415 F.Supp.3d 1 (D.D.C. 2019), C. A. 18-2841 (RMC), American Hospital Association v. Azar

Docket Nº:Civil Action No. 18-2841 (RMC)
Citation:415 F.Supp.3d 1
Opinion Judge:ROSEMARY M. COLLYER, United States District Judge
Party Name:AMERICAN HOSPITAL ASSOCIATION, et al., Plaintiffs, v. Alex M. AZAR II, Secretary of the Department of Health and Human Services, Defendant.
Attorney:Catherine Emily Stetson, Susan Margaret Cook, Hogan Lovells U.S. LLP, Joel L. McElvain, Mark D. Polston, King & Spalding LLP, Washington, DC, for Plaintiffs. Bradley P. Humphreys, Justin Michael Sandberg, U.S. Department of Justice, Washington, DC, for Defendant.
Case Date:December 16, 2019
Court:United States District Courts, District of Columbia

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415 F.Supp.3d 1 (D.D.C. 2019)

AMERICAN HOSPITAL ASSOCIATION, et al., Plaintiffs,

v.

Alex M. AZAR II, Secretary of the Department of Health and Human Services, Defendant.

Civil Action No. 18-2841 (RMC)

United States District Court, District of Columbia

December 16, 2019

Catherine Emily Stetson, Susan Margaret Cook, Hogan Lovells U.S. LLP, Joel L. McElvain, Mark D. Polston, King & Spalding LLP, Washington, DC, for Plaintiffs.

Bradley P. Humphreys, Justin Michael Sandberg, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

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This Court has held that the Centers for Medicare & Medicaid Services (CMS) exceeded its statutory authority when it selectively reduced by Final Rule reimbursement rates for 2019 under the Outpatient Prospective Payment System (OPPS) to off-campus provider-based departments for certain outpatient department (OPD) services. SeeAm. Hosp. Ass’n v. Azar, No. 18-2841, 410 F.Supp.3d 142, __, 2019 WL 4451984, at *1 (D.D.C. Sept. 17, 2019) (AHA I ); 83 Fed.Reg. 58,818 (Nov. 21, 2018) (2019 Final Rule). Specifically, the Court determined that the addition of a non-budget-neutral rate reduction for Evaluation and Management (E&M) services at such facilities— separate from the normal OPPS reimbursement schedule— conflicted with the overall statute. AHA I, 410 F.Supp.3d at __ - __, 2019 WL 4451984, at *8-12. Accordingly, the Court vacated the relevant portions of the 2019 Final Rule, left intact the rest of the OPPS reimbursement schedule for 2019, and remanded the matter back to the agency for proceedings consistent with its decision. Id. at __, at *12; Order [Dkt. 32].

For a short period thereafter, the Court left open whether this should be the final remedy. Indeed, CMS asked the Court to modify its order and remand the matter to the agency without vacatur so that the agency could develop a remedy in the first instance. Alternatively, CMS asked the Court to stay its order pending the agency’s decision to appeal. After careful consideration of the parties’ briefs, however, the Court determined that vacatur was appropriate and that a stay was not. See Am. Hosp. Ass’n v. Azar, No. 18-2841, 2019 WL 5328814 (D.D.C. Oct. 21, 2019) (AHA II ). The Court entered final judgment on October 21, 2019, and the government had until December 20, 2019, to appeal.1 See Fed. R. App. P. 4(a).

Notwithstanding the Court’s decisions, on November 12, 2019, CMS finalized new OPPS reimbursement rates for 2020 which again reduced payments to off-campus provider-based departments for the same OPD services on the same ultra vires basis. 84 Fed.Reg. 61,142 (Nov. 12, 2019) (2020 Final Rule); see also 84 Fed.Reg. 39,398 (Aug. 9, 2019) (2020 Proposed Rule). Whereas the 2019 Final Rule explained at length the reasoning and mechanism by which CMS planned to cut reimbursement rates, see 2019 Final Rule at 59,004-15, the 2020 Final Rule was short, largely referring to the 2019 Final Rule for justification. See 2020 Final Rule at 61,365-69. Indeed, the 2020 Final Rule stated that it was a continuation of the "policy[ ] adopted in 2019" and that the rate cuts implemented "the second year of the 2-year phase-in" started by the 2019 Final Rule.2 Id. at 61,365. Given the timing, the 2020 Final Rule acknowledged the Court’s decisions in its response to comments but nevertheless persisted, stating merely that the government continued to believe in the merits of its legal position and that "the government has appeal rights, and is still evaluating

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the rulings and considering ... whether to appeal." Id. at 61,368.

Plaintiffs now move to enforce the Court’s September 17, 2019 Order against the 2020 Final Rule and strike it down before it is implemented. The government argues the Court lacks jurisdiction. The matter is ripe for review.[3]

I. DISCUSSION

Judicial review of Medicare claims is tightly restricted by the statute. "First, 42 U.S.C. § 405(h) divests the district courts of federal-question jurisdiction ‘on any claim arising under’ Title II of the Social Security Act, and it bars any ‘decision of the Commissioner of Social Security’ from being judicially reviewed, ‘except as herein provided’ in other Title II provisions." Am. Hosp. Ass’n v. Azar, 895 F.3d 822, 825 (D.C. Cir. 2018). Second, 42 U.S.C. § 405(g) provides an exception to this divestment of jurisdiction by permitting "any person to file a civil action, ‘after any final decision of the Commissioner of Social Security made after a hearing to which he was a party,’ to ‘obtain a review of such decision’ in federal district court." Id . Third, 42 U.S.C. § 1395ii incorporates these channeling provisions against claims brought under Title XVIII of the Social Security Act, i.e., against Medicare claims. Id. ;

see also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 7-9, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000).

As interpreted by the Supreme Court, a plaintiff must thus satisfy two requirements before seeking judicial review under § 405(g). First, a plaintiff must "present" their claim to the Secretary for a decision in the first instance. Am. Hosp. Ass’n, 895 F.3d at 825. "[T]his requirement is not waivable, because without presentment ‘there can be no ‘decision’ of any type,’ which § 405(g) clearly requires." Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Second, a plaintiff must exhaust all available administrative remedies. Id. at 826. Although this requirement is more demanding, it is also waivable. Id.

In AHA I, Plaintiffs properly presented their claims challenging the 2019 Final Rule to the Secretary, who rejected them. AHA I, 410 F.Supp.3d at 153, 2019 WL 4451984, at *7. Plaintiffs did not exhaust...

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