The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiffs are twenty-nine organizations that own or operate hospitals participating in the Medicare program. They have sued the Secretary of the Department of Health and Human Services (the "Secretary"), challenging certain regulatory actions taken by her in the course of administering Medicare's reimbursement scheme. Plaintiffs allege that as a result of the Secretary's flawed promulgation and implementation of various payment regulations, they were deprived of more than $350 million dollars in Medicare "outlier"*fn1 payments for services provided during fiscal years ending 1998 through 2006. Presently before the Court is Plaintiffs'  motion to compel the Secretary to file the complete administrative record and to certify the same. The motion has been fully briefed and ripe for adjudication. Upon a searching review of the parties' submissions, the applicable authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART Plaintiffs' motion to compel.
Although the merits of Plaintiffs' challenge to the Secretary's actions are not currently before the Court, a discussion of the relevant statutory and regulatory background underlying Plaintiffs' claims in this case will help to place the parties' arguments with respect to the pending motion to compel in the proper context. Accordingly, the Court shall recount its explanation of the regulatory scheme and the factual and procedural background, to the extent here relevant, as set out in its prior memorandum opinions. See Banner Health v. Sebelius, 797 F. Supp. 2d 97 (D.D.C. 2011); ---- F. Supp. 2d ----, Civ. A. No. 10-01638, 2012 WL 5901034 (D.D.C. Nov. 26, 2012).
A.Statutory and Regulatory Framework
Medicare "provides federally funded health insurance for the elderly and disabled," Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1226-27 (D.C. Cir. 1994), through a "complex statutory and regulatory regime," Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993). The program is administered by the Secretary through the Centers for Medicare and Medicaid Services ("CMS"). Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 205 (D.C. Cir. 2011).
From its inception in 1965 until 1983, Medicare reimbursed hospitals based on "the 'reasonable costs' of the inpatient services that they furnished." Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1008 (D.C. Cir. 1999) (quoting 42 U.S.C. § 1395f(b)), cert. denied, 530 U.S. 1204 (2000). However, "[e]xperience proved . . . that this system bred 'little incentive for hospitals to keep costs down' because '[t]he more they spent, the more they were reimbursed.'" Id. (quoting Tucson Med. Ctr. v. Sullivan, 947 F.2d 971, 974 (D.C. Cir. 1991)).
In 1983, with the aim of "stem[ming] the program's escalating costs and perceived inefficiency, Congress fundamentally overhauled the Medicare reimbursement methodology."
Cnty. of Los Angeles, 192 F.3d at 1008 (citing Social Security Amendments of 1983, Pub. L. No. 98-21, § 601, 97 Stat. 65, 149). Since then, the Prospective Payment System, as the overhauled regime is known, has reimbursed qualifying hospitals at prospectively fixed rates. Id. By enacting this overhaul, Congress sought to "reform the financial incentives hospitals face, promoting efficiency in the provision of services by rewarding cost[-]effective hospital practices." H.R. Rep. No. 98-25, at 132 (1983), reprinted in 1983 U.S.C.C.A.N. 219, 351.
In calculating prospective payment rates, the Secretary begins with
the "standardized amount," a figure that approximates the average cost
incurred by hospitals nationwide for each treated patient. See 42
U.S.C. § 1395ww(d)(2).*fn2 To account for regional
variations in labor costs, the Secretary then "determines the
proportion of the standardized amount attributable to wages and
wage-related costs and then multiples that labor-related proportion by
a wage index that reflects the relation between the local average of
hospital wages and the national average of hospital wages."*fn3
Cape Cod, 630 F.3d at 205 (internal quotation marks omitted;
citing, inter alia, 42 U.S.C. § 1395ww(d)(2)(H), (d)(3)(E)). Finally,
the standardized amount is weighted to "reflect the disparate
hospital resources required to treat major and minor illnesses." Cnty.
of Los Angeles, 192 F.3d at 1008 (citing 42 U.S.C. § 1395ww(d)(4)).
Specifically, "Medicare patients are classified into different groups
based on their diagnoses, and each of these 'diagnosis-related groups'
["DRGs"] is assigned a particular 'weight' representing the
relationship between the cost of treating patients within that group
and the average cost of treating all Medicare patients." Cape Cod, 630 F.3d at 205-06 (citing
42 U.S.C. § 1395ww(d)(4)). Therefore, to calculate how much a hospital
should be paid for treating a particular case, the Secretary "takes
the [standardized amount], adjusts it according to the wage index, and
then multiplies it by the weight assigned to the patient's [DRG]."
Cnty. of Los Angeles, 192 F.3d at 1009. The result is commonly
referred to as the "DRG prospective payment rate." Id.
"Congress recognized that health-care providers would inevitably care for some patients whose hospitalization would be extraordinarily costly or lengthy" and devised a means to "insulate hospitals from bearing a disproportionate share of these atypical costs." Cnty. of Los Angeles, 192 F.3d at 1009. Specifically, Congress authorized the Secretary to make supplemental "outlier" payments to eligible providers. Id. Outlier payments are governed by 42 U.S.C. § 1395ww(d)(5)(A), which provides, in relevant part, as follows:
(ii) . . . [A] hospital [paid under the Prospective Payment System] may request additional payments in any case where charges, adjusted to cost, . . . exceed the sum of the applicable DRG prospective payment rate plus any amounts payable under subparagraphs (B) and (F)*fn4 plus a fixed dollar amount determined by the Secretary.
(iii) The amount of such additional payment . . . shall be determined by the Secretary and shall . . . approximate the marginal cost of care beyond the cutoff point applicable under clause . . . (ii).
42 U.S.C. § 1395ww(d)(5)(A); see also 42 C.F.R. §§ 412.80-412.86 (implementing regulations). Each fiscal year, the Secretary determines a fixed dollar amount that, when added to the
DRG prospective payment, serves as the cutoff point triggering eligibility for outlier payments.
See 42 U.S.C. § 1395ww(d)(5)(A)(ii), (iv); 42 C.F.R. § 412.80(a)(2)-(3). This fixed dollar amount is known as the "fixed loss threshold." If a hospital's approximate costs actually incurred in treating a patient exceed the sum of the DRG prospective payment rate and the fixed loss threshold, then the hospital is eligible for an outlier payment in that case. See 42 U.S.C. § 1395ww(d)(5)(A)(ii)-(iii); 42 C.F.R. § 412.80(a)(2)-(3). In this way, the fixed loss threshold represents the dollar amount of loss that a hospital must absorb in any case in which the hospital incurs estimated actual costs in treating a patient above and beyond the DRG prospective payment rate. An increase in the fixed loss threshold reduces the number of cases that will qualify for outlier payments as well as the amount of payments for qualifying cases.
In designing the Prospective Payment System, Congress provided that "[t]he total amount of the additional [outlier] payments . . . for discharges in a fiscal year may not be less than 5 percent nor more than 6 percent of the total payments projected or estimated to be made based on DRG prospective payment rates for discharges in that year." 42 U.S.C. § 1395ww(d)(5)(iv). Under the Secretary's interpretation of the statute, which has been upheld by the United States Court of Appeals for the District of Columbia Circuit, "she must establish the fixed [loss] thresholds beyond which hospitals will qualify for outlier payments" at the start of each fiscal year. Cnty. of Los Angeles, 192 F.3d at 1009. To do so, the Secretary first makes a predictive judgment about the total amount of payments that can be expected to be paid based on DRG prospective payment rates. Cnty. of Los Angeles, 192 F.3d at 1009. She then examines historical data to determine the threshold that "would probably yield total outlier payments falling within the five-to-six-percent range." Id. For obvious reasons, "[w]hether the Secretary's projections prove to be correct will depend, in large part, on the predictive value of the historical data on which she bases her calculations." Id. In each of the fiscal years at issue in this action, the Secretary set fixed loss thresholds at a level so that the anticipated total of outlier payments would equal 5.1% of the anticipated total of payments based on DRG prospective payment rates.
As aforementioned, if a hospital's approximate costs actually incurred in treating a patient exceed the sum of the DRG prospective payment rate and the fixed loss threshold, then the hospital is eligible for an outlier payment in that case. See 42 U.S.C. § 1395ww(d)(5)(A)(ii)-(iii); 42 C.F.R. § 412.80(a)(2)-(3). The amount of the outlier payment is "determined by the Secretary" and must "approximate the marginal cost of care" beyond the fixed loss threshold. 42 U.S.C. § 1395ww(d)(5)(A)(iii). During the time period relevant to this action, the implementing regulations generally provided for outlier payments equal to eighty percent of the difference between the hospital's estimated operating and capital costs and the fixed loss threshold. See 42 C.F.R. § 412.84(k). In this way, "[t]he amount of the outlier payment is proportional to the amount by which the hospital's loss exceeds the [fixed loss] threshold." Dist. Hosp. Partners, 2011 WL 2621000, at *2 (citing 42 C.F.R. § 412.84(k)).
Plaintiffs are twenty-nine organizations that own or operate hospitals participating in the Medicare program. Am. Compl., ECF No. , ¶ 22.Plaintiffs contend that during fiscal years 1998 through 2006, they were deprived of more than $350 million in outlier payments. Id. ¶ 17.Plaintiffs filed appeals with the Provider Reimbursement Review Board ("PRRB"), each challenging the Secretary's final outlier payment determinations for the fiscal years in question. Id. ¶¶ 191-92. Because Plaintiffs' administrative appeals called into question the underlying validity of regulations promulgated by the Secretary, the PRRB determined that it was without authority to resolve the matters raised and, upon Plaintiffs' petition, authorized expedited judicial review pursuant to 42 U.S.C. § 1395oo(f)(1). Id. ¶¶ 193-95 & Exs. A-B.
Plaintiffs commenced the instant civil action on September 27, 2010, claiming that this Court has jurisdiction under the Medicare Act, 42 U.S.C. § 1395oo(f)(1), and the Mandamus Act, 28 U.S.C. § 1361. See Compl., ECF No. . On December 23, 2010, Plaintiffs filed an Amended Complaint as a matter of right, which remains the operative iteration of the Complaint in this action. See Am. Compl., ECF No. .
As this Court has previously observed, Plaintiffs' Amended Complaint is "sprawling"; it contains over two hundred paragraphs, spans fifty-nine pages, and appends two lengthy exhibits. In the opening paragraph, Plaintiffs claim to seek "judicial review of the final administrative decisions of the Secretary . . . as to the amount of Medicare 'outlier' payments due Plaintiffs for services provided under the Medicare program for fiscal years 1998 - 2006," Am. Compl. ¶ 1, but in fact, the allegations in the Amended Complaint sweep much more broadly. See Banner Health, 797 F. Supp. 2d at 104. Plaintiffs do not claim that the Secretary made a clerical error resulting in a miscalculation of their outlier payments; rather, Plaintiffs contend that the agency regulations underlying those calculations were inherently flawed. Specifically, Plaintiffs challenge the validity of a series of regulations establishing the methodology for calculating outlier payments (the "Outlier Payment Regulations"), 42 C.F.R. §§ 412.80-412.86, as well as the Secretary's annual promulgation of the regulations through which she set the fixed loss threshold for the upcoming fiscal year, for fiscal years 1998 through 2006 (the "Fixed Loss Threshold Regulations").*fn5
Regarding the Outlier Payment Regulations, Plaintiffs allege that
these regulations contained "vulnerabilities" that made them "uniquely
susceptible to manipulation" by unscrupulous hospitals. Am. Compl. ¶¶
52-98, 138. Specifically, they claim that the Outlier Payment
Regulations, in the form they existed prior to 2003,*fn6
required calculation of a hospital's estimated costs based
upon "inherently inaccurate and unaudited data," including
uninterrogated data gleaned from non-concurrent cost reports, Am.
Compl. ¶¶ 56-84; contemplated that a hospital's cost-to-charge ratio
would default to a statewide average whenever that ratio fell more
than three standard deviations above or below the nationwide mean, Am.
Compl. ¶¶ 85-92; and failed to provide a mechanism that would allow
for outlier payments to be audited and adjusted by fiscal
intermediaries*fn7 as a check against aggressive
charge inflation, Am. Compl. ¶¶ 93-98. According to Plaintiffs, the
confluence of these three "vulnerabilities" in the Outlier Payment
Regulations allowed unscrupulous hospitals to submit excessive
reimbursement claims, "led to massive overpayments" to the wrong
hospitals, prompted the Secretary to raise the fixed loss threshold at
the beginning of each fiscal year as a misguided countermeasure, and
ended with Plaintiffs being denied the outlier payments "to which they
were entitled." Am. Compl. ¶ 55.
Regarding the Fixed Loss Threshold Regulations, Plaintiffs contend that the Secretary, faced with an "aberrantly high" level of projected outlier payments caused by a flood of excessive reimbursement claims, made no attempt to diagnose the actual source of the problem but instead, as a misguided countermeasure, made "enormous, unprecedented and irrational increases" in the fixed loss threshold for the fiscal years at issue in this action, and did so without providing an adequate, reasoned explanation for the increases. See Am. Compl. ¶¶ 14, 69, 112, 114, 119, 121, 125-26, 129-38, 147-48, 155-61. To illustrate this point, Plaintiffs allege that the fixed loss threshold increased by 246% from fiscal year 1997 to fiscal year 2003, even though there was only a modest level of cost inflation during the same period. See Am. Compl. ¶¶ 14, 121, 137, 147. Plaintiffs attribute the "irrational" increase in fixed loss thresholds to the following alleged flaws in the Secretary's Fixed Loss Threshold Regulations: they lacked a means for accurately distinguishing between inflation in legitimate reimbursement claims from inflation in illegitimate reimbursement claims; they made no meaningful attempt to correlate the increase in the fixed loss threshold with the rate of cost inflation; and they made no attempt to compare the rate of increase in the fixed loss threshold with the rate of inflation in commonly used inflationary indices (e.g., the CPI-Medical Index). See Am. Compl. ¶¶ 128-133. Plaintiffs contend that the Secretary's failure to account for these flaws led to an irrational increase in the fixed loss thresholds for fiscal years 1998 through 2006, which allegedly had the ultimate effect of reducing the number of Plaintiffs' cases that qualified for outlier payments and the amount of payments for those cases that did qualify. Id. ¶ 50.
On January 28, 2011, the Secretary filed a motion to dismiss Plaintiffs' Amended Complaint, which this Court granted in part and denied in part. See Banner Health v. Sebelius, 797 F. Supp. 2d 97 (D.D.C. 2011). Specifically, the Court dismissed Plaintiffs' claims seeking payments under the Mandamus Act, 28 U.S.C. § 1361, as well as Plaintiffs' claims under the Medicare Act to the extent that such claims relied on vague allegations challenging the Secretary's "implementation" and "enforcement" of the outlier payment system that are "unconnected to any discrete agency action." See id. at 118. The Court otherwise denied the Secretary's motion to dismiss. Further, the Court concluded that, in light of the extraordinary breadth of the allegations in the Amended Complaint, proceeding immediately to the filing of the administrative record and the subsequent briefing of motions for summary judgment would not be the most expeditious manner of proceeding in the action. Rather, the Court considered it appropriate to gain further clarity as to the precise contours of Plaintiffs' claims and to that end ordered Plaintiffs to file a "notice of claims," identifying, in bullet-point format, each circumscribed, discrete agency action that Plaintiffs intend to challenge. Id. at 117-18.
On July 27, 2011, Plaintiffs filed their Notice of Claims. For convenience of the Court and parties, and for good reason, Plaintiffs' Notice of Claims does not specify each and every outlier payment challenged by the twenty-nine individual hospital plaintiffs. Rather, the filing groups all agency actions contested in this action by hospital fiscal years ("FYs").*fn8 While the challenged outlier payment determinations span nine years, the alleged flaws in the regulatory scheme listed by Plaintiffs repeat year after year. Synthesized thematically, the discrete agency actions enumerated in Plaintiffs' Notice are limited to the following:
* "the Secretary's determination of the number and dollar amounts of outlier program payments for the Plaintiffs' respective FYs [as challenged by each Plaintiff as set forth in Paragraph 22 of the Amended Complaint]"*fn9 ;
* "the Secretary's determination, promulgation and application of invalid Fixed Loss Threshold Regulations applicable to patient discharges occurring during the [Federal Fiscal Years] ending September 30 [of 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, and 2007]"*fn10 ;
* "the Secretary's promulgation of and continued application of invalid Outlier Payment Regulations, as amended in 1988 [,] further amended in 1994 [,] and further amended in 2003"*fn11 ;
* "the Secretary's failure to grapple with and correct for CMS's acknowledged historical mistakes, which resulted in underpayments [ ], in connection with her promulgation and application, in 2003, of amended Outlier Payment Regulations and Fixed Loss Threshold Regulations"*fn12 ; and Pls.' Notice of Claims, ECF No. , at 2-11.
Plaintiffs' Notice of Claims likewise lists among the challenged agency actions "the Secretary's directions, starting in late 2002, to CMS's fiscal intermediaries to reopen hospital cost reports only for purposes of reconciling and recovering outlier overpayments, but not for purposes of reconciling and recovering outlier underpayments, as set forth in the Secretary's issuance, through CMS, of Program Memorandum A-02-122 (December 3, 2002), Program Memorandum A-02-126 (December 20, 2002), Program Memorandum A-03-058 (July 3, 2003) [, and] Transmittal 707 (Medicare Claims Processing Manual, Chapter 3, § 188.8.131.52(A))".*fn13
However, on November 26, 2012, the Court granted the Secretary's motion to dismiss all claims premised on this agency action because, among other reasons, Plaintiffs failed to rebut the Secretary's well-reasoned jurisdictional arguments and in fact expressly disclaimed any intent to bring a direct challenge to reopening determinations or instructions as such. See Banner Health v. Sebelius, 797 F. Supp. 2d 97 (D.D.C. 2011); ---- F. Supp. 2d ----, Civ. A. No. 10-01638, 2012 WL 5901034 (D.D.C. Nov. 26, 2012). Rather, Plaintiffs explained in their brief in opposition to the Secretary's motion to dismiss that they listed the four CMS documents in their Notice of Claims because, among other reasons, the record produced in this case would be deficient without the CMS issuances and documents related thereto, as such documents are an integral part of the Secretary's rulemakings and implementation of the outlier regulations and statute. See id. at 10-11. However, the Court held it would not allow Plaintiffs to achieve supplementation of the administrative record by injecting the action with ill-defined claims, but rather, whether the administrative record should be supplemented to include the CMS documents was a question more appropriately addressed in the context of the Court's consideration of Plaintiffs' motion to compel (for which the parties' supplemental briefing was at that time outstanding). Id.
Accordingly, in addition to the outlier payment determinations specific to each of the hospital plaintiffs, the remaining claims in this action may be succinctly summarized as challenging the promulgation and implementation of the following agency actions: three sets of Outlier Payment Regulations promulgated in 1988, 1994, and 2003; and eleven sets of Fixed Loss Threshold Regulations for federal fiscal years 1997 through 2007.
After Plaintiffs filed their Notice of Claims, the Court ordered the Secretary to file the complete administrative record (with the exception of the record relating to Plaintiffs' subsequently dismissed claims regarding the four directives issued by CMS) by December 14, 2011. See Scheduling and Procedures Order (Aug. 19, 2011), ECF No. . The Secretary filed the administrative records for the fourteen challenged agency actions on November 8, 2011, November 23, 2011, December 14, 2011, and December 28, 2011. See Def.'s Notice of Filing of Admin. R., ECF No. ; Def.'s Notice of Filing of Admin. R., ECF No. ; Def.'s Notice of Filing of Admin. R., ECF No. ; Def.'s Notice of Filing Supplement to Admin. Record, ECF No. .*fn14 On January 6, 2012, the Secretary supplemented these productions with additional data in electronic form after the Court entered a protective order pertaining to such data.*fn15 All together, the fourteen administrative records filed by the Secretary constitute over 10,000 pages of documents, as well as tens of thousands of megabytes of electronic data that have been produced to Plaintiffs. Def.'s Opp'n at 6.
On February 22, 2012, Plaintiffs filed a motion to compel, challenging the completeness of the administrative record, Pls.' Mot. to Compel Def. to File the Complete Administrative R. and to Certify Same, ECF No. , which the Court dismissed without prejudice to renew, in light of the Secretary's represented intent to file supplements to the record. See Min. Order (Feb. 24, 2012). The Secretary subsequently filed two additional supplements. See Def.'s Notice of Filing Supplements to Admin. R., ECF No. ; Def.'s Notice of Filing Supplements to Admin. R., ECF No. . See also Def.'s Notice of Filing Certified Copies of Previously Filed Supplements to Admin. R., ECF No. .
On March 23, 2012, Plaintiffs filed a renewed motion to compel, requesting that the Court order the Secretary to file the "complete administrative record," by supplementing the records she had previously filed with various documents, including certain data files, identified by Plaintiffs and all other documents that were before the agency in connection with its rulemakings, and further order the Secretary to certify to the Court and Plaintiffs that the administrative record is complete. See Pls.' Mem. of P. & A. in Supp. of Renewed Mot. to Compel Def. to File the Complete Admin. R. and to Certify Same ("Pls.' Mem."), ECF No. , at 37. The Secretary filed her opposition brief on April 6, 2012. See Def.'s Opp'n to Pls.' Mot. Seeking Discovery and Supplementation of Admin. Rs ("Def.'s Opp'n"), ECF No. . Plaintiffs filed their reply on April 13, 2012. See Pls.' Reply Mem. in Supp. of Renewed Mot. to Compel Def. to File the Complete Admin. Record and to Certify Same ("Pls.' Reply"), ECF No. .
On September 11, 2012, Plaintiffs moved for a status conference, for the purpose of bringing to the Court's attention developments regarding a dispute over the completeness of a substantively similar administrative record filed by the Secretary in District Hospital Partners, L.P. v. Sebelius, Civ. A. No. 11-116 (D.D.C.), a case pending before District Court Judge Ellen S. Huvelle in which another group of hospitals is challenging some of the same actions being challenged in this case, and in which the plaintiff hospitals have filed motions challenging the administrative record filed by the Secretary. See Pls.' Mot. for Status Conf., ECF No. . The Court denied Plaintiffs' motion for a status conference but granted Plaintiffs leave to file a supplemental memorandum in support of their motion to compel addressing those developments, which Plaintiffs filed on September 21, 2012. See Pls.' Supplemental Mem. ("Pls.' First Supp. Mem."), ECF No. . The Secretary filed her response to Plaintiffs' supplemental memorandum on October 1, 2012. See Def.'s Resp. to Pls.' Supplemental Mem. ("Def.'s Resp. to Pls.' First Supp. Mem."), ECF No. . Further, on November 19, 2012, Plaintiffs filed a motion for leave to file a further supplement in support of its renewed motion to compel to put the Court on notice of additional significant developments in the District Hospital Partners discovery proceedings that are also purportedly directly relevant to the instant case. The Court granted Plaintiffs leave to file a second supplemental memorandum, see Min. Order (Nov. 20, 2012), which Plaintiffs filed on December 13, 2012, see Pls.' Second Supp. Mem. in Supp. of Renewed Mot. to Compel ("Pls.' Second Supp. Mem."), ECF No. . The Secretary filed her response to Plaintiffs' second supplemental memorandum on December 17, 2012, see Def.'s Response to Pls.' Second Supp. Mem. in Supp. of Renewed Mot. to Compel ("Def.'s Resp. to Pls.' Second Supp. Mem."), ECF , and Plaintiffs filed their reply in further support of its second supplemental memorandum on December 21, 2012, see Pls.' Reply Re: Second Supp. Mem. in Supp. of Renewed Mot. to Compel, ("Pls.' Reply in Supp. of Second Supp. Mem."), ECF No. . Finally, on April 12, 2013, Plaintiffs filed a Notice, informing the Court of the conclusion of the previously reported discovery proceedings in the District Hospital Partners case. See Pls.' Notice of the Conclusion of Previously Reported Discovery Proceedings in the District Hospital Partners Case ("Pls.' Notice"), ECF No. .
Accordingly, Plaintiffs'  motion to compel the Secretary to file the complete administrative record and to certify the same is now fully briefed ...