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Baptist Memorial Hospital - Golden Triangle v. Leavitt

February 21, 2008

BAPTIST MEMORIAL HOSPITAL - GOLDEN TRIANGLE, ET AL., PLAINTIFFS,
v.
MICHAEL O. LEAVITT, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiffs in this action are three hospitals challenging decisions issued by the Provider Reimbursement Review Board ("the PRRB" or "the Board"), a panel that adjudicates Medicare and Medicaid disbursement appeals brought by health care providers. Plaintiffs brought claims regarding their fiscal year 1998 disbursements in two group appeals that were dismissed by the PRRB after the Plaintiffs failed to follow the Board's procedures. The central (albeit not sole) dispute in this case is whether the PRRB acted appropriately when it denied Plaintiffs an opportunity to raise the same dismissed claims in their individual appeals or subsequent group appeals. After thoroughly reviewing the Parties' submissions and the attachments thereto, applicable case law and statutory authority, and the record as a whole, the Court shall grant Defendant's [31] Motion for Summary Judgment and deny Plaintiffs' [32] Motion for Summary Judgment, for the reasons that follow.

I. BACKGROUND

A. Statutory Background

Pursuant to the Medicare Prospective Payment System, Medicare's payments to hospitals for inpatient operating costs are based on predetermined, nationally applicable rates, subject to certain payment adjustments. See 42 U.S.C. § 1395ww(d). This case involves one such adjustment--the Disproportionate Share Hospital Adjustment ("DSH adjustment")--which provides reimbursement to hospitals that serve a "significantly disproportionate number of low-income patients." Id. § 1395ww(d)(5)(F)(i)(I). The amount of the DSH adjustment depends on a hospital's DSH percentage, which is calculated using Medicare and Medicaid "fractions" or "proxies." Id. § 1395ww(d)(5)(F)(v), (vi). These fractions are calculated using variables that a hospital may contest, such as "charity care days," see id. § 1395ww(d)(5)(F)(vi)(II), or "section 1115 days," see 42 C.F.R. § 412.106(b)(4)(ii).*fn1

To receive reimbursements, a provider must file a cost report at the close of each fiscal year with its Medicare intermediary ("intermediary"). The intermediary, in turn, audits the cost report and issues a Notice of Program Reimbursement ("NPR"), indicating the intermediary's final determination as to the provider's reasonable costs of services furnished to Medicare beneficiaries. See 42 U.S.C. §§ 1395h, 1395oo(a)(1)(A)(I); 42 C.F.R. §§ 413.20, 405.1803. A provider that is dissatisfied with its intermediary's final determination may file an appeal with the PRRB within 180 days of receiving its NPR.*fn2 See 42 U.S.C. § 1395oo(a)(1)(A)(2). Such appeals are governed by Instructions issued by the PRRB. See 42 U.S.C. § 1395oo(e) (vesting the PRRB with the "full power and authority to make rules and establish procedures not inconsistent with" applicable statutes or regulations, "which are necessary or appropriate to carry out" its duties) (hereinafter, "PRRB's Instructions" or "the Instructions"). The PRRB's Instructions are at the center of the dispute in the instant action.*fn3

Pursuant to the PRRB's Instructions, a provider may file an individual appeal or may combine with other providers to file a group appeal. See PRRB Instructions, I.B.I.c, I.B.I.d. For individual appeals, a provider may appeal multiple issues for the same fiscal year. Id. at I.B.I.c. For group appeals, providers may raise only one issue for one fiscal year "which involves a question of fact or an interpretation of law, regulation or CMS ruling, which is common to all providers in the appeal." Id. at I.B.I.d. A provider that initially files an individual appeal may, pursuant to the Board's Instructions, request a transfer of that individual issue to an appropriate group appeal. Id. at I.C.VI. In practice, the PRRB also allows providers to do the reverse; that is, providers may withdraw issues from group appeals and transfer them to their individual appeals. See Rhode Island Hosp. v. Leavitt, No. 06-260, 2007 WL 294026 at * 1 (D.R.I. Jan. 26, 2007). Although providers generally have the option of joining group appeals, the Instructions require providers under common ownership or control to file group appeals if they have an issue in common. See PRRB Instructions, I.B.I.d (referring to such appeals as "mandatory").

For either an individual or a group appeal, a provider must submit a preliminary position paper to the Intermediary describing the issues for appeal, and a letter to the Board certifying that it has met its preliminary position paper due date. Id. at II.B. The Instructions allow a provider to add additional issues to an individual appeal (even after submission of its preliminary position paper) as long as the PRRB's hearing has not yet commenced:

In an individual appeal, you may add issues to the appeal prior to the commencement of the hearing . . . Since you are responsible for addressing all issues in a position paper before the hearing, you should assume that the added issues are part of your appeal . . . Although issues may be added to an individual appeal even after you have filed your position paper, the Board will look with disfavor on issues that are added at the last minute.*fn4 Id. at I.C.VI.

The Instructions repeatedly emphasize the importance of meeting the due dates for filing preliminary position papers and repeatedly warn providers that failure to timely submit the papers will result in dismissal of their appeals. See, e.g. id. at II.B.I. ("[i]f you fail to meet the preliminary position paper due date and fail to supply the Board with the required documentation, the Board will dismiss your appeal for failure to follow Board procedure"); id. At I.C.XIV ("[d]ue dates can only be changed or eliminated by written confirmation of the Board. Because your are the moving party, if you do not meet a due date, the Board will dismiss your appeal"); id. at I.C.VIII ("[t]he Board may dismiss the group appeal if the group representative misses . . . any of its deadlines"); id. at I.B.I.a ("[t]he Board wants to stress that it follows the practice of other appeal avenues by not reminding the parties of their responsibilities to manage their own appeals. The parties themselves, once informed of Board procedures and due dates, are responsible for complying with all Board requirements").

A provider may ask the PRRB to reinstate an appeal that has been dismissed for failure to comply with the Board's procedures. Id. at I.C.XIII. The Instructions require the provider to "explain in detail the reasons why [it] failed to comply. In general, this means the reasons [it] missed a position paper due date . . . ." Id. at I.C.XIII.b. The provider's request for reinstatement must also specify the issues the provider wants reinstated, and must provide the documentation or information that the provider failed to timely submit. Id. Following the submission of that information, "[t]he Board will [] consider [the provider's] reinstatement request." Id.

B. Factual Background

The three Plaintiffs in this action are Baptist Memorial Hospital - Golden Triangle ("Golden Triangle"), Baptist Memorial Hospital - St. Joseph Hospital ("St. Joseph"), and Baptist Memorial Hospital - DeSoto Hospital ("DeSoto") (collectively, "the providers"). Each of the providers initiated an individual appeal of its NPR for fiscal year 1998.*fn5 See Pls.' Stmt. ¶¶ 6, 22, 34. On April 11, 2002, St. Joseph asked the Board to establish a group appeal titled "BMHCC 1998 Medicaid Eligible Day Group Appeal" (hereinafter "2002 Eligible Days Group Appeal").

Id. ¶ 37. According to the request, the common issue concerned the intermediary's calculation of "Medicaid eligible days services to patients eligible for Medicaid as well as patients eligible for general assistance." See A.R. 496 (St. Joseph First Request Letter). On the same day, St. Joseph also asked the Board to establish a group appeal titled "BMHCC 1998 Medicare DSH SSI Proxy Group Appeal" (hereinafter "2002 SSI Proxy Group Appeal"). Pls.' Stmt. ¶ 38. The common issue associated with this appeal concerned the intermediary's withholding of "matching data from which the SSI proxy has been derived." Id., Ex. 14 at 1 (St. Joseph Second Request Letter). As a result of St. Joseph's requests, two group appeals were formed -- the 2002 Eligible Days Group Appeal and the 2002 SSI Proxy Group Appeal (collectively, the "2002 Group Appeals").

The other providers asked to join the 2002 Group Appeals. On March 5, 2003, Golden Triangle asked the PRRB to transfer the "DSH Medicaid Eligible Days issue" from its individual appeal to the 2002 Eligible Days Group Appeal, Pls.' Stmt. ¶ 7; A.R. 408-09 (Golden Triangle First Request Letter), and the "SSI Proxy issue" to the 2002 SSI Proxy Group Appeal, see Pls.' Stmt., Ex. 1 at 1-2 (Golden Triangle Second Request Letter). Similarly, on April 17, 2002, DeSoto asked the Board to transfer the "Medicaid Eligible Days" issue to the 2002 Eligible Days Group Appeal, id. ¶ 23; A.R. 677-78 (DeSoto First Request Letter), and the "SSI Proxy issue" to the 2002 SSI Proxy Group Appeal, id., Ex. 9 at 1-2 (DeSoto Second Request Letter).

On July 30, 2003, the Board dismissed the 2002 Eligible Days Group Appeal and the 2002 SSI Proxy Group Appeal because "the preliminary position paper[s] [were] not filed with the Intermediary and . . . a confirming letter regarding the filing of the preliminary position paper[s] [were] not filed with the PRRB." Pls.' Stmt. ¶¶ 12, 28, 44. The Parties do not dispute that the providers did not seek reinstatement of the appeals pursuant to PRRB Instruction I.C.XIII.b (setting forth the procedure by which providers may seek reinstatement of appeals that have been dismissed for failure to comply with deadlines set by the Board). See Def.'s Mot. for Summ. J. at 9; Pls.' Renewed Mot. for Summ. J. at 16.

On January 23, 2004, St. Joseph and Golden Triangle asked the Board to create a group appeal titled "BMHCC 1998 Medicare DSH Medicaid Proxy Group Appeal" (hereinafter "2004 Eligible Days Group Appeal"). Pls.' Stmt. ¶ 13. The common issue for the appeal, according to the request, was almost identical to the issue described in the 2002 Eligible Days Group Appeal Request. See A.R. 420 (Providers' Request to Create 2004 Eligible Days Group Appeal) (whether the intermediary "failed to include . . . as Medicaid-Eligible days services to patients for Medicaid, as well as patients eligible for general assistance." On the same day, St. Joseph and Golden Triangle also asked the Board to create a group titled "BMHCC 1998 Medicare DSH SSI Proxy Group Appeal" (hereinafter, "2004 SSI Proxy Group Appeal"). Pls.' Stmt. ¶ 14 & Ex. 4 (Providers' Request to Create 2004 SSI Proxy Group Appeal). The request described the same SSI Proxy issue that had previously been raised in the 2002 SSI Proxy Group Appeal. Id. Neither of the providers' requests referenced the Board's dismissal of their 2002 Group Appeals. On January 12, 2005, the providers (now including DeSoto) again asked the Board to transfer the Eligible Days Issue to the 2004 Eligible Days Group Appeal and the SSI Proxy issue to the 2004 SSI Group Appeal. Def's. Stmt. ¶ 14, 42. The PRRB created the two group appeals -- the 2004 Eligible Days Group Appeal and the 2004 SSI Proxy Group Appeal (collectively, the "2004 Group Appeals").

On April 6, 2005, the intermediary challenged the Board's jurisdiction over the providers in the 2004 Group Appeals, arguing that "the providers affected by the dismissal of the [2002 Group Appeals] should not be granted a new opportunity to appeal this issue in a subsequent appeal." Def.'s Stmt. ¶ 16; A.R. 17-20 (PRRB Decision dated May 5, 2006), A.R. 193 (Intermediary's Jurisdictional Challenge). On March 14, 2006, the Board dismissed the providers from the 2004 Eligible Days Group Appeal, A.R. 13-16 (PRRB Decision dated March 14, 2006), and on May 5, 2006, dismissed the providers from the 2004 SSI Proxy Group Appeal, A.R. 17-20. In each decision, the Board explained that the dismissal of the 2002 Group Appeals precluded the providers from again raising the same issues in subsequent group appeals. See A.R. 15, 20 (concluding that the "providers cannot now rely on adding the same issue again to their individual appeals to get a second opportunity to join a group").

1. The First Challenged Decision

On April 17, 2006, Golden Triangle and St. Joseph (but not DeSoto) sought reconsideration of the Board's March 14, 2006 decision (dismissing the providers from the 2004 Eligible Days Group Appeal).*fn6 Def.'s Stmt. ¶ 22. The providers argued that "they have the right to add an issue to a pending individual appeal, without regard to whether the issue had been appealed as part of a group appeal," and that the 2004 Eligible Days Group Appeal raised different issues than were raised in the 2002 Eligible Days Group Appeal. A.R. 92-94 (Letter from Providers dated April 17, 2006). On June 14, 2006, the Board declined to reconsider its March 14 decision primarily because the hospitals "[could not] rely on adding the same issue again to their individual appeal[s] to get a second opportunity to join a group." Def.'s Stmt. ¶ ...


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