Marietta Memorial Hospital Employee Health Benefit Plan v. Davita is the sort of case that makes my eyes glaze over. Does a group health plan that does not cover outpatient dialysis for all plan participants violate the Medicare Secondary Payer statute? I have no clue. Justice Kavanaugh wrote an opinion for seven Justices holding that there is no violation. Justice Kagan dissented, joined by Justice Sotomayor, and found there was a violation.
Kagan relied, as she often does, on "common sense." She explained that "Virtually everyone with end stage renal disease—and hardly anyone else—undergoes outpatient dialysis." Therefore, the Court "should not care whether a health plan differentiates in benefits by targeting people with end stage renal disease, or instead by targeting the use of dialysis." That point seems reasonable enough. But to support this proposition, Kagan swings for the constitutional fences.
First, she cites CLS v. Martinez!
