times, while further irreparable injury to plaintiffs will be prevented after December 15, 1982.
12. Accordingly, an Order accompanies this Memorandum, granting the plaintiffs preliminary injunctive relief in the form of mandamus, and requesting that the parties brief the remaining issues in this case.
This matter comes before the Court on plaintiffs' Motion for a Preliminary Injunction. Plaintiffs seek an order requiring defendants to implement Section 933 of Pub.L. 96-499, 94 Stat. 2609 (1980). That section amends Part B of the Medicare Act to include comprehensive outpatient rehabilitation facilities ("CORFs") as providers of services reimbursable under the Act. Plaintiffs specifically request this Court to order defendants to publish final CORF regulations, making Section 933 "effective" as required by Congress in Section 933(h). Upon consideration of the parties' arguments and memoranda, and the entire record, it is this 21st day of September, 1982, hereby
ORDERED: that plaintiffs' Motion for a Preliminary Injunction be treated as an action in the nature of mandamus, and that, as such, it should be and is GRANTED; and it is further
ORDERED: that the Secretary shall consider and cause the regulations published in proposed form at 47 Fed. Reg. 20091-20104 (May 10, 1982) to be effective as interim final regulations for all purposes as of December 15, 1982, with respect to any comprehensive outpatient rehabilitation services performed or received on or after that date, unless final effective regulations (hereinafter referred to as CORF regulations) to implement section 933 of the Omnibus Reconciliation Act of 1980 are issued by defendants on or before that date; and it is further
ORDERED: that payments made to comprehensive outpatient rehabilitation facilities on behalf of beneficiaries under Part B of the Medicare Act during any period when the proposed regulations as they appeared in the Federal Register of May 10, 1982, are in effect as final regulations pursuant to this Order shall not be subject to recovery or reduction because of a subsequent change in such regulations; and it is further
ORDERED: that upon the date of publication of final CORF regulations by defendants, such final regulations shall, unless otherwise ordered, supercede prospectively any regulations in effect pursuant to this Order; and it is further
ORDERED: that defendants shall promptly notify all Medicare Part B carriers and state agencies performing certification functions under the Medicare Act of the existence and substance of this Order; and it is further
ORDERED: that the parties shall submit simultaneous briefs and responses according to the schedule below regarding the following issues:
(a) whether section 933(h) of the Omnibus Reconcilation Act of 1980 makes the Secretary liable for payment or reimbursement for comprehensive outpatient rehabilitation services rendered by facilities that would have qualified as comprehensive outpatient rehabilitation facilities (potential CORFs) if final CORF regulations had been in effect as of July 1, 1981, to persons who would have been eligible for payment for such services under Part B of the Medicare Act, with regard to services rendered after July 1, 1981, for the accounting periods of such potential CORFs that began on or after July 1, 1981. (For convenience this issue will be referred to as the "retroactive payments" issue);