502 F.Supp.2d 292 (2007)
Odessa CREDLE-BROWN, Plaintiff,
v.
State of CONNECTICUT, Department of Children and Families, Darlene Dunbar, Renee Hoff, Marc Hambrecht, Christine Kaatz, Heather Panciera, Wanda Estrella and Lynn Paton, Defendants.
No. 3:04-cv-1167 (WWE).
United States District Court, D. Connecticut.
August 20, 2007.
*293 *294 Alexander Lumelsky, Lumelsky & Mogilevich, LLP, Farmington, CT, for Plaintiff.
Tammy D. Geathers, Attorney General's Office, Hartford, CT, for Defendants.

RULING ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
EGINTON, Senior District Judge.
This action arises from plaintiff Odessa Credle-Brown's claims that defendants State of Connecticut, Department of Children and Families ("DCF"), Darlene Dunbar, Renee Hoff, Marc Hambrecht, Christine Kaatz, Heather Panciera, Wanda Estrilla and Lynn Paton (collectively, "employee defendants")[1] violated her civil rights pursuant to Title I and Title II of the American with Disabilities Act of 1990, 42 U.S.C. § § 12101, et seq. ("ADA"), 42 U.S.C. § 1983, and state common law in that she was discriminated against because of a disability; to wit: post partum depression with psychosis and anxiety disorder. She claims that she was terminated from her job as a result of this discrimination.
*295 The complaint is brought in four counts. Count one claims a violation of Title I of the ADA against employee defendants. Count two is brought pursuant to Title II against DCF and employee defendants. Count three alleges violations of plaintiffs rights under § 1983 as to employee defendants and count four asserts that she suffered from employee defendants' intentional infliction of emotional distress. Plaintiff seeks reinstatement, back pay and lost benefits, compensatory and punitive damages, attorneys' fees and costs.

BACKGROUND
Plaintiff was employed by DCF from December 1994 until February 2002. She was originally hired as a clerk typist and was promoted in June 1995 to the position of office assistant. In October 2000, plaintiff was diagnosed with post partum depression with psychosis and anxiety disorder and her physician predicted that this condition would persist for twelve to eighteen months. On July 11, 2001, plaintiffs physician submitted a medical certificate to DCF requesting that plaintiff be provided recovery time for her medical condition and that she work on a reduced schedule.
In July 2001, plaintiff began a 90-day light duty reduced workload assignment that was to terminate on October 14, 2001. The plaintiff was to work for eight hours a day on Mondays, Wednesdays and Fridays. In September 2001, plaintiff reported to employee defendants that her workload was too heavy. According to plaintiffs allegations, she repeatedly complained to defendants about her workload and these complaints were ignored.
In early October 2001, defendants informed plaintiff that her 90-day light duty assignment would expire on October 14, 2001 and that she would be required to return to work full time thereafter. She was also told that defendants would endeavor to find another suitable position or alternative duty if she was unable to return to full and/or regular duty on that date. If such search was unsuccessful, DCF reserved the right to process plaintiffs non-disciplinary separation from state service.
Subsequently, DCF received notice from plaintiffs physician informing it that plaintiff had been hospitalized from October 11, 2001 through October 30, 2001 and that the earliest she could expect to return to work was July 2002 or as late as January 2004.
On January 25, 2002, DCF informed plaintiff that an alternative position could not be found and that she was being separated from state service as a result of her inability to return to work following the expiration of her authorized medical leave of absence. On February 7, 2002, plaintiffs non-disciplinary separation from state service became effective.
Plaintiff claims that the Connecticut Commission on Human Rights and Opportunities retained this matter for a full investigation, but did not reach any conclusive determinations before plaintiff requested a release of jurisdiction in order to proceed to court.
Plaintiff filed her original complaint on July 15, 2004 and filed her first amended complaint on August 2, 2005. Defendants moved to dismiss this complaint on September 1, 2005 [Doc. # 26] and plaintiff moved to amend her complaint on November 8, 2005 [Doc. # 33]. The Court granted this motion and plaintiff filed the second amended complaint on January 30, 2006 [Doc. # 38]. On that same date, the Court found defendants' motion to dismiss moot. On September 18, 2006, defendants filed their answer and affirmative defenses [Doc. # 40] and, on September 26, 2006, defendants moved for judgment on the pleadings [Doc. # 44].

*296 DISCUSSION
Pursuant to Federal Rule of Civil Procedure 12(c), any party may move for judgment on the pleadings "after the pleadings are closed but within such time., as not to delay the trial." Fed.R.Civ.P. 12(c). A judgment on the pleadings is appropriate when all substantive facts are undisputed and a judgment on the merits is feasible simply by assessing the contents of the pleadings. Hines v. F.J.C. Security Co., 1998 WL 60967, *2 (S.D.N.Y.). As with a Fed.R.Civ.P. 12(b)(6) motion to dismiss, all facts as set forth by plaintiff shall be construed as true and all reasonable inferences will be drawn in plaintiff's favor. Id. Dismissal is proper under both a Rule 12(b)(6) motion and a Rule 12(c) motion only where it appears beyond all doubt that plaintiff can prove no set of facts that would entitle her to relief. Abbott v. Harris Publications, Inc., 1998 WL 849412, *3 (S.D.N.Y.). A granting of judgment on the pleadings differs from a Rule 12(b) motion to dismiss, however, in that a court is unwilling to grant a Rule 12(c) motion unless it is evident that the merits of the controversy can be fully and fairly decided at this stage. To grant a Rule 12(b) motion to dismiss, in comparison, means that plaintiff has failed to satisfy one of the procedural prerequisites for her claim for relief. Shen v. A & P Food Stores, 1995 WL 728416, *5 n. 1 (E.D.N.Y.).
I. Personal Jurisdiction
Defendants claim that plaintiff's case against employee defendants is barred because plaintiff failed to serve process on them in their individual capacities and, as a result, the Court lacks personal jurisdiction over these defendants. Plaintiff argues that defendants waived their defense of the lack of personal jurisdiction. The Court agrees with plaintiff.
Federal Rule of Civil Procedure 4(e) provides that an individual may be served pursuant to the law of the state for service upon a defendant or by delivering the summons and complaint "to the individual personally or at the individual's dwelling house or usual place of abode." Fed. R.Civ.P. 4(e). Connecticut General Statutes § 52-57(a) reflects the federal rule.[2]See Bogle-Assegai v. State of Connecticut, 470 F.3d 498, 507-08 (2d Cir.2006).
In the instant case, plaintiff attempted to effect service upon the individual employee defendants by leaving the summons with Associate Attorney General Gregory T. D'Auria. Doing so was proper as to defendants in their official capacities, but insufficient as to their individual capacities. See Conn. Gen Stat. § 52-64 (proper service of state officer effectuated by "leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the Attorney General's office in Hartford. . . ."); Burgos v. Department of Children and Families, 83 F.Supp.2d 313, 316 (D.Conn.2000) (holding that service upon defendant through the Attorney General or through DCF was insufficient to confer personal jurisdiction over her in her individual capacity).
However, Federal Rule of Civil Procedure 12(h)(1) provides in relevant part:
A defense or lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived . . . (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
*297 Service was executed in November 2004 and counsel for defendants filed her appearance for employee defendants in their official capacities only on November 18, 2004 and filed her appearance for them in their individual capacities on December 22, 2004. On September 1, 2005, defendants filed a motion to dismiss in which they did not raise the personal jurisdiction defense.
Furthermore, in the parties' Rule 26(f) Planning Report (approved on January 19, 2006), defendants explicitly stated that they did not contest personal jurisdiction.
The first time defendants raised the defense of lack of personal jurisdiction was in their answer to plaintiffs second amended complaint. The amended complaint was filed on January 30, 2006. Defendants' answer was not filed until September 18, 2006.[3]
The lack of personal jurisdiction is deemed waived if not raised in either defendants' answer to the complaint or in a motion to dismiss. Luv N Care, Ltd. v. Babelito, S.A., 300 F.Supp.2d 468, 472 (2d Cir.2004). A party who fails to object' to personal jurisdiction in the first of either his answer or motion to dismiss has waived his objection. See Rule 12(g) and (h); Palmer v. Braun, 376 F.3d 1254, 1259 (11th Cir.2004) ("It is well settled that lack of personal jurisdiction is a waivable defect, and that a defendant waives any objection to `the district court's jurisdiction over his person by not objecting to it in a responsive pleading or a Fed.R.Civ.P. 12 motion.").
This waiver is not obviated by virtue of an answer to an amended complaint. While an amended complaint generally supercedes the original, not all defenses are revived. If the defense of personal jurisdiction is not raised in defendants' response to the original complaint, it is considered waived and may not be renewed merely because a plaintiff has amended the complaint. Gilmore v. Shearson/American, Express, Inc., 811 F.2d 108, 112 (2d Cir.1987), overruled on other grounds, McDonnell Douglas Finance Corp. v. Pennsylvania Power & Light Co., 849 F.2d 761 (2d Cir.1988). See also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994) (distinguishing between the right to assert the defense of fraud and the prohibition of asserting the defense of personal jurisdiction in response to an amended complaint).
Because defendants did not raise, this defense in their motion to dismiss, their claim that the Court lacks personal jurisdiction over defendant employees in their individual capacities is waived. Their motion for judgment on the pleadings will be denied on this ground.
II. Subject Matter Jurisdiction
Defendants claim that plaintiffs complaint should be dismissed because her claims are barred by the Eleventh Amendment of the United States Constitution and state sovereign immunity. Plaintiff argues that her claims are not barred because they fall within delineated exceptions to such immunity.
The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." This provision has been extended to suits against a state brought by its own citizens. Board of Trustees of Univ. of Alabama v. Garrett, *298 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).
Eleventh Amendment immunity bars federal courts from entertaining any suit for damages brought by a private citizen against a state without the state's consent. Id. "The ultimate guarantee of the Eleventh Amendment is that nonconsenting states may not be sued by private individuals in federal court." Id.
However, Congress may abrogate Eleventh Amendment immunity when it intends to do so and acts according to a valid grant of constitutional authority pursuant to Section 5 of the Fourteenth Amendment. Kimel v. Florida Board of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).
1. ADA
In the present action, plaintiff seeks both monetary and prospective injunctive relief pursuant to the alleged violations of her rights under Titles I and II of the ADA. Defendants counter that such relief is barred by sovereign immunity. The Court will dismiss counts one and two of plaintiff's complaint inasmuch as they allege Causes of action under Titles I and II of the ADA against employee defendants in their individual capacities. There is no individual liability under Title I or Title II of the ADA. Fox v. State University of New York, 497 F.Supp.2d 446, 449-50 (E.D.N.Y.2007)
a. Title I
Congress does not have the authority pursuant to § 5 to abrogate Eleventh Amendment immunity for money damages under Title I. Garrett, 531 U.S. at 360, 121 S.Ct. 955. To the extent that plaintiff seeks monetary damages from the individual employee defendants in their official capacities, the Eleventh Amendment sovereign immunity applies. Saidin v. New York City Department of Education, 498 F.Supp.2d 683, 689-90 (S.D.N.Y.2007). Thus, plaintiff's claims for monetary relief under Title I against employee defendants in their official capacities will be dismissed.
As for plaintiffs claims for prospective relief under Title I, the Second Circuit adheres to the long settled doctrine that the Eleventh Amendment does not preclude suits against state officers in their official capacity for prospective injunctive relief to prevent a continuing violation of federal law. Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Henrietta D. v. Bloomberg, 331 F.3d 261, 287 (2d Cir.2003). It has determined that claims for reinstatement to previous employment satisfies the Ex parte Young exception to the Eleventh Amendment's immunity bar. State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95-96 (2d Cir.2007) (affirming district court's denial of motion to dismiss on the grounds that reinstatement to former employment qualifies as injunctive relief that is not barred by Eleventh Amendment immunity because it would end the alleged violation of federal law). See also Dotson v. Griesa, 398 F.3d 156, 178 (2d Cir.2005) (a court order of reinstatement, whether of government benefits or employment, is not barred by Eleventh Amendment sovereign immunity).[4]
b. Title II
As to plaintiffs claims for monetary damages under Title II, the Supreme *299 Court has recently held that monetary relief is available for Title II violations where that violation actually infringes upon plaintiffs rights under the Fourteenth Amendment. United States v. Georgia, 546 U.S. 151, 126 S.Ct, 877, 881, 163 L.Ed.2d 650 (2006).
Pursuant to Georgia, whether conduct independently violates the Fourteenth Amendment must be determined on a claim-by-claim basis, incorporating the following analysis: 1) which aspects of the state's alleged conduct violated the ADA; 2) to what extent the alleged misconduct also violated the Fourteenth Amendment; and 3) inasmuch as such misconduct violated the ADA but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. Id. at 882. The Court must have the opportunity to conduct this analysis and will not dismiss plaintiffs claims for monetary damages under the ADA at this juncture. See Mercer v. Strange, 96 Conn.App. 123, 899 A.2d 683 (2006) (remanding ease to trial court to conduct Georgia analysis regarding abrogation of sovereign immunity).
Like Title I, Title II authorizes prospective injunctive relief against the state. Lighthall v. Vadlamudi, 2006 WL 721568, *18 (N.D.N.Y.). Accordingly, the Court will not dismiss plaintiffs claim for same.
2. Section 1983
Plaintiff has alleged that defendants have deprived her of her rights pursuant to 42 U.S.C. § 1983. She asserts that defendants, by and through a pattern of discrimination, caused her specific damages including, inter alia, the loss of her job, income and benefits and the continuation of psychological and physical harm. Defendants argue that this is insufficient to state a claim under § 1983.
In order to establish a claim under 42 U.S.C. § 1983, plaintiff must demonstrate that the conduct complained of was committed by a person acting under the color of state law and that this conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parma v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
Plaintiff satisfies both prongs of the test for a § 1983 claim: 1) defendant employees were at all times acting under the aegis of DCF, a state agency, and 2) these defendants' actions allegedly caused the deprivation of plaintiffs rights under the ADA and the Fourteenth Amendment.
While plaintiff does satisfy the requirements to establish a § 1983 cause of action against employee defendants, her claim against them in their official capacities is barred by the Eleventh Amendment. It is well settled that § 1983 does not override the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). See also Dube v. State University of New York, 900 F.2d 587, 594 (2d Cir.1990) ("Although Congress is empowered under section five of the Fourteenth Amendment to override Eleventh Amendment immunity and to enforce by appropriate legislation the substantive provisions of the Fourth Amendment . . . it is well settled that 42 U.S.C. § 1983 does not constitute an exercise of that authority.").
However, state officials sued in their individual capacities are not immune from personal liability pursuant to § 1983. Hafer v. Melo, 502 U.S. 21, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). As discussed, supra, Ex parte Young does not apply to cases in which plaintiff seeks damages from public funds. However, damages awards against individual defendants under § 1983 are permissible. Hafer, 502 *300 U.S. at 30; 112 S.Ct. 358. "To be sure, imposing personal liability on state officers may hamper their performance of public duties. But such concerns are properly addressed within the framework of our personal immunity jurisprudence": Id. at 31, 112 S.Ct. 358.
Plaintiff's claims of violations of her rights pursuant to § 1983 against employee defendants in their official capacities will be dismissed and her claims against them in their individual capacities will be retained,
III. Intentional Infliction of Emotional Distress
Plaintiff alleges that she suffered emotional distress as a result of employee defendants' intentional discriminatory practices. Defendants argue that she fails to state a claim in that she does not satisfy the test for the intentional infliction of emotional distress and only presents conclusory allegations regarding same.[5]
Section 1367 of Title 28 of the United States Code provides federal courts with jurisdiction over state law claims when they are so related to the action that they form part of the same case. Punsalan v. Lantz, 2006 WL 3050835, *5 (D.Conn. 2006). Here, plaintiffs state law claim of intentional infliction of emotional distress is entwined with defendants' alleged actions regarding her ADA claims.
To prevail on her claim of intentional infliction of emotional distress, plaintiff must establish: 1) that defendants intended to inflict emotional distress or knew or should have known that their conduct would likely result in emotional distress; 2) that the conduct was extreme and outrageous; 3) that the conduct in question was the cause of plaintiffs distress; and 4) that the emotional distress experienced by plaintiff was severe. Appleton v. Board of Education of Town of Stonington, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
In the context of the employer-employee relationship, the court must assess whether the employer's conduct, not the employer's motive, was extreme or outrageous. Armstead v. The Stop & Shop Companies, Inc., 2003 WL 1343245, *5 (D.Conn.). "Thus, claims of employer misconduct in the form of intentional discrimination or retaliation, including discharge, which challenge motive or intent, are- dismissed unless the manifesting conduct is itself outrageous or extreme." Id. Firing an employee, in spite of any allegedly wrongful motive, does not qualify as extreme or outrageous conduct. Campbell v. Town of Plymouth, 74 Conn.App. 67, 78, 811 A.2d 243 (2002).
Defendants' conduct was well within the bounds of their professional authority. They accommodated plaintiffs needs for a reasonable period of time, providing her with a reduced workload and changing her schedule. They sought other appropriate employment for her. They did not terminate plaintiff until February 2002, seven months after they were first apprised of her condition. Their possible motivation for terminating plaintiff is not relevant, and neither her treatment nor her termination can be considered extreme and outrageous behavior on the part of defendants.
*301 The Court will dismiss plaintiffs claim of intentional infliction of emotional distress.

CONCLUSION
For the foregoing reasons, defendants' motion for judgment on the pleadings [Doc. # 44] is DENIED in part and GRANTED in part.
It is DENIED as follows: count one's claims against employee defendants in their official capacities for prospective relief under Title I is not dismissed; count two's claims against DCF and employee defendants in their official capacities for monetary damages and prospective relief under Title II is not dismissed; and count three, insofar as her claims of violations under § 1983 are addressed to employee defendants in their individual capacities, is not dismissed.
Defendants' motion is GRANTED as follows: count one is dismissed insomuch as it is addressed to employee defendants in their individual capacities and claims monetary relief under Title I; count two is dismissed as to plaintiffs claims against employee defendants in their individual capacities; count three is dismissed insofar as it sets forth claims under § 1983 against employee defendants in their official capacities; and count four is dismissed in its entirety.
NOTES
[1]  Plaintiff does not specify in which capacities she is suing employee defendants. However, in both parties' papers, they address defendants in both their official and individual capacities. The Court will do so as well.
[2]  Conn. Gen.Stat. § 52-57(a) provides in relevant part: "Manner of service upon individuals . . . (a) Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state."
[3]  Because of defendants' extreme delay in filing their response to plaintiff's amended complaint, they are in contravention of Fed. R.Civ.P. 15(a). However, the Court will pursue its analysis of personal jurisdiction under other jurisprudential grounds as well.
[4]  While reinstatement could be construed as an order requiring the use of state funds, it is a "purely prospective injunctive relief that orders the state official to return the former employee to the state's payroll." Dotson, 398 F.3d at 178. "The fact that such an order might subsequently require the expenditure of state funds to pay the reinstated employee's salary is ancillary to such a prospective injunction and, thus not barred." Id.
[5]  Defendants also argue that the Court should dismiss this state claim because plaintiff fails to state a claim regarding a federal issue and that the Court should therefore decline to exercise its pendent jurisdiction. Because there are federal claims against defendants remaining, the Court maintains jurisdiction over the claim for intentional infliction of emotional distress. Murray v. Williams, 2007 WL 430419, *7 (S.D.N.Y.) (declining to dismiss state law claims because federal claims remained).


863 S.W.2d 305 (1993)
314 Ark. 471
Mickie Gean JOHNSON, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 93-402.
Supreme Court of Arkansas.
October 25, 1993.
Doug Norwood, Rogers, for appellant.
J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.
HOLT, Chief Justice.
This case involves a consideration of the Arkansas implied consent law, codified at Ark.Code Ann. §§ 5-65-202, 5-65-205 (Supp. 1991), and the effectiveness of a waiver of trial by jury. We hold that the appellant effectively waived his right to trial by jury and that his assessments of our implied consent law and a police implied-consent admonition form are of no moment.
The appellant, Mickie Gean Johnson, was arrested by State Trooper Mark Meadows on July 26, 1991, for driving while intoxicated, fleeing, and violation of the implied consent law. He was tried in the Prairie Grove Municipal Court in January 1992 and was found guilty of DWI and violation of the implied consent law. The court found him not guilty on the charge of fleeing. Following a de novo bench trial before the Washington *306 County Circuit Court in July 1992, Johnson was again found guilty of DWI and violation of the implied consent law. The appellant raises three issues for reversal.

I. WAIVER OF TRIAL BY JURY
Johnson's first point addresses essentially the same question that we recently considered in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993), where we found that an attorney's waiver of his client's right to a jury trial, made in open court and in the presence of the defendant, satisfied the requirement of Ark.R.Crim.P. 31.2 that such a waiver be made "personally." Johnson contends that the trial court erred in not granting him a trial by jury. He asserts that the circuit court failed to obtain a valid waiver of his right to a jury trial because it did not address him personally and elicit a knowing, intelligent, and voluntary waiver. We disagree.
Johnson's argument is based primarily upon two recent DWI cases which we considered in Bolt: Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), in which we declared that, under the Arkansas Constitution and the Arkansas Rules of Criminal Procedure, a criminal defendant is entitled to receive a trial by jury unless the right is waived in the manner provided by law.
As we noted in Calnan v. State, supra, the "manner prescribed by law" for waiver in a criminal trial is set forth in Rules 31.2 and 31.3 of the Arkansas Rules of Criminal Procedure. Rule 31.2 provides that:
Should a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.
Rule 31.3 states that "In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant's attorney...."
The two cases cited by Johnson, although superficially similar to the present set of circumstances, bear marked differences, as we noted in comparing the corresponding situation in Bolt. In Calnan, the appellant was tried in Rogers Municipal Court and found guilty of DWI, disorderly conduct, violation of the implied consent law, and speeding. She appealed to the circuit court and, in a de novo bench trial, was found guilty of all charges except speeding. No mention was made of a trial by jury by either party or the court. On appeal, Calnan asserted that she had not waived her right to a jury trial, and this court agreed, noting that a waiver is an "intentional relinquishment of a known right," 310 Ark. at 748, 841 S.W.2d at 595, and that, under the rules of criminal procedure, the only way a waiver of a jury trial can be effected is "by personally making an express declaration in writing or in open court," 310 Ark. at 747, 841 S.W.2d at 595, the proceedings of which must be preserved.
In Winkle v. State, supra, the defendant faced a more serious chargeDWI, third offense, in addition to driving on a suspended license and hindering apprehension or prosecutionbut, like the defendant in Calnan, neither he nor his attorney asked for a jury trial or offered any objection to the bench proceedings. Citing Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991), we stated that, under the state constitution and rules of criminal procedure, a defendant is entitled to be tried by a jury without making such a motion. Further, we emphasized that a waiver of a jury trial is constitutionally permissible only when it is made in accordance with the provisions of the rules of criminal procedure.
The record in the case now before this court, unlike the transcripts in Calnan and Winkle, is far from silent on the question of waiver. In fact, it is quite similar to the record in Bolt, which reflects that the defendant's attorney, in open court and in his client's presence, formally waived "any requirement of a jury trial in this matter." See 314 Ark. at 388, 862 S.W.2d at 842.
At the beginning of Johnson's bench trial, the circuit court acknowledged the appellant's presence, calling him by his full name. During the defense counsel's closing argument, the following exchange occurred:

*307 THE COURT: ... As I understand it, the defendant in this particular case has waived his right to a jury trial.
MR. NORWOOD: That's correct, Your Honor.
THE COURT: Is that not correct?
MR. NORWOOD: Yes, we have a bench trial, yes.
THE COURT: Well, I just wanted to be certain about that.
MR. NORWOOD: Oh, no, there's no problem with that, Judge.
THE COURT: Okay, fine. You may proceed.
MR. NORWOOD: What I'm saying is even if we had had a jury
THE COURT: I understand ... your argument. I just wanted to make it clear for the purpose of the record that you waived your right to a jury trial in this case, the case we're trying here today.
MR. NORWOOD: Right.
The distinction between the Calnan and Winkle cases and Johnson's situationand the analogy with Boltis clear. Where nothing was said one way or the other about waiver during the trials in the earlier cases, defense counsel in the present matter affirmed "in open court" (as Ark.R.Crim.P. 31.2 puts it) that Johnson's right to trial by jury had been waived. Moreover, like the attorney in Bolt, defense counsel here, in the presence of the appellant, explicitly submitted the case to the court for a bench trial. Under the circumstances of the present case, Johnson was bound by his attorney's action.

II. IMPLIED CONSENT LAW
The appellant argues in his second point for reversal that the Arkansas implied consent lawand specifically Ark.Code Ann. § 5-65-205 (Supp.1991)is facially unconstitutional because it removes from the jury's province the ability to determine whether the arresting officer had reasonable cause to believe the defendant had been driving while intoxicated. In closing argument, Johnson's attorney asserted that if his client had been tried by a jury, the implied consent law would have violated his right to trial by jury because the trial court, rather than the jury, would have determined whether the appellant had been guilty of refusing to submit to a chemical test.
The statutory section at issue provides:
If the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person's blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to [suspend or revoke the operator's license].
Ark.Code Ann. § 5-65-205(c) (Supp.1991).
The trial court declared the constitutional issue moot because "the defendant has specifically waived his right to a jury trial." Johnson's contention is based on a hypothetical proposition: had there had been a jury trial, the appellant's rights would have been jeopardized. But it is well established that this court does not answer academic questions. Neeley v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986); Crittenden County v. Williford, 283 Ark. 289, 679 S.W.2d 795 (1984), supp. op. on den. of reh'g; Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). Nor does the Supreme Court issue advisory opinions. Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988).
Moreover, Johnson's attorney waited until his closing argument to address the issue of the constitutionality of the implied consent law. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).

III. IMPLIED-CONSENT ADMONITION FORM
Finally, Johnson urges that the trial court erred in refusing to dismiss the charge of refusing to submit to a chemical test on the basis that he was inadequately informed of the consequences of refusing to take the test. The language of Ark.Code Ann. § 5-65-205(c) (Supp.1991), quoted above, states *308 that "the judge shall (emphasis added) order the Office of Driver Services" to suspend or revoke the motor vehicle operator's license upon a judicial determination that the law enforcement officer had reasonable cause to believe that the arrested driver was DWI or while there was 0.10% of alcohol in the driver's blood and the driver refused to submit to a chemical test.
The consent form which Johnson signed contained the following notice:
If I have reasonable grounds for believing you have been driving or have been in actual control of a motor vehicle while intoxicated or while impaired by alcohol or a controlled substance, I can request that you take a chemical test of my choosing to determine your blood alcohol and/or controlled substance content.
If you refuse this test and a court later determines that I had proper cause to require you to take the test, then your driver's license may be suspended for six months or more. (Emphasis added.)
The arresting officer, Mark Meadows, testified that he read the rights and consent form to Johnson, who signed the line indicating his refusal to take a chemical test. Johnson himself stated at trial that he had read the form and believed that the phrase "may be suspended" meant that "at least I had a chance of still keeping my license." He said that "I thought you didn't have to take the test, then you could go to court and argue about it."
Johnson cites two cases from other jurisdictions involving consent-form variants on statutory language. In State v. Huber, 540 N.E.2d 140 (Ind.App. 3 Dist.1989), the Indiana implied consent law provided that "the refusal will result in the suspension of [the arrested person's] driving privileges." Ind.Code § 9-11-4-7(b) (1988). The appellate court found that the warning that "your license may be suspended for one year" was insufficient under the Indiana implied consent law, which "requires an advisement that refusal will result in suspension." 540 N.E.2d at 141.
In Graves v. Commonwealth, 112 Pa. Cmwlth. 390, 535 A.2d 707 (1988), the commonwealth court found the arresting officer's implied consent warning insufficient to convey the mandatory nature of the suspension entailed by refusal to submit to a chemical test. The driver had been advised that he "could" lose his license as a consequence of his refusal to take the test. This, the court said, was "inadequate to convey the standard of certainty of the suspension that is mandated by the statute." 535 A.2d at 708. That statute, 75 Pa.Cons.Stat. § 1547(b)(2), provided that "It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended or revoked upon refusal to submit to a chemical test."
Arkansas, unlike Indiana and Pennsylvania, does not have a statutorily prescribed implied-consent admonition form. The General Assembly did not include such a requirement when it enacted the implied consent law. The United States Supreme Court has held that a defendant need not be apprised of the consequences of refusing to submit to a chemical test. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). As we observed in another context: "The police should not be penalized for attempting to afford an unnecessary procedural safeguard to appellant." Allen v. State, 277 Ark. 380, 386, 641 S.W.2d 710, 714 (1982).
The trial court did not err in finding that the appellant had been adequately informed of the consequences of refusing to take the prescribed chemical test.
Affirmed.
DUDLEY, J., concurs.
DUDLEY, Justice, concurring.
I concur in the result reached. I personally do not agree with all of the reasoning expressed in Point I, the point involving waiver of trial by jury. See dissenting opinion, Dudley, Bolt v. State, 314 Ark. 387, 862 S.W.2d 387 (1993). However, the majority has decided this issue, and I now accept that decision.
I write because of a concern I have with Point III, which involves an implied consent form. We have had a number of appeals involving these forms over the last decade, *309 and some of the cases have demonstrated some confusion by the police about the advice to be given motorists who are arrested for driving while under the influence of intoxicants. Normally, the police are required to advise a motorist on three separate and distinct matters. These three are the detained motorist's Miranda rights, a request that the detainee take a chemical test, and that the detainee can have a second chemical test at his own expense. I write this concurring opinion solely for the benefit of a prosecuting attorney, city attorney, or deputy prosecutor or deputy city attorney, or police instructor, who might wish to advise police about the forms.
In many of the cases, the first thing that happens after a motorist is taken to the police station is the motorist is given a Miranda warning about his right against self-incrimination. The motorist is told that anything he says can and will be used against him, that he has a right to remain silent, and that he has a right to counsel. Shortly afterwards, an officer asks the motorist if he will take a chemical test of his blood, breath, or urine. Some motorists, having just heard their Miranda rights, choose to remain silent and ask for a lawyer before they take the test. See Wright v. State, 288 Ark. 209, 703 S.W.2d 850 (1986). The motorist may not understand the distinction between the Miranda warning against self-incrimination and consequences of the refusal to take a chemical test. They may not know they have already given an implied consent to the chemical test merely by operating an automobile, Ark.Code Ann. § 5-65-202 (Supp. 1993), or that enforcement of the implied consent law does not violate the provision against self-incrimination, Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984), or that the failure to take the test can result in the loss of one's driver's license. Ark.Code Ann. § 5-65-205 (Supp.1993).
Thus, it would seem appropriate for the officer to first advise the motorist of his Miranda rights, and then to carefully tell the motorist that the chemical test is not protected under the Miranda warning and that the failure to take the chemical test will likely result in the loss of his driver's license. It seems only fair for the officer to make the distinction clear. Under the statutes, the policeman must still give a third warning to the motorist. He must advise the motorist that he can have an additional chemical test at his own expense if he so chooses. Ark. Code Ann. § 5-65-204(e) (Supp.1993).
I concur in every respect with the majority opinion on this point in this case. I write this concurrence solely to set out the distinctness and separateness of the three warnings the police must give in conjunction with the implied consent to chemical test of motorists.


                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                    ______

                     No. 15-1202
                       ______

   GEISINGER COMMUNITY MEDICAL CENTER,

                                 Appellant

                           v.

  SECRETARY UNITED STATES DEPARTMENT OF
       HEALTH AND HUMAN SERVICES;
   MARILYN TAVENNER, Administrator, Centers for
         Medicare and Medicaid Services;
  ROBERT G. EATON, Chairman, Medicare Geographic
            Classification Review Board
                       ______

      On Appeal from United States District Court
         for the Middle District of Pennsylvania
               (M.D. Pa. No. 3-14-cv-01763)
     District Judge: Honorable Malachy E. Mannion
                          ______

            Argued Tuesday, April 21, 2015
Before: FISHER, CHAGARES and COWEN, Circuit Judges

                 (Filed: July 23, 2015)
Mary Kay Brown, Esq.
Brown Wynn McGarry Nimeroff
2001 Market Street
Two Commerce Square, Suite 3420
Philadelphia, PA 19103

Joseph D. Glazer, Esq. (ARGUED)
Suite 200
116 Village Boulevard
Princeton, NJ 08540
       Counsel for Appellant

Kate L. Mershimer, Esq.
D. Brian Simpson, Esq.
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Tara S. Morrissey, Esq. (ARGUED)
Michael S. Raab, Esq.
United States Department of Justice
Room 7262
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
       Counsel for Appellees

                         ______

               OPINION OF THE COURT
                       ______

                            2
FISHER, Circuit Judge.
       Hospitals that are disadvantaged by their geographic
location may reclassify to a different wage index area for
certain Medicare reimbursement purposes by applying for
redesignation to the Medicare Geographic Classification
Review Board (“Board”). Section 401 of the Medicare,
Medicaid, and SCHIP Balanced Budget Refinement Act of
1999, Pub. L. No. 106-113, 113 Stat. 1501 (1999) (“Section
401”), enacted ten years after the Board was established,
creates a separate mechanism by which qualifying hospitals
located in urban areas “shall [be] treat[ed] . . . [as] rural” for
the same reimbursement purposes. To avoid supposed
strategic maneuvering by hospitals, the Secretary of the U.S.
Department of Health and Human Services issued a
regulation providing that hospitals with Section 401 status
cannot receive additional reclassification by the Board on the
basis of that status. See 42 C.F.R. § 412.230(a)(5)(iii)
(“Reclassification Rule”).
       Geisinger Community Medical Center (“Geisinger”), a
hospital located in an urban area, received rural designation
under Section 401 but was unable to obtain further
reclassification by the Board pursuant to the Reclassification
Rule.     Geisinger sued the Secretary, Sylvia Matthews
Burwell; the Administrator of the Centers for Medicare and
Medicaid Services (“CMS”), Marilyn Tavenner; and the
Chairman of the Board, Robert G. Eaton, in their official
capacities (collectively, “Appellees”), challenging the
Reclassification Rule as unlawful. The District Court upheld
the regulation under Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984), and granted
summary judgment in favor of Appellees. Because we
conclude that Section 401 is unambiguous, we will reverse.

                                3
                                I.
                               A.
        The Medicare program provides a system of federally-
funded health insurance for eligible elderly and disabled
individuals under Title XVII of the Social Security Act, 42
U.S.C. § 1395 et seq. Under § 1395ww(d), or “subsection
(d),” hospitals are reimbursed for inpatient costs at fixed rates
for categories of treatment through an inpatient prospective
payment system (“IPPS”).                Calculating inpatient
reimbursement payments under IPPS is a multi-step process.
First, the Secretary establishes a nationwide standardized rate
for all subsection (d) hospitals located in an “urban” or
“rural” regional area. 42 U.S.C. § 1395ww(d)(2)(A)-(D).
Second, among other variables, CMS adjusts the standardized
rate by a “wage index” that reflects the difference between
hospitals’ local wages and wage-related costs and the national
average. Id. § 1395ww(d)(3)(E).
        A hospital’s wage index is the wage index the
Secretary assigns to the specific geographic area where the
hospital is located. Hospitals located in rural areas receive a
wage index that applies to all rural areas in their state.
Hospitals located in urban areas are grouped and treated as a
single labor market based on the area, known as the Core
Based Statistical Area (“CBSA”), in which they are
physically located. Higher wage indices, which reflect higher
labor costs in relation to the national average, correspond to
higher reimbursement rates. Thus, the wage index is a
significant determinant of the way hospitals are reimbursed
for inpatient care costs.
        IPPS may yield inequitable results where, for instance,
a rural hospital’s lower wage index does not accurately reflect
its labor costs because it competes for the same labor pool as
hospitals in a nearby but higher wage-index urban area.

                               4
Thus, in 1987 and 1988, Congress amended the Medicare Act
to allow a hospital to seek reclassification from its
geographically-based wage index area to a nearby wage index
area if it meets certain criteria. See Robert Wood Johnson
Univ. Hosp. v. Thompson, 297 F.3d 273, 276 (3d Cir. 2002)
(explaining the history of the Board reclassification system).
And in 1989, because only a limited number of hospitals were
reclassified under those laws, Congress established the Board
to systematically decide hospitals’ various reclassification
requests. See 42 U.S.C. § 1395ww(d)(10). “The Board shall
consider the application of any subsection (d) hospital
requesting that the Secretary change the hospital’s geographic
classification for purposes of determining” the hospital’s
average standardized rate or wage index.                     Id.
§ 1395ww(d)(10)(C). Congress gave the Secretary authority
to formulate guidelines to be used by the Board in rendering
its decisions. Id. § 1395ww(d)(10)(D)(i) (“The Secretary
shall publish guidelines to be utilized by the Board in
rendering decisions on applications submitted under this
paragraph . . . .”).
        Under those guidelines, which are generally listed at
42 C.F.R. § 412 et seq., a hospital seeking reclassification
must show (1) proximity to the area to which it seeks
redesignation, 42 C.F.R. § 412.230(a)(2), (b)(1); (2) that the
hospital’s three-year average hourly wage (“AHW”) is higher
than other hospitals’ in the area in which it is located, id.
§ 412.230(d)(1)(iii); and (3) that the hospital’s AHW is
comparable to hospitals’ in the area to which it seeks
redesignation, id. § 412.230(d)(1)(iv). For all three criteria,
there are more relaxed standards for hospitals located in rural
areas. For instance, the proximity rule requires that urban
hospitals be located within 15 miles of the area to which it
seeks reclassification, but only requires rural hospitals to be

                               5
within 35 miles. Id. § 412.230(b)(1). In addition, certain
“special” status hospitals, such as rural referral centers
(“RRCs”), are exempt from the first and second requirements.
See 42 U.S.C. § 1395ww(d)(10)(D)(iii); 42 C.F.R.
§ 412.230(a)(3), (d)(3).
       In 1999, ten years after the Board was established,
Congress enacted Section 401. Section 401 allows hospitals
located in urban areas to be treated as hospitals located in
rural areas for the purpose of determining three aspects of
Medicare reimbursement:           inpatient reimbursement, 42
U.S.C. § 1395ww(d)(8)(E); outpatient reimbursement, id.
§ 1395l(t); and critical access hospital eligibility, id. § 1395i-
4(c)(2)(B)(i). Only the first component, which amends
subsection (d), is at issue here. It reads in full:
       42 U.S.C. [§] 1395ww(d)(8)[] is amended by
       adding at the end the following new
       subparagraph:

       (E)(i) For purposes of this subsection, not later
       than 60 days after the receipt of an application
       (in a form and manner determined by the
       Secretary) from a subsection (d) hospital
       described in clause (ii), the Secretary shall treat
       the hospital as being located in the rural area (as
       defined in paragraph (2)(D))1 of the State in
       which the hospital is located.

           (ii) For purposes of clause (i), a subsection
           (d) hospital described in this clause is a

       1
         Pursuant to 42 U.S.C. § 1395ww(d)(2)(D), “the term
‘rural area’ means any area outside [] an [urban] area.”

                                6
         subsection (d) hospital that is located in an
         urban area (as defined in paragraph (2)(D))
         and satisfies any of the following criteria:

            (I) The hospital is located in a rural
            census tract of a metropolitan statistical
            area (as determined under the most
            recent modification of the Goldsmith
            Modification, originally published in the
            Federal Register on February 27, 1992
            (57 Fed. Reg. 6725)).

            (II) The hospital is located in an area
            designated by any law or regulation of
            such State as a rural area (or is
            designated by such State as a rural
            hospital).

            (III) The hospital would qualify as a
            rural, regional, or national referral center
            under paragraph (5)(C) or as a sole
            community hospital under paragraph
            (5)(D) if the hospital were located in a
            rural area.

            (IV) The hospital meets such other
            criteria as the Secretary may specify.
Id. § 1395ww(d)(8). In the Conference Report accompanying
Section 401, Congress highlighted several benefits of a
hospital receiving Section 401 status:

                             7
       Hospitals qualifying under this section shall be
       eligible to qualify for all categories and
       designations available to rural hospitals,
       including sole community, Medicare dependent,
       critical    access,    and     referral  centers.
       Additionally, qualifying hospitals shall be
       eligible to apply to the Medicare Geographic
       [Classification] Review Board for geographic
       reclassification to another area. The Board shall
       regard such hospitals as rural and as entitled to
       the exceptions extended to referral centers and
       sole community hospitals, if such hospitals are
       so designated.
H.R. Conf. Rep. No. 106-479, 512 (1999).
        The Secretary, in implementing Section 401, was
concerned that the statute would “create an opportunity for
some urban hospitals to take advantage of the [Board]
process.” See 65 Fed. Reg. 47,054, 47,087 (Aug. 1, 2000).
She was afraid that some hospitals, claiming to be
disadvantaged by their urban status, could first be reclassified
as rural under Section 401 and thereby “receiv[e] the benefits
afforded to rural hospitals,” and then subsequently claim
disadvantage from that rural status and “seek reclassification
through the [Board] back to the urban area for purposes of
their standardized amount and wage index.” Id. As a result,
the Secretary issued the Reclassification Rule:
       An urban hospital that has been granted
       redesignation as rural under § 412.103 [the
       regulation implementing Section 401] cannot
       receive an additional reclassification by the
       [Board] based on this acquired rural status for a
       year in which such redesignation is in effect.

                               8
42 C.F.R. § 412.230(a)(5)(iii). Under the Reclassification
Rule, a hospital with Section 401 status cannot be reclassified
by the Board to a different wage index area for any year the
hospital maintains that status. To seek reclassification by the
Board, therefore, a subsection (d) hospital must cancel its
Section 401 designation.
                              B.
       Geisinger is a not-for-profit, general, acute care
hospital physically located in the Scranton-Wilkes-Barre-
Hazelton, PA CBSA. It applied for designation as a Section
401 hospital and was approved, effective June 11, 2014. It
also applied for designation as an RRC and was approved,
effective July 1, 2014.2 On August 26, 2014, Geisinger
cancelled its Section 401 status, effective October 1, 2015.
       On August 28, 2014, Geisinger submitted two
applications to the Board to redesignate to a different urban
area, effective October 1, 2015: (1) on the basis of its Section
401 status, a primary application as a rural hospital to
reclassify to the Allentown-Bethlehem-Easton, PA-NJ CBSA
(“Allentown CBSA”); and (2) on the basis of its cancelled
Section 401 status, effective October 1, 2015, a secondary
application as an urban hospital to reclassify to the East
Stroudsburg, PA CBSA (“East Stroudsburg CBSA”), which
would be considered only if the former was denied.
Geisinger estimates that reclassification to the Allentown
CBSA would increase its reimbursement payments by
approximately $2.6 million per year and to the East
Stroudsburg CBSA by approximately $1.3 million per year.

       2
         See 42 U.S.C. § 1395ww(d)(5)(C)(i) (providing that
to earn status as an RRC a hospital must first be classified as
rural).

                               9
        The 27-mile distance between Geisinger and the
Allentown CBSA fails to meet the proximity requirement
under the Secretary’s rules for hospitals located in urban
areas, but it meets the more relaxed criteria for hospitals
located in rural areas. See id. § 412.230(b)(1). But for the
Reclassification Rule, therefore, Geisinger’s primary
application as a hospital with Section 401 status would be
considered by the Board using the rural standards. However,
because it was “[l]eft with no choice but to try to comply with
the Secretary’s illegal regulatory scheme or lose millions of
dollars in reimbursement,” Geisinger cancelled its Section
401 status so that the Board could alternatively consider its
application to the East Stroudsburg CBSA, whose
requirements it could meet as an urban hospital.3 Appellant’s
Br. at 14.
                              C.
      On September 10, 2014, while its applications were
pending before the Board, Geisinger filed a complaint in the
U.S. District Court for the Middle District of Pennsylvania.
Count I alleged that the Reclassification Rule violates Section
401. Count II alleged that the Reclassification Rule violates
the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et
seq. Geisinger sought a declaratory judgment that the
Reclassification Rule was unlawful and a permanent

       3
          Geisinger’s application to the East Stroudsburg
CBSA relied on a rule that allows a hospital with current
status as an RRC (as of the date of the Board’s review) to
reclassify to the nearest urban area without satisfying
proximity requirements. See 42 C.F.R. § 412.230(a)(3).
Geisinger is located 15.7 miles away from the East
Stroudsburg CBSA, which is the nearest urban area to
Geisinger.

                              10
injunction, an order of mandamus, or both, prohibiting the
agency from applying the Reclassification Rule to its pending
applications and ordering it to apply the rural standards.
        The parties filed cross-motions for summary judgment
and the District Court granted Appellees’ motion on
December 22, 2014. See Geisinger Cmty. Med. Ctr. v.
Burwell, Civ. A. No. 3:14-1763, 2014 WL 7338751 (M.D. Pa.
Dec. 22, 2014). The District Court first explained that it had
subject matter jurisdiction because Geisinger challenged the
legality of the Reclassification Rule itself and not the
agency’s decisions on its applications, over which the
Medicare Act precludes judicial review. See 42 U.S.C.
§ 1395ww(d)(10)(C)(iii)(II) (providing that Board decisions
may be appealed to the Secretary and that “[t]he decision of
the Secretary shall be final and shall not be subject to judicial
review”). On the merits, the District Court held that because
Congress did not expressly provide that Section 401 extends
to the Board reclassification process, and because Congress
granted the Secretary broad authority to administer that
process, Section 401 was ambiguous at Step One of Chevron,
467 U.S. at 842-43. At Step Two, the District Court
concluded that the Secretary’s decision to eliminate the
potential for “inconsistent reclassifications of the same
hospital for the same period” and other “unintended
consequences” vis-à-vis the Reclassification Rule was a
reasonable accommodation of Section 401 and therefore
should be upheld. Geisinger, 2014 WL 7338751, at *10.
Geisinger timely appealed.
        On February 23, 2015, the Board did not treat
Geisinger as located in the rural area of Pennsylvania and
denied Geisinger’s primary application for reclassification to
the Allentown CBSA. It approved Geisinger’s secondary
application for reclassification to the East Stroudsburg CBSA

                               11
on the basis that Geisinger had cancelled its Section 401
status. Reinforcing the application of the Reclassification
Rule, the Administrator of CMS affirmed the Board’s
decision on June 1, 2015.4
                               II.
        The District Court exercised jurisdiction under 28
U.S.C. §§ 1331 and 1361 and 5 U.S.C. § 701 et seq. We
exercise appellate jurisdiction under 28 U.S.C. § 1291.
        The Court reviews the District Court’s grant of
summary judgment de novo. Montone v. City of Jersey City,
709 F.3d 181, 189 (3d Cir. 2013). Under the APA, a
reviewing court may “hold unlawful or set aside agency
action, findings, and conclusions” that are found to be, inter
alia, “not in accordance with law.” 5 U.S.C. § 706(2). While
we usually afford deference to an agency’s interpretation of a
statute it is charged with administering, “when we are called
upon to resolve pure questions of law by statutory

       4
          Because Geisinger does not seek judicial review of
the denial of its applications, this Court maintains jurisdiction
over the appeal. See ParkView Med. Assocs., L.P. v. Shalala,
158 F.3d 146, 148 (D.C. Cir. 1998) (explaining that
“hospitals [are] free to challenge the general rules leading to
denial” where the Secretary affirmed the Board’s denial of
plaintiff’s reclassification request); Universal Health Servs. v.
Sullivan, 770 F. Supp. 704, 710 (D.D.C. 1991) (“The
[Medicare] Act does not . . . expressly preclude judicial
review of the guidelines utilized by the Board and the
Secretary in deciding upon reclassification requests.”); cf. 5
U.S.C. § 702 (conferring a general cause of action upon
persons “suffering legal wrong because of agency action” and
withdrawing it where the relevant statute precludes judicial
review).

                               12
interpretation, we decide the issue de novo without deferring
to [the] agency.” Port Auth. Trans-Hudson Corp. v. Sec’y,
U.S. Dep’t of Labor, 776 F.3d 157, 161 (3d Cir. 2015)
(internal quotation marks omitted).
                               III.
        Because this case concerns a challenge to an agency’s
construction of a statute, we use the familiar two-step analysis
set forth in Chevron. “First, always, is the question whether
Congress has directly spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron, 467
U.S. at 842-43. We proceed to Step Two “if the statute is
silent or ambiguous with respect to the specific issue.” Id. at
843. Then, “the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute,” and the regulation must be given deference unless it
is “arbitrary, capricious, or manifestly contrary to the statute.”
Id. at 843, 844.
        The “precise question at issue” here is whether the
Secretary is required to treat hospitals with Section 401 status
like hospitals physically located in rural areas for purposes of
Board reclassification. Id. at 842. Based on the plain
language of the statute, we conclude that Congress has
unambiguously expressed its intent that the Secretary shall do
so. Because Congress’s intent is clear, we complete our
analysis at Step One and do not proceed to Step Two to
determine whether the Reclassification Rule is a permissible
construction of Section 401.
                               A.
      To determine whether a statute is unambiguous under
Step One, “court[s] should always turn first to one, cardinal

                               13
canon before all others[:] We have stated time and again that
courts must presume that a legislature says in a statute what it
means and means in a statute what it says there.” Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253-54 (1992). That is,
because we presume Congress expresses its intent through the
ordinary meaning of the words it uses, an exercise of statutory
interpretation must begin by examining the plain and literal
language of the statute. See United States v. Geiser, 527 F.3d
288, 294 (3d Cir. 2008). And “[w]here the statutory language
is plain and unambiguous, further inquiry is not required.”
Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001);
In re Price v. Del. State Police Fed. Credit Union, 370 F.3d
362, 368 (3d Cir. 2004) (“We are to begin with the text of a
provision and, if its meaning is clear, end there.”).
       While we also read the language in its broader context
of the statute as a whole, see id. at 369-70, this Court made
clear in United States v. Geiser that “legislative history
should not be considered at Chevron [S]tep [O]ne,” 527 F.3d
at 294; In re Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d
Cir. 2010) (“Where the statutory language is unambiguous,
the court should not consider statutory purpose or legislative
history.”). Following the Court’s established precedent on

                              14
this matter, we will not consider legislative history in our Step
One analysis.5
        With this framework in mind, we turn to the text of
Section 401. The relevant portion reads: “For purposes of
this subsection . . . the Secretary shall treat the hospital [with
Section 401 status] as being located in the rural area (as
defined in paragraph (2)(D)) of the State in which the hospital
is located.” 42 U.S.C. § 1395ww(d)(8)(E)(i). The parties
make several quasi-textual and -structural arguments
supporting their interpretation of the statute that we group
into three categories and discuss in turn.
                                1.
        Geisinger’s first argument relates to Section 401’s
opening clause, “[f]or purposes of this subsection.” Id. The

       5
          Geisinger argues that the Supreme Court’s recent
plurality decision in Lawson v. FMR LLC, which cited to the
legislative record to determine whether a provision of the
Sarbanes-Oxley Act was ambiguous, mandates that legislative
history should now be considered at Step One. 134 S. Ct.
1158, 1169-71 (2014). However, the Supreme Court has
often oscillated between considering and then refusing to
consider legislative history at Step One. We explicitly noted
the Supreme Court’s “ambiguous guidance” in this regard and
nonetheless firmly staked our position in Geiser. 527 F.3d at
293. If the Supreme Court had intended to clarify the
widespread confusion around this issue, we imagine that it
would say so clearly. And even if it had, it bears emphasis
that the decision was a plurality opinion. In any event, this
Court has spoken clearly on its refusal to consider legislative
history at Step One, see id., and we see no reason to revisit
that decision because some members of the Supreme Court
considered legislative history in passing in Lawson.

                               15
subsection to which the statute indisputably refers is
subsection (d), which, as discussed, addresses a wide range of
rules for inpatient care reimbursement under the Medicare
program, including the requirements for calculating the
standardized rate for rural and urban regional areas, id.
§ 1395ww(d)(2)(D); adjusting the wage index on the basis of
a hospital’s local geographic area, id. § 1395ww(d)(3); and
administering the Board reclassification process, id.
§ 1395ww(d)(10). Geisinger alleges that this clause, which
explicitly directs the Secretary to apply Section 401 for
purposes of subsection (d), requires the Secretary to apply
Section 401 to subsection (d)(10), i.e., the Board
reclassification process. We agree.
       One of our “most basic interpretive canons” is that “[a]
statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous,
void or insignificant.” Corley v. United States, 556 U.S. 303,
314 (2009) (alteration in original) (internal quotation marks
omitted); see also Rosenberg, 274 F.3d at 142 (“[T]he
preferred construction of a statute and its regulations is one
that gives meaning to all provisions.”). Here, Congress must
have intended that Section 401 apply comprehensively over
subsection (d), including subsection (d)(10), because the
language “[f]or purposes of this subsection” would not have
any purpose or meaning if it did not.
       Appellees counter that because Section 401 is not
applicable to every paragraph within subsection (d), whether
Section 401 must apply to the Board reclassification process
is ambiguous. For instance, the command that a hospital shall
be treated as rural is not applicable to subsection (d)(6),
which requires the Secretary to make certain publications in
the Federal Register, 42 U.S.C. § 1395ww(d)(6); or
subsection (d)(7), which limits administrative and judicial

                              16
review, id. § 1395ww(d)(7). In other words, there are some
subsection (d) provisions for which the hospital’s rural status
is irrelevant.
        But this does not contravene Congress’s intent—
demonstrated by using the clause “[f]or purposes of this
subsection”—that Section 401 governs everywhere it is
applicable; it does not contravene Congress’s intent that
Section 401 governs everywhere a hospital’s rural status is
relevant. Cf. Babbitt v. Sweet Home Chap. of Cmtys. for a
Great Or., 515 U.S. 687, 722 (1995) (“[T]he definition of
‘take’ in [a provision of the Endangered Species Act] applies
‘[f]or the purposes of this chapter,’ that is, it governs the
meaning of the word as used everywhere in the Act.”). As
discussed, a hospital’s urban-rural geographic location has a
dispositive effect on the hospital’s designated standardized
rate and wage index. In turn, it has a dispositive effect on the
Board reclassification process, the statutory purpose of which
is to redesignate the hospital from rural to urban or vice versa
for purposes of receiving a new standardized rate or wage
index. See 42 U.S.C. § 1395ww(d)(10)(C). This bolsters our
conclusion that Congress intended Section 401 to apply to
these specific processes. Thus, we must read Section 401 as
mandating that for purposes of Board reclassification, which
is inextricably intertwined with a hospital’s rural or urban
designation, the Board shall treat the hospital as rural.
        The District Court disagreed with this construction,
concluding that “the statute does not discuss the Board
reclassification process at all, nor does it discuss the
intersection of redesignation and geographic reclassification
under the Medicare Act.” Geisinger, 2014 WL 7338751, at
*8; see also Appellees’ Br. at 23 (arguing that Section 401 is
“silent” with regard to Board reclassification). Appellees
further contend that if Congress had intended that subsection

                              17
(d) hospitals be able “to take advantage of both
reclassification procedures almost simultaneously, piling
exception on top of exception,” then it would have done so
more clearly. Appellees’ Br. at 25.
        In other words, the District Court and Appellees read
ambiguity into the statute because of what it does not say,
rather than read it for what it plainly says. To be sure,
Congress did not explicitly provide that Section 401 applies
to subsection (d)(10). But it did explicitly provide that
Section 401 applies for purposes of subsection (d), which
covers subsection (d)(10) and had covered it for ten years
before Section 401 was amended. To comprehensively
amend subsection (d)—which contains dozens of paragraphs
and subparagraphs concerning inpatient reimbursement, many
of which involve a hospital’s rural or urban status—rather
than each provision within it, Congress necessarily used
broad language. Still, “[a]s a general matter of statutory
construction, a term in a statute is not ambiguous merely
because it is broad in scope.” See In re Phila. Newspapers,
599 F.3d at 310; see also Diamond v. Chakrabarty, 447 U.S.
303, 315 (1980) (“Broad general language is not necessarily
ambiguous when congressional objectives require broad
terms.”). If the phrase was not intended to cover subsection
(d)(10), contrary to the literal reading of the text, then
Congress would have noted which paragraphs of subsection
(d) were specifically excluded or included. It did not. And
despite Appellees’ attempt to infer intent against layering the
two reclassification processes, the Court cannot ignore the
plain language of the statute. “Our task is to apply the text,
not to improve upon it.” Pavelic & LeFlore v. Marvel Entm’t
Grp., 493 U.S. 120, 126 (1989).

                              18
                                2.
        Next, Geisinger points to the portion of the text
mandating that hospitals with Section 401 status be treated
“as being located in the rural area (as defined in paragraph
(2)(D)) of the state where the hospital is located.” 42 U.S.C.
§ 1395ww(d)(8)(E)(i). Paragraph (2)(D) defines “rural area”
as “any area outside” an urban area. Id. § 1395ww(d)(2)(D).
Because there is only one definition of “rural” within
subsection (d), Geisinger argues, Congress must have
intended that the Board evaluate applications from hospitals
with acquired-rural status under Section 401 in the same way
it evaluates applications from hospitals physically located in
rural areas.
        Appellees argue, however, that Geisinger’s
interpretation is permissible under the plain language of the
statute, but it is not compelled. Another interpretation of
Section 401, they reason, is that the Secretary must treat
Section 401 hospitals as rural for all inpatient reimbursement
purposes and, therefore, must not reclassify those hospitals as
urban under the Board reclassification process.
        To be sure, “[a] provision is ambiguous only where the
disputed language is reasonably susceptible of different
interpretations.” In re Phila. Newspapers, 599 F.3d at 304
(internal quotation marks omitted). “But just because a
particular provision may be, by itself, susceptible to differing
constructions does not mean that the provision is therefore
ambiguous. . . . Rather, a provision is ambiguous when,
despite a studied examination of the statutory context, the
natural reading of a provision remains elusive.” In re Price,
370 F.3d at 369. Here, the natural reading of Section 401 and
the statutory scheme reinforces Geisinger’s view.
        Section 401 does not say that we cannot reclassify the
Section 401 hospital as urban. It says we must treat the

                              19
Section 401 hospital as rural for purposes of subsection (d),
including subsection (d)(10). This means that Section 401
hospitals must be able to participate in the Board
reclassification process and seek redesignation from their
current location to another location for purposes of receiving
a new standardized rate or wage index. To this end, Section
401 mandates that hospitals with Section 401 status be treated
as rural, which has well-settled meaning and implications
under the Medicare Act. See supra Part I.A. Thus, hospitals
with Section 401 status should apply as being located in the
rural area of their state and be evaluated by the Board under
the more relaxed standards regularly applied to rural
hospitals. Considering this “broader, contextual view”
together with the text, In re Price, 370 F.3d at 369, we find
the statute unambiguous. Appellees’ view that Section 401
hospitals cannot be reclassified as urban would, in effect,
prohibit hospitals with Section 401 status from reclassifying
under subsection (d)(10), contrary to the plain and natural
reading of the statute.
                               3.
       Third, and finally, Geisinger focuses on Section 401’s
command that “the Secretary shall treat” hospitals with
Section 401 status as rural. 42 U.S.C. § 1395ww(d)(8)(E)(i)
(emphasis added). Geisinger argues that the “shall” language
in Section 401 must be viewed as mandatory. See, e.g.,
United States v. Monsanto, 491 U.S. 600, 607 (1989).
Indeed, “[t]he word shall is ordinarily the language of
command.” Alabama v. Bozeman, 533 U.S. 146, 153 (2001)
(internal quotation marks omitted).
       Appellees do not dispute that Section 401 uses
mandatory language, nor do we. Appellees argue, rather, that
because Congress granted the Secretary authority to
promulgate guidelines for the Board reclassification process,

                             20
see 42 U.S.C. § 1395ww(d)(10)(D), the Reclassification Rule
was a permissible and necessary exercise of that authority in
the supposed gap that Section 401 created. Appellees
emphasize that “[n]othing in Section 401 constrains the
Secretary’s broad discretion to establish criteria for Board
reclassification,” which “‘is precisely the type of legislative
gap-filling that [courts] entrust to an agency’s sound
discretion.’” Appellees’ Br. at 23 (quoting Santomenno ex
rel. John Hancock Trust v. John Hancock Life Ins. Co.
(U.S.A), 768 F.3d 284, 299 (3d Cir. 2014)).
        But this authority was granted in subsection (d)(10),
which, again, covers the Board reclassification process.
While the Secretary is unquestionably authorized to issue
guidelines regarding Board reclassification, e.g., to design the
proximity standards for urban versus rural hospitals, it does
not follow that the Secretary is authorized to disregard the
plain language of Section 401. Rather, Section 401’s
mandate that the Secretary shall treat Section 401 hospitals as
rural without adding any discretionary language as Congress
used in subsection (d)(10) and elsewhere in Section 401 itself,
see 42 U.S.C. § 1395ww(d)(8)(E)(i) (referencing the receipt
of an application “in a form and manner determined by the
Secretary”); id. § 1395ww(d)(8)(E)(ii)(IV) (establishing as
the last criterion for Section 401 eligibility any “other criteria
as the Secretary may specify”), lends itself to the opposite
conclusion. “[W]here Congress includes particular language
in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)
(alteration in original) (internal quotation marks omitted).
Congress could have granted the Secretary discretion to
administer Section 401. It did not. Rather, it used

                               21
commanding language and the Court must give that language
effect, notwithstanding the Secretary’s independent authority
to develop guidelines used in the Board reclassification
process.
                             B.
        Section 401 refers to subsection (d) in its entirety,
which includes the Board reclassification process; requires
the Secretary to treat Section 401 status hospitals as rural,
which has a singular definition and well-settled implications
under the Medicare Act; and uses mandatory language
(“shall”). Altogether, we read Section 401 to reflect
Congress’s unambiguous intent on the “precise question at
issue,” Chevron, 467 U.S. at 842: for subsection (d)
purposes, including administering Board applications for
wage index reclassification, the Secretary shall treat Section
401 hospitals as located in the rural area of the state. Because
Congress’s intent is clear, we end our inquiry here and do not
reach Chevron Step Two. See id. at 843 n.9 (“If a court,
employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given
effect.”).
                              IV.
      Congress has unambiguously expressed its intent that
the Secretary shall treat Section 401 hospitals as rural for
Board reclassification purposes.         See 42 U.S.C.
§ 1395ww(d)(8)(E)(i). We conclude, therefore, that the
Reclassification Rule is unlawful and reverse the District
Court’s order granting Appellees’ summary judgment motion.

                              22
COWEN, Circuit Judge, dissenting

         The majority offers a well-reasoned reading of Section 401.
In fact, the majority may even offer the most persuasive
interpretation of this statutory provision. However, it is not this
Court’s job to adopt what it believes to be the best reading of the
statute. Instead, we must “use the familiar two-step analysis set
forth in Chevron.” (Majority Opinion at 12.) Under this doctrine,
we must first decide whether or not “Congress has directly spoken
to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If we
conclude that the statute is silent or ambiguous with respect to the
specific question at issue, the Court must then consider whether the
agency’s approach is based on a permissible construction of the
statute. See, e.g., id. at 843. “‘Chevron deference is premised on
the idea that where Congress has left a gap or ambiguity in a
statute within an agency’s jurisdiction, that agency has the power
to fill or clarify the relevant provisions.’” Santomenno ex rel. John
Hancock Trust v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d
284, 299 (3d Cir. 2014) (quoting Core Commnc’ns, Inc. v. Verizon
Pa. Inc., 493 F.3d 333, 343 (3d Cir. 2007)), cert. denied, 135 S. Ct.
1860 (2015). Accordingly, the Court must leave undisturbed “‘a
reasonable accommodation of conflicting policies that were
committed to the agency’s care by the statute . . . unless it appears
from the statute or its legislative history that the accommodation is
not one that Congress would have sanctioned.’” Chevron, 467
U.S. at 845 (citation omitted). We must defer to an agency’s
reasonable construction of a statute—“whether or not it is the only
possible interpretation or even the one a court might think best.”
Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012) (citing
Chevron, 467 U.S. at 843-44 & n.11). Because I believe that
Section 401 is ambiguous and that the Reclassification Rule
constitutes a permissible interpretation of this statutory provision, I
must respectfully dissent.

                                  1
        “Section 401 refers to subsection (d) in its entirety” (which
includes subsection (d)(10)), expressly requires the Secretary to
treat a Section 401 hospital as being located in the rural area (as
defined in subsection (d)(2)(D)) of the State in which the hospital
is located, and, in the process, “uses mandatory language” (i.e.,
provides that the Secretary “shall” treat the hospital as being
located in a rural area). (Id. at 21.) Even if Section 401
unambiguously requires that a Section 401 hospital be treated as
though it were a hospital located in a rural area for purposes of
subsection (d)(10), it does not follow that this statutory provision
unambiguously requires the Secretary and the Board to consider
applications filed by Section 401 hospitals under the same exact
criteria the Secretary adopted to govern reclassification
applications filed by hospitals physically located in rural areas.

        I agree with the District Court (as well as the United States
District Court for the District of Connecticut) that Section 401 is
silent as to whether hospitals reclassified as rural under Section
401 must be considered eligible for Board reclassification pursuant

                                 2
to subsection (d)(10).1 See Lawrence & Mem’l Hosp. v. Burwell,
Civ. No. 3:13cv1495 (JBA), 2014 WL 7338859, at *6 (D. Conn.
Dec. 22, 2014); Geisinger Cmty. Med. Ctr. v. Burwell, --- F. Supp.
3d ---, 2014 WL 7338751, at *8 (M.D. Pa. 2014); Lawrence &
Mem’l Hosp. v. Burwell, 986 F. Supp. 2d 124, 135 (D. Conn. Dec.
6, 2013). Section 401 does not expressly address the specific
criteria that must be satisfied in order to obtain Board
reclassification. Even though it contains mandatory language, this
statutory provision does not expressly direct the Secretary or the
Board to treat Section 401 hospitals exactly the same as hospitals
physically located in rural areas as part of the Board
reclassification process. In fact, the provision does not address the
Board reclassification process at all—nor does it take into account
the intersection or relationship between Board reclassification

       1
          It appears that, although the Reclassification Rule
was promulgated in 2000, only two lawsuits have been filed
(to date) challenging the lawfulness of this rule. In addition
to the current proceeding filed by Geisinger in 2014,
Lawrence & Memorial Hospital commenced an action in the
District of Connecticut in 2013 attacking the Reclassification
Rule as unlawful under the terms of Section 401. The
Lawrence & Memorial Hospital court initially denied the
hospital’s motion for a preliminary injunction (enjoining
defendants from acting on its application for Board
reclassification under subsection (d)(10) until the district
court could hold a hearing on the merits of its action). See
Lawrence & Mem’l Hosp., 986 F. Supp. 2d at 127-38. It
subsequently granted summary judgment in favor of the
defendants. See Lawrence & Mem’l Hosp., 2014 WL
7338859, at *1-*10. Lawrence & Memorial Hospital’s
appeal is currently pending before the Second Circuit.

                                 3
under subsection (d)(10), on the one hand, and Section 401
reclassification, on the other hand.

        According to the majority, the District Court and Appellees
have read ambiguity into the statute based on what it does not say,
as opposed to what it plainly says. However, “what it does not
say” (id. at 17) is of special significance here given Congress’s
creation of two reclassification mechanisms. Both Section 401 and
subsection (d)(10) effectively serve as exceptions to the general
principle that a hospital’s reimbursement is tied to its physical
location. Does Section 401 unambiguously grant hospitals like
Geisinger the right “to take advantage of both reclassification
procedures almost simultaneously, piling exception on top of
exception”—and to do so under the same Board reclassification
standards that otherwise apply to hospitals physically located in
rural areas? (Appellees’ Brief at 25.) Given the statutory silence,
the answer to this question must be “No.” According to Appellees,
Section 401 could reasonably be read as a directive for the
Secretary to treat Section 401 hospitals as rural for all purposes,
thereby prohibiting any further reclassification under subsection
(d)(10). While this may not be the best reading of the statutory
provision, the majority goes too far by claiming that it is contrary
to the plain and natural reading of this provision. After all, Section
401 broadly applies to subsection (d) and states, inter alia, that the
Secretary “shall treat” the hospital as being located in the “rural”
area of the State. Congress, in any event, left what could only be
considered a “‘gap’” between two distinct reclassification
mechanisms, which the Secretary attempted “‘to fill’” by adopting
the Reclassification Rule. Santomenno, 768 F.3d at 299 (citation
omitted). In fact, Congress delegated to the Secretary broad

                                  4
discretionary authority over the Board reclassification process.2

        Subsection (d)(10)(D)(i) provides that “[t]he Secretary shall
publish guidelines to be utilized by the Board in rendering
decisions on applications submitted under this paragraph.” The
majority acknowledges that “the Secretary is unquestionably
authorized to issue guidelines regarding Board reclassification,
e.g., to design the proximity standards for urban versus rural
hospitals,” but it underestimates the scope and significance of this
delegation of authority. (Majority Opinion at 20.) This Court has
recognized that Congress established the Board to pass on
applications for reclassification “according to certain standards and
guidelines” and then “gave the Secretary the authority to formulate
the guidelines to be used by the [Board].” Robert Wood Johnson
Univ. Hosp. v. Thompson, 297 F.3d 273, 276 (3d Cir. 2002) (citing
subsection (d)(10)(D) and 42 C.F.R. § 412.230 et seq.); see also,
e.g., Athens Comty. Hosp., Inc. v. Shalala, 21 F.3d 1176, 1179
(D.C. Cir. 1994) (indicating that Congress delegated to Secretary
authority to determine degree to which Board’s discretion should

       2
          I further note that the majority also relies on what
Section 401 “does not say” at several points in its opinion.
(See Majority Opinion at 17 (“If the phrase was not intended
to cover subsection (d)(10), contrary to the literal reading of
the text, then Congress would have noted which paragraphs
of subsection (d) were specifically excluded or included.”),
19 (“Section 401 does not say that we cannot reclassify the
Section 401 hospital as urban.”), 20-21 (“Rather, Section
401’s mandate that the Secretary shall treat Section 401
hospitals as rural without adding any discretionary language
as Congress used in subsection (d)(10) and elsewhere in
Section 401 itself, lends itself to the opposite conclusion.”
(citations omitted)).

                                 5
be limited); Universal Health Servs. of McAllen, Inc. v. Sullivan,
770 F. Supp. 704, 716-17 (D.D.C. 1991) (explaining that Congress
intended to grant Secretary power to establish substantive criteria
for Board reclassification), aff’d mem., 978 F.2d 745 (D.C. Cir.
1992). “The broad deference of Chevron is even more appropriate
in cases that involve a ‘complex and highly technical regulatory
program,’ such as Medicare, which ‘require[s] significant expertise
and entail[s] the exercise of judgment grounded in policy
concerns.’” Robert Wood Johnson, 297 F.3d at 282 (quoting
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)); see
also, e.g., Universal Health Servs., 770 F. Supp. at 718 (“Judicial
deference is particularly appropriate because the Secretary’s
obligation to promulgate reclassification guidelines involves an
‘“accommodation of conflicting policies that were committed to
the agency’s care by statute, . . .”’ [Chevron, 467 U.S. at 845]
(citations omitted). As previously discussed, the Secretary’s duty
to ensure budget neutrality is at odds with his duty to reclassify
hospitals so that they may receive increased Medicare
reimbursement. The Secretary, as sole administrator of the
Medicare Act, is in a unique position to evaluate and reconcile the
competing policy concerns within the Medicare program.”).

        Most of the substantive standards or criteria that the Board
uses to dispose of reclassification applications are set forth in the
Secretary’s own regulations. Congress did expressly direct the
Secretary to include guidelines for, inter alia, “comparing wages”
in the area in which the hospital is classified and the area in which
the hospital is applying to be classified. § 1395ww(d)(10)(D)(i)(I).
It also specified that the guidelines shall provide for the Board to
base any comparison of the “average hourly wage” on the average
of the AHW in the most recently published data and such amount
from each of the two immediately preceding surveys.                 §
1395ww(d)(10)(D)(vi). “Under the guidelines published by the
Secretary under clause (i), in the case of a hospital which has ever

                                 6
been classified by the Secretary as a rural referral center under
paragraph (5)(C), the Board may not reject the application of the
hospital under this paragraph on the basis of any comparison
between the average hourly wage of the hospital and the average
hourly wage of hospitals in the area in which it is located.” §
1395ww(d)(10)(D)(iii). In turn, it was the Secretary—and not
Congress—that then adopted the specific criteria that a hospital
must meet, i.e., a basic proximity requirement as well as standards
for comparing the hospital’s AHW with the AHW of other
hospitals located in the area in which the hospital is located and
with the AHW of hospitals in the area to which it seeks to
reclassify. See, e.g., Universal Health Servs., 770 F. Supp. at 706-
22 (rejecting challenge to Secretary’s proximity requirement). It
was also the Secretary that chose to treat urban and rural hospitals
differently for purposes of these criteria by, among other things,
specifying disparate proximity criteria for urban and rural
hospitals. I note that subsection (d)(10) does not even use the
terms “urban hospital,” “hospital located in an urban area,” or
“rural hospital.” Although it does refer to RRCs, the subsection
expressly mentions “hospitals located in a rural area” only once,
and it does so to specify that two Board members shall be
representatives of such hospitals. § 1395ww(d)(10)(B)(i).

        The majority appears to suggest that this delegation of
authority is entitled to little, if any weight, in the current inquiry
because it was set forth in subsection (d)(10)—and not Section
401. According to the majority, “Section 401’s mandate that the
Secretary shall treat Section 401 hospitals as rural without adding
any discretionary language as Congress used in subsection (d)(10)
and elsewhere in Section 401 itself lends itself to the opposite
conclusion [that the Secretary is not “authorized to disregard the
plain language of Section 401”].” (Id. at 20-21 (citations
omitted).) As the majority recognized, we nevertheless must read
the language of a statutory provision in its broader context. See,

                                  7
e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132-33 (2000).

        Section 401 itself purportedly amends subsection (d)(10)
(which was enacted ten years earlier). It is this subsection (and not
Section 401) that establishes the Board and grants the Secretary the
power to develop guidelines for the Board. It is reasonable to
conclude that Congress believed there was no need to add
additional language expressly granting the Secretary power to
adopt regulations regarding the eligibility of Section 401 hospitals
for Board reclassification (and the criteria to be used in assessing
their applications for Board reclassification) because Congress had
already delegated to the Secretary broad discretionary authority
over the entire Board reclassification process. In subsection
(d)(10)(D)(iii), Congress expressly prohibited the Secretary from
adopting any guideline allowing the Board to reject an application
filed by a hospital that has at any time been classified as an RRC
on the basis of a comparison of its AHW to the AHW of hospitals
in the area in which it is located. Congress similarly could have
amended subsection (d)(10) to add, for instance, language directing
the Secretary to publish a guideline requiring the Board to consider
applications filed by Section 401 hospitals under the same exact
criteria that govern reclassification applications filed by hospitals
physically located in rural areas. It did not do so, and I find that
this fact strongly weighs against the majority’s conclusion that
Congress unambiguously expressed its intent that the Secretary
shall treat Section 401 hospitals as rural for Board reclassification
purposes. (Cf., e.g., id. at 20-21 (“‘[W]here Congress includes
particular language in one section of a statute but omits it from
another, it is generally presumed that Congress acts intentionally
and purposefully in the disparate inclusion or exclusion.’ Russello
v. United States, 464 U.S. 16, 23 (1983) (alteration in original)
(internal quotation marks omitted).”).)

                                 8
        Because I conclude that Congress has not “directly spoken
to the precise question at issue” in this case, Chevron, 467 U.S. at
842-43, I must consider whether the Reclassification Rule
constitutes a permissible construction of Section 401. Given the
statutory ambiguity, it was the Secretary’s task—exercising the
broad discretionary authority granted under subsection (d)(10)—to
attempt to fill the gap that exists between two reclassification
mechanisms. See, e.g., Santomenno, 768 F.3d at 299. It is then
our obligation to decide whether this “‘interpretation is reasonable
in light of the language, policies, and legislative history’” of
Section 401 and the statutory scheme as a whole. United States v.
McGee, 763 F.3d 304, 315 (3d Cir. 2014) (quoting GenOn REMA,
LLC v. EPA, 722 F.3d 513, 522 (3d Cir. 2013), cert. denied, 135 S.
Ct. 1402 (2015). In light of the fact that Chevron deference is
especially appropriate in the Medicare context, see, e.g., Robert
Wood Johnson, 297 F.3d at 282, I believe that the Reclassification
Rule satisfies Chevron Step Two.

        As the District Court aptly pointed out in its ruling, “[i]t
cannot be said that the Secretary’s regulation, which was
promulgated to avoid permitting a hospital to be treated as rural for
some purposes and as urban for others allowing the hospital to
receive inappropriate reimbursements, was unreasonable, even if
the plaintiff can point to other reasonable policy choices.”
Geisinger, 2014 WL 7338751, at *11. In the respective preambles
to the proposed and final rules implementing Section 401, the
Secretary addressed the statutory language, identified her primary
concern about this legislation (e.g., that hospitals physically
located in urban areas might try to take advantage of Section 401
by obtaining reclassification under this statutory provision and the
various benefits accorded to rural hospitals and then seek
reclassification under subsection (d)(10) back to urban areas for
standardized amount and wage index purposes), explained why
such a result would be inappropriate, and considered but rejected

                                 9
alternative approaches. Medicare Program; Changes to the
Hospital Inpatient Prospective Payment Systems & Fiscal Year
2001 Rates, 65 Fed. Reg. 47,054, 47,087-89 (Aug. 1, 2000);
Medicare Program; Changes to the Hospital Inpatient Prospective
Payment Systems & Fiscal Year 2001 Rates, 65 Fed. Reg. 26,282,
26,308 (May 5, 2000); see also, e.g., Lawrence & Mem’l Hosp.,
2014 WL 7338859, at *8 (“[T]he record shows that the Secretary’s
decision was deliberate, logical, and considered.”). She expressly
addressed the Conference Report accompanying Section 401. 65
Fed. Reg. at 47,087-89; 65 Fed. Reg. at 26,308. By stating that the
Section 401 hospitals shall be eligible for Board reclassification
and that “[t]he Board shall regard such hospitals as rural,” the
report does weigh in favor of Geisinger’s reading of this statutory
provision. H.R. Conf. Rep. No. 106-479, 512 (1999). However,
this report (which did not mention subsection (d)(10)’s delegation
of authority to the Secretary and did not expressly consider the
potential problems that could arise from the existence of two
distinct reclassification mechanisms) is insufficient to establish
that Congress would never have sanctioned the Secretary’s
Reclassification Rule. See, e.g., Chevron, 467 U.S. at 845. In the
end, the Secretary appropriately exercised the power she was
granted by Congress so as to reconcile the distinct reclassification
mechanisms created by Congress.

        For the foregoing reasons, I would affirm the order of the
District Court granting Appellees’ motion for summary judgment.

                                10