rescind its interpretation of the reopening regulations. Bethesda allowed providers to appeal to the PRRB to consider the reimbursability of costs for which the providers had not requested reimbursement from the fiscal intermediary; the providers had "self-disallowed" these costs in accordance with statutory and regulatory reimbursement formulae in effect at the time the cost reports were filed. The Supreme Court allowed appeal to the PRRB because a review of the "plain meaning of the statute," 485 U.S. at 403, and the "language and design of the statute as a whole," Id. at 405, revealed that an intervening change in the law could form a legitimate basis for registering "dissatisfaction" with the intermediary's decision. The Court downplayed the provider's failure to present the disputed costs to the intermediary in the first instance due to self-disallowance because "no statute or regulation expressly mandates that a challenge to the validity of a regulation be submitted first to the fiscal intermediary." Id. at 404.
Unlike Bethesda, the clear language of the statute and regulations answers the question posed the Plaintiff. First, 42 U.S.C. § 1395oo(a) contemplates appeals from intermediary determinations with respect to cost reports within a 180-day period. Congress does not afford the right to appeal decisions after 180 days have elapsed, and the agency's own regulations allow reopening within three years of the date of final decision. Cf. Califano v. Sanders, 430 U.S. 99, 108, 51 L. Ed. 2d 192 , 97 S. Ct. 980 (1977) (noting that the Secretary's reopening procedures for disability claims afforded even more protection than Congress deemed necessary). Thus, Plaintiff's "rights" in the reopening process are defined by the agency's regulations and not by Congressional directive.
The reopening regulations spell out the appropriate procedures. Because Plaintiff never appealed the reimbursement award to the PRRB, the intermediary has sole discretion to reopen the decision with respect to the cost reports. See 42 C.F.R. § 405.1885(c) ("Jurisdiction for reopening a determination or decision rests exclusively with that administrative body that rendered the last determination or decision.") (emphasis added). Furthermore, the regulations specifically provide that appeals to the PRRB are available only after the matter is officially reopened and a determination made thereon.
Where a revision is made in a determination or decision on the amount of program reimbursement after such determination or decision has been reopened as provided in § 405.1885, such revision shall be considered a separate and distinct determination or decision to which the provisions of §§ 405.1811, 405.1835, 405.1875, and 405.1877 are applicable.
See 42 C.F.R. § 405.1889 (1991) (emphasis added).
Thus, by regulation, Plaintiff lacks a proper predicate for appeal because the intermediary did not reopen the Plaintiff's cost reports. Accordingly, the PRRB did not err when it declined to exercise jurisdiction over the Plaintiff's appeal.
C. THE COURT MUST POSTPONE CONSIDERATION OF THE DEFENDANT'S SUMMARY JUDGMENT MOTION GIVEN THE STATE OF THE ADMINISTRATIVE RECORD.
Proceeding under the assumption that the PRRB correctly denied jurisdiction over the Plaintiff's appeal, Plaintiff alternatively asks the Court to order the intermediary to reopen the cost reports. See Plaintiff's Complaint at para. 24 (Count III). The Defendant claims that the fiscal intermediary's decision escapes judicial review under Califano v. Sanders, supra, and its progeny. The Plaintiff did not brief the merits of the summary judgment motion. Instead, Plaintiff contends that the Court should order production of the full administrative record before considering the summary judgment motion. Upon further review, the Court concludes that the Defendant should file with the Court and serve upon the Plaintiff the full administrative record before the fiscal intermediary and then the parties should brief the merits of the Defendant's summary judgment motion with respect to Count III of the Complaint.
Count Three of Plaintiff's complaint squarely places before the Court the intermediary's underlying decision not to reopen the cost reports.
As such, the Defendant should have included all material considered by the intermediary in the administrative record. See, e.g., Camp v. Pitts, 411 U.S. 138, 141, 36 L. Ed. 2d 106 , 93 S. Ct. 1241 (1973) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136 , 91 S. Ct. 814 (1971)); Walter O. Boswell Memorial Hosp. v. Heckler, 242 App. D.C. 110, 749 F.2d 788 (D.C. Cir. 1984). Once this information is presented before the Court, the Court can determine whether it may review the intermediary's decision pursuant to 28 U.S.C. §§ 1331 and 1361, and also the Court can then determine, on the basis of the record before the agency at the time the decision was made, whether reopening is appropriate.
Because the PRRB does not have jurisdiction to consider an appeal of a fiscal intermediary's decision not to reopen, the Defendant's Motion to Dismiss, or in the alternative, Motion for Summary Judgment, is granted as to Counts I and II of the Complaint. However, the Court cannot consider the Defendant's Motion with respect to Count III of the Complaint because the full administrative record is not before the Court. Thus, the Defendant shall file the record before the fiscal intermediary and the parties shall then brief the Motion, in a manner consistent with the foregoing Opinion, with respect to Count III.
The Court shall issue an Order of even date herewith in accordance with the foregoing Memorandum Opinion.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 779 F. Supp. 1406.
ORDER - October 10, 1991, Filed
Upon consideration of the Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, the Plaintiff's opposition thereto, the applicable law, and the record herein, and for the reasons identified in the Court's Memorandum Opinion of even date herewith, it is, by this Court, this 11th day of October, 1991,
ORDERED that the Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, shall be, and hereby is, GRANTED with respect to Counts I and II of the Plaintiff's Complaint; and it is
FURTHER ORDERED that, on or before 4:00 p.m. on October 15, 1991, the Defendant shall produce and file with the Court the full administrative record before the fiscal intermediary at the time the decision was made with respect to reopening the Plaintiff's cost reports for the 1983-1985 years; and it is
FURTHER ORDERED that the Plaintiff shall file any opposition to the Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, with respect to Count III of the Complaint on or before 4:00 p.m. on October 23, 1991; and it is
FURTHER ORDERED that the Defendant may reply to any opposition brief filed by the Plaintiff with respect to the foregoing on or before 4:00 p.m. on October 28, 1991; and it is
FURTHER ORDERED that the parties shall appear for oral argument on the Defendant's Motion to Dismiss, or in the alternative, Motion for Summary Judgment, with respect to Count III of the Complaint at 3:00 p.m. on November 18, 1991.