bound by the program’s rules. Every service she offers starts with a diagnostic evaluation, the necessary first step before any treatment. That evaluation is the one service audiologists must provide through Medicare. For most actual treatment services, patients pay Dr. Spoor directly, because Medicare usually won’t cover them. Before her office can even book an appointment with a Medicare patient, the front desk has to triage them with a series of questions: Is the hearing problem acute? Is there pain, drainage, or dizziness? Has the patient fallen in the past year? When was their hearing last tested, and who ordered it? The answers determine whether the patient first needs a physician’s order. “You’re trying to explain this to somebody who is dizzy and they want to come in as quickly as possible, but now you have to get an order and so it’s three more visits,” Dr. Spoor explains. Patients often don’t understand the rule, and neither do their doctors. Dr. Spoor’s office gets about one call a day from a physician’s office asking why a Medicare patient needs an order for a hearing test. A cochlear implant patient may need to see her 10 times in the first year after surgery. Medicare requires a new order for each visit. Patients also fill out a form at every visit acknowledging that Medicare might not cover their service—and are often surprised at the end of the visit upon discovering their out-of-pocket cost. That’s because whether Medicare covers a test depends on why it’s performed, which often isn’t clear until the test is done. For Dr. Spoor, Medicare’s rules mean guessing before each test whether Medicare will cover it. A wrong guess can mean a denied claim, a repayment demand, or an accusation of improper billing, all over a payment of about $30. The only way out would be to turn away all Medicare beneficiaries—precisely the population that needs her the most. What it costs her practice The loss her practice absorbs on the many hearing evaluations it performs—recall the measly $29.21 Medicare reimbursement—means Dr. Spoor must charge private-pay clients two to four times what she otherwise would for treatment, hearing aids, tinnitus devices, and hearing protection. She opened her practice so patients wouldn’t subsidize each other’s care, but Medicare forces her to do exactly that. “Medicare is making it harder for me to be fair to all those patients,” she says. “I’m actively punishing my patients that are coming in for treatment or buying devices or paying privately when they can because Medicare is forcing me to do this.” The shortfall also limits her ability to invest in her business; she can’t readily upgrade equipment or pay her staff as competitively as she’d like. The profession as a whole is feeling the strain, and it’s struggling to attract new audiologists. Her bankers and accountants ask her why she keeps working with Medicare at all. “I don’t have a choice,” she says. “We’re losing bright kids to other professions at a time when you’ve got 10,000 patients a day coming into the Medicare system,” says Stephanie Czuhajewski, executive director of the Academy of Doctors of Audiology. Independent audiology practices across the country are selling to hearing aid manufacturers and private equity firms, moving into hospital systems, or closing. There are about 14,200 practicing audiologists in the U.S., and their numbers aren’t keeping pace with the growing number of Americans aging into Medicare. The shortage will be felt most acutely in rural communities with few providers. Everyone else can opt out Federal law permits most healthcare providers to opt out of Medicare, meaning the patient and the provider can contract with each other directly. That list includes physicians, optometrists, nurse practitioners, physician assistants, clinical psychologists, registered dietitians, marriage and family therapists, and mental health counselors. For some reason, audiologists are left off that list, as are physical therapists. The contrast with optometrists is especially stark. Optometrists and audiologists complete similar doctoral training and are licensed in every state, and each care for a single sense: one the eyes, the other the ears. The same sentence of the Medicare statute even excludes both eyeglasses and hearing aids from coverage. Yet an optometrist can opt out and let a Medicare patient pay privately for an eye exam. An audiologist can’t do the same for a hearing exam. As a result, audiology practices are struggling to compete with other, less burdensome options. Hearing aid dispensers—who, in most states, need only a high school diploma and on-the-job training—can test a Medicare patient’s hearing and deal with them privately, with no doctor’s order and no Medicare paperwork, offering a much smoother experience for patients. Fighting back On October 14, Dr. Spoor, Austin audiologist Dr. Jill Davis, and the Academy of Doctors of Audiology filed a federal lawsuit with the help of Pacific Legal Foundation. They argue that the exclusion interferes with audiologists’ right to earn a living and that the government has no rational reason to let physicians and nurse practitioners contract with willing patients while denying audiologists the same freedom. If she could opt out, Dr. Spoor would reset her fees to achieve the vision she’s always wanted for her practice: one where every patient pays a fair price for their care. All she’s asking for in court is the same choice nearly every provider already has. The post Maryland audiologist fights Medicare’s ban on private-pay care appeared first on Pacific Legal Foundation.