Baystate Medical Center v. Leavitt

• Decision Date: 07 November 2008
• Docket Number: Civil Action No. 06-1263 (JDB).
• Parties: BAYSTATE MEDICAL CENTER, Plaintiff, v. Michael O. LEAVITT, Secretary, United States Department of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — District of Columbia

587 F.Supp.2d 37

BAYSTATE MEDICAL CENTER, Plaintiff, v. Michael O. LEAVITT, Secretary, United States Department of Health and Human Services, et al., Defendants.

Civil Action No. 06-1263 (JDB).

United States District Court, District of Columbia.

November 7, 2008.

Christopher L. Keough, Stephanie Ann Webster, King & Spalding, LLP, John Martin Faust, Vinson & Elkins, LLP, Lisa Ann Olson, U.S. Department of Justice, Washington, DC, for Plaintiff.

Brian G. Kennedy, Lisa Ann Olson, U.S. Department Of Justice Washington, DC, Robert L. Roth, Crowell & Moring LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

This matter comes before the Court on the motion of plaintiff Baystate Medical Center ("Baystate") to amend the Memorandum Opinion and Order issued on March 31, 2008 ("Mem. Op.").¹ In that opinion, the Court reviewed the final decision of the Secretary of the Department of Health and Human Services ("Secretary") concerning the calculation of payments known as "disproportionate share hospital" ("DSH") adjustments to Baystate for fiscal years 1993-1996. The Court held that certain aspects of the Secretary's decision were arbitrary and capricious and other aspects were inadequately explained or required further evidentiary proceedings. In considering the appropriate remedy, the Court rejected Baystate's request to order the agency to take a series of specific actions on remand because it ran afoul of settled precedent prohibiting the Court from "retain[ing] jurisdiction to devise a specific remedy for the Secretary to follow." 545 F.Supp.2d at 58. The Court then remanded the case to the Secretary "for further action consistent with th[e] Memorandum Opinion," including further evidentiary proceedings and explanation. Order at 1 (filed Mar. 31, 2008); 545 F.Supp.2d at 58.

Baystate now moves to amend the portions of the Court's decision addressing remedy. Specifically, Baystate requests an order expressly vacating the Secretary's decision and requiring recalculation and payment of the amounts due, as well as interest under the statute. Baystate also requests that no further evidentiary proceedings and explanation in support of the existing decision be allowed because there is a strong likelihood that such proceedings would be futile and would add unnecessary delay. Lastly, Baystate fears that the Secretary will not fully implement the Court's decision and, hence, asks the Court to retain jurisdiction, set a reasonable timetable for corrective action, require progress reports, and provide directions to the Secretary that would provide Baystate with a "reasonable means of reaching assurance that the errors ... have been properly corrected." Pl.'s Mot. at 11-16. The Court addresses each of Baystate's requests below.

I. Vacatur and Recalculation of Payments

The first part of Baystate's request is easily resolved. The Memorandum Opinion effectively imposes an obligation on the Secretary, acting through the Administrator of the Centers for Medicare and Medicaid Services ("CMS"), to recalculate the SSI fractions based on the best available data and then revise the DSH payments owed to Baystate. See 545 F.Supp.2d at 57-58 (holding that the Administrator failed to use the "best available data" in several respects, and that "the Administrator's decision to deny retrospective relief was arbitrary and capricious"). Baystate asks the Court to make this ruling more explicit—that is, to expressly vacate the Secretary's final decision and require the Secretary to pay Baystate the additional DSH amounts due as a result of the forthcoming corrections to the calculation of the SSI fraction. See Pl.'s Mot. at 3-5, 11. Baystate also has informed the Court that interest on those sums is due in accordance with 42 U.S.C. § 1395oo(f)(2). Id. at 11. The government concurs with these aspects of Baystate's request for relief. Def.'s Opp'n at 3. The Court agrees that an order expressly vacating the Secretary's final decision, requiring recalculation and payment of further sums due, and awarding interest under § 1395oo(f)(2) is appropriate, and will enter an order granting Baystate such relief.

II. Further Proceedings on Remand

Both Baystate and the Secretary ask the Court to reconsider that part of the decision holding that "a remand is necessary to determine whether individuals without Title II numbers were excluded from the match process and also to allow the Administrator to articulate a reasoned explanation, if there is one, for why social security numbers and other patient identifiers (such as the patient's name) are not the `best available data' that should be incorporated into the match process." 545 F.Supp.2d at 48-49. Baystate opposes such further proceedings on the ground that there is a strong likelihood that they would be futile and would add unnecessary delay.² See Pl.'s Mot. at 6-11.

The Secretary also wishes to dispense with further evidentiary proceedings on these issues, but for an entirely different reason. He intends, in essence, to abandon the SSI eligibility tapes that were previously used to determine the number of patients receiving SSI benefits (the "numerator" of the SSI fraction) and begin anew with SSI eligibility data tapes compiled by the Social Security Administration ("SSA") long after the fiscal years at issue.³ See Def.'s Opp'n at 5. He anticipates that these updated tapes will cure all of the flaws identified by the Court and he further explains that this approach is borne of necessity:

[T]he Court held that, for each of Plaintiff's fiscal years 1993 through 1996 ..., the Secretary should have used the later of the two SSI eligibility tapes that were furnished by the Social Security Administration ("SSA"). Mem. Op. at 37-40 . However, neither CMS nor SSA has been able to locate any of the SSI eligibility data tapes that were provided to CMS by SSA contemporaneously with each specific year at issue. Accordingly, in recalculating Plaintiffs SSI fraction for each year at issue, CMS would have to use an updated SSI eligibility data tape furnished by SSA. These updated SSI eligibility data tapes would be compiled long after the fiscal years at issue, which will allow retroactive changes in SSI eligibility status to be accounted for in CMS's new data matching process....

... In recalculating the disputed SSI fractions, SSI eligibility records that lacked Title II numbers, on the updated SSI eligibility data tapes furnished by SSA, would be accounted for in the process of matching Medicare Part A eligibility information (from the MEDPAR data file) with SSI eligibility information (from the updated data files furnished by SSA)....

Id. at 5-6. The Secretary recognizes that the Court also ordered a remand for a reasoned explanation, if there is one, for why social security numbers and other patient identifiers (such as the patient's name) are not the "best available data" for purposes of matching Medicare beneficiaries with SSI recipients. Id. at 7. He represents, however, that this is no longer necessary because "in recalculating the disputed SSI fractions, the agency would use SSNs in the data matching process." Id.

In light of the Secretary's representations, and Baystate's longstanding position in support of the use of updated SSI data, the Court agrees that it makes no sense to enforce the remand for additional evidentiary proceedings on whether SSI records lacking Title II numbers were, in the past, excluded from the match process, or to require the Secretary to further explain the practice of omitting social security numbers from the match process for the years at issue. Of course, any future explanation in support of the recalculations of Baystate's SSI fractions for the years at issue will presumably describe how the social security numbers and other patient identifiers were incorporated into the match process and also address the principal problem that "missed matches" will result if inconsistent patient identifiers are utilized.⁴ See 545 F.Supp.2d at 47-48.

III. Retention of Jurisdiction

Lastly, Baystate asks the Court (1) to retain jurisdiction while the Secretary implements further proceedings on remand, (2) direct completion of the remand proceedings within a reasonable period, (3) require progress reports, and (4) require the Secretary to provide Baystate with "reasonable means of reaching assurance that the errors in the Secretary's prior calculations have been properly corrected in accordance with the Court's order." See Pl.'s Mot. at 11-16. Baystate concedes that the Court is without authority to craft or direct a specific remedy on remand, but believes retention of jurisdiction and the requested level of oversight is permissible. The Secretary opposes this last request in its entirety, noting that the Court already has rejected Baystate's request for a deadline for completing the remand proceedings and for recalculation instructions beyond the standards already described in the Memorandum Opinion. Def.'s Opp'n at 8-11.

The Court recognizes that it has the discretion to retain jurisdiction over a case pending completion of a remand and to order the filing of progress reports. See Cobell v. Norton, 240 F.3d 1081, 1109 (D.C.Cir.2001). However, this discretion is typically reserved for cases alleging unreasonable delay of agency action or failure to comply with a statutory deadline, or for cases involving a history of agency noncompliance with court orders or resistance to fulfillment of legal duties. Id. (citing In re United Mine Workers of Amer. Int'l Union, 190 F.3d 545, 546 (D.C.Cir.1999), Northern States Power Co. v. U.S. Dep't of Energy, 128 F.3d 754, 760 (D.C.Cir.1997), and Air Line Pilots Ass'n v. Civil Aeronautics Bd., 750 F.2d 81, 88-89 (D.C.Cir.1984)). The Court does not find any of those circumstances present here.⁵ The norm is to vacate agency action that is held to be arbitrary and capricious and remand for further proceedings...