Id. at 993 (citation omitted). Other courts have found authority to review PRRB decisions refusing to exercise jurisdiction over provider appeals, when the provider disputes the existence of PRRB jurisdiction. See, e.g., Tucson Medical Ctr. v. Heckler, 611 F. Supp. 823 (D.D.C. 1985), aff'd sub nom Washington Hosp. Ctr. v. Bowen, 795 F.2d 139 (D.C. Cir. 1986).
In this case, plaintiff does not dispute that it failed to meet the statutory requirements for PRRB jurisdiction, but it disputes the PRRB's contention that it did not meet the regulatory requirements for extension of PRRB jurisdiction. If the regulation is valid, then PRRB jurisdiction can be extended in certain circumstances. The PRRB's decision not to exercise its jurisdiction here, where plaintiff argues that it could and should have done so, would therefore be a "final decision" within the meaning of Athens.
Turning to the issue of the regulation's validity, there is little in the legislative history of § 1395oo(f)(1) to guide the Court in determining whether Congress intended the 180-day time limit to be a mandatory prerequisite to PRRB jurisdiction.
The House Report states that provider appeals "must be filed within 180 days of the fiscal intermediary's final determination," but it is silent as to the Secretary's authority to extend that deadline. H.R. Rep. No. 231, 92d Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 4989, 5094. In its explanation to the provisions governing the PRRB, the Senate Report notes that the PRRB will be "authorized to make rules and establish procedures necessary to its operation in accordance with regulations established by the Secretary of Health, Education and Welfare." Sen. Rep. No. 1230, 92d Cong., 1st Sess., at 248-49 (1972). Thus, the Senate Report acknowledges a certain amount of discretion vested in the Secretary over the operations of the PRRB. The purpose underlying the establishment of the PRRB was to offer Medicare providers who disputed their fiscal intermediaries' NPRs a forum for administrative and judicial relief. Normally, a court gives great weight to the responsible agency's interpretation of the statute it administers. In this case, the Secretary's promulgation of a regulation extending the time limit for filing an appeal to the PRRB is consistent with the statute's overall purpose of offering providers an avenue for administrative review. More importantly, Congress has not expressed any intent contrary to the Secretary's interpretation of the statute. Thus, the Court determines that § 405.1841(b) is valid, and that this Court has jurisdiction over the instant dispute.
B. Abuse of the Secretary's Discretion
Plaintiff concedes that the Court's scope of review for this discretionary action by the PRRB is narrow. The appropriate standard of review is set out at 42 U.S.C. § 1395oo(f)(1), which incorporates the Administrative Procedure Act ("APA") at 5 U.S.C. § 706(2)(A). That standard requires the Court to "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law."
Plaintiff claims that the PRRB's decision not to grant plaintiff a good cause waiver was such an abuse of discretion. First, plaintiff claims that it was entitled to an adjudicatory hearing on the issue of whether it had demonstrated "good cause" for its late filing, and that the secretary's failure to provide such a hearing violates both the APA and plaintiff's constitutional right to due process. Section 554(a) of the APA states that an agency must provide an adjudicatory hearing "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing." 5 U.S.C. § 554(a) (1988) (emphasis added). However, plaintiff cannot identify any language in the statute which requires the agency to provide a hearing when a provider disputes the jurisdictional determination made by the PRRB. In the absence of such statutory language, an agency is not required by the APA to conduct a hearing. Wong Yang Sung v. McGrath, 339 U.S. 33, 50, 94 L. Ed. 616 , 70 S. Ct. 445 (1949) (hearings "of less than statutory authority" are exempted from APA requirements); Koniag, Inc., Village of Uyak v. Andrus, 580 F.2d 601, 609 (D.C. Cir.) (agency determinations made pursuant to statute need not comply with APA requirements for adjudications where statute does not require that such determinations be made "on the record after an opportunity for an agency hearing"), cert. denied, 439 U.S. 1052, 58 L. Ed. 2d 712 , 99 S. Ct. 733 (1978).
Plaintiff's constitutional argument must also fail. It is a fundamental of administrative law that notice and hearing are only required for the taking of rights or property. What is being taken in this case is a discretionary extra-statutory benefit created by the Secretary. Plaintiff's interest in receiving this benefit does not rise to the level of statutory entitlement sufficient to implicate due process concerns. Cf. Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287 , 90 S. Ct. 1011 (1970).
Plaintiff's second argument rests primarily upon the contention that the PRRB had prior constructive notice of plaintiff's intent to appeal, through plaintiff's appeal of its 1980 and 1981 cost years. Specifically, plaintiff relies on a position paper which it filed in support of its 1980 and 1981 cost year appeal. The position paper was filed on October 27, 1986, and it includes the following statement: "Although only the FYE 1980 and FYE 1981 cost reports are currently on appeal before this Board, this controversy has continued with respect to FYE 1982 and FYE 1983. The Provider requests that this Board order reimbursement for those fiscal years also." Certified Record, at 29. Plaintiff insists that this statement provided defendant with constructive notice of plaintiff's dispute concerning the 1983 cost year and that such notice was presented to defendant "in a form and manner that complies with the Defendant's own regulations and Hearing Manual."
Plaintiff is simply wrong. The regulations governing appeals of cost years to the PRRB are found at 42 C.F.R. § 405.1841. Section 405.1841(a) states that a request for a Board hearing "must identify the aspects of the determination with which the provider is dissatisfied, explain why the provider believes the determination is incorrect in such particulars, and be accompanied by any documenting evidence the provider considers necessary to support its position." While it may be true, as plaintiff argues, that the PRRB Hearing Manual allows requests for PRRB hearings to be "in the form of a letter, petition, or pleading, or any other reasonable form," it is also true that the regulation requires such requests to include the elements cited above. The position paper which plaintiff holds out as notice of its intent to appeal the 1983 cost year simply does not contain any of the particulars required by § 405.1841(a).
Moreover, even if the Court were to hold that the position paper gave defendant notice of plaintiff's intent to appeal the 1983 cost year, the fact remains that, for this notice to be timely under the statute and regulations, it should have been filed by April 10, 1986, 180 days after plaintiff's receipt of the 1983 decision. It was not filed until October 27, 1986.
Plaintiff also argues that the provider assumed that its counsel would take care of perfecting appeals in all of the cost years disputed by the provider. Plaintiff claims that the provider did not realize until 1988 that its counsel had failed to perfect those appeals. It insists that the provider should not be held accountable for the neglect of its counsel. While it is unfortunate that the provider is suffering the repercussions of counsel's neglect, the PRRB's failure to acknowledge this excuse as "good cause" does not constitute an abuse of discretion.
The Court thus concludes that the PRRB's refusal to grant plaintiff a "good cause" waiver was not arbitrary and capricious.
The Court concludes that it has jurisdiction to review the PRRB's refusal to grant plaintiff a "good cause" waiver of the 180-day time limit, and that the Secretary's regulation establishing such a waiver, at 42 C.F.R. § 405.1841(b), is valid. However, the PRRB's decision that plaintiff did not demonstrate "good cause" for its late filing was not arbitrary and capricious, nor was it an abuse of the agency's discretion. Thus, the Court hereby denies plaintiff's motion for summary judgment and grants defendant's cross-motion for summary judgment. An order consistent with this Memorandum Opinion will be entered this day.
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE
Dated: June 16, 1992
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 798 F. Supp. 16.
ORDER AND JUDGMENT - June 16, 1992, Filed
Upon consideration of the motion of plaintiff for summary judgment, the cross-motion of defendant for summary judgment, the submissions of the parties, the representations of the parties at oral argument, the record as a whole, and consistent with the accompanying Memorandum Opinion, it is this 16th day of June, 1992,
ORDERED that the motion of plaintiff for summary judgment be, and hereby is, denied; and it is further
ORDERED that the motion of defendant for summary judgment be, and hereby is, granted; and it is further
ORDERED that judgment be, and hereby is, entered in favor of defendant.
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE