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Loma Linda Kidney Center v. Azar

United States District Court, District of Columbia

February 20, 2018

LOMA LINDA KIDNEY CENTER, ET AL., Plaintiffs,
v.
AZAR, Defendant.

          MEMORANDUM OPINION [1]

          THOMAS F. HOGAN SENIOR UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Pending before the Court are plaintiffs' joint motion for summary judgment [ECF No. 24], the Secretary's opposition [ECF No. 27] and identical cross motion for summary judgment [ECF No. 28], the parties' stipulation of dismissal of Counts II-V, [ECF No. 34], and the parties joint motion to treat the stipulation of dismissal as a motion to amend the complaints, [ECF No. 37]. Plaintiffs filed a reply to the Secretary's opposition to their motion for summary judgment. [ECF No. 30], They also filed an identical opposition to the Secretary's cross motion for summary judgment [ECF No. 29], to which the Secretary filed a reply, [ECF No. 31]. Upon consideration of the parties' filings, and the entire record herein, the Court shall grant the parties' joint motion to treat the stipulation of dismissal as a motion to amend the complaints. The Secretary's cross motion for summary judgment as to Count I of both complaints shall be granted, and Plaintiffs' motion for summary judgment as to Count I of both complaints shall be denied. The Secretary's cross motion for summary judgment as to Counts II-V of both complaints shall be denied as moot.

         BACKGROUND

         The Court incorporates the following excerpt from its 2016 decision Loma Linda Univ. Kidney Ctr. v. Burwell, 185 F.Supp.3d 196 (D.D.C. 2016) ("Loma Linda II"), which describes this case's rather lengthy procedural history:

This case stems from the Department of Health and Human Services' denial of plaintiffs' applications for exceptions to the payment rate for reimbursement of renal dialysis treatment services. Plaintiffs submitted their applications on August 28, 2000. The Centers for Medicare & Medicaid Services ("CMS") issued the agency's initial decisions, dated November 15, 2000, denying plaintiffs' applications on the merits.
On administrative appeal, the Provider Reimbursement Review Board (the "Board") reversed the November 15, 2000 CMS decisions, finding that the applications should have been deemed approved because CMS did not provide notice of its decisions within 60 working days as required by 42 U.S.C. § 1395rr(b)(7) (providing that "[e]ach application ... shall be deemed to be approved unless the Secretary disapproves it by not later than 60 working days after the date the application is filed"). The Board concluded the issue whether CMS's denials of the applications were otherwise proper was moot.
The CMS Administrator (the "Administrator"), however, reversed the Board's decisions, concluding instead that CMS timely denied plaintiffs' applications within 60 working days, even if it did not provide notice of its decisions until later. The Administrator reasoned that section 1395rr(b)(7) does not require that plaintiffs receive notice of the disapproval within the statutory time period, but rather, requires only that CMS render the disapproval of the applications within the 60-working day statutory period. The Administrator did not address whether CMS's denials of the applications were otherwise proper.
Plaintiffs each sought judicial review under the Administrative Procedure Act ("APA"), their cases were consolidated, and the parties filed cross-motions for summary judgment. Plaintiffs also filed a motion to compel the production of any CMS logs reflecting the date upon which the November 15, 2000 denial letters were actually signed and mailed. Plaintiffs insisted their applications should have been deemed approved because, inter alia, section 1395rr(b)(7) requires that CMS provide notice of its decision within the 60-working day statutory period.
On January 28, 2011, this Court granted in part and denied in part the Secretary's motion for summary judgment, granted in part and denied in part plaintiffs' motion for summary judgment, and affirmed a Magistrate Judge's denial of plaintiffs' motion to compel. Loma Linda Univ. Kidney Ctr. v. Sebelius, Civ. Nos. 06-1926 & 06-1927, 2011 WL 13063635, at *1, *10 (D.D.C. Jan. 28, 2011) ("Loma Linda F). In granting partial summary judgment in favor of the Secretary, this Court upheld the Administrator's interpretation of 42 U.S.C. § 1395rr(b)(7) as requiring only that CMS render its disapproval of the applications within the 60-working day statutory period, which interpretation this Court found was entitled to deference under Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Loma Linda I, 2011 WL 13063635, at *2-3The Court further concluded that, with respect to the Administrator's determination that CMS's denials were rendered on November 15, 2000, "the record [is] adequate to find that the Administrator's decision[s] [are] not arbitrary, capricious, or based on insubstantial evidence in this respect." Id. at *9. However, because the Administrator's final decisions addressed only the timeliness issue and not the merits of plaintiffs' applications, the Court concluded that "the Administrator's decision[s] [are] arbitrary and capricious and a remand is necessary ... for a determination on the merits of Plaintiffs' applications [.]" Id. at *4, *10.
Plaintiffs attempted to appeal this Court's January 28, 2011 ruling to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit"), but the Secretary filed a motion to dismiss, which the D.C. Circuit granted, Specifically, the D.C. Circuit concluded that this Court's order was not yet final because it included a remand to the agency for further proceedings-the D.C. Circuit noted that "[o]nce the proceedings on remand are concluded, appellants, if still aggrieved, may return to district court, and appeal any still-disputed part of the remand order as well as any district court ruling made after the remand." Sept. 14, 2011 Mandate of United States Court of Appeals [Civ. No. 06-1926, ECF No. 59; Civ. No. 06-1927, ECF No. 31].
On remand before the agency, the Board rendered decisions on September 1, 2015, finding that CMS properly denied plaintiffs' applications-the Board declined to address the timeliness issue .... Because the Administrator declined to review the Board's decisions, they became the agency's final decisions on this matter.

Loma Linda II, 185 F.Supp. at 197-99.

         On October 19, 2015, plaintiffs again sought judicial review under the APA. Compl., Oct. 19, 2015, Loma Linda Univ. Kidney Ctr. v. Burwell, 15-CV-01717 [ECF No. 1]; Compl., Oct. 19, 2015, Loma Linda Univ. Med. Ctr. v. Burwell, 15-cv-01721 [ECF No. 1]. The Court consolidated the cases under case number 15-cv-01717 on March 3, 2016. On March 17, 2016, plaintiffs sought leave to conduct discovery related to the date CMS ...


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