Milo Community Hosp. v. Weinberger, No. 75-1205

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore COFFIN, Chief Judge, McENTEE; COFFIN
Citation525 F.2d 144
Parties, 6 Envtl. L. Rep. 20,027 MILO COMMUNITY HOSPITAL, etc., Plaintiff-Appellant, v. Caspar W. WEINBERGER et al., Defendants-Appellees.
Docket NumberNo. 75-1205
Decision Date14 November 1975

Page 144

525 F.2d 144
8 ERC 1588, 6 Envtl. L. Rep. 20,027
MILO COMMUNITY HOSPITAL, etc., Plaintiff-Appellant,
v.
Caspar W. WEINBERGER et al., Defendants-Appellees.
No. 75-1205.
United States Court of Appeals,
First Circuit.
Argued Sept. 10, 1975.
Decided Nov. 14, 1975.

Joseph J. Bichrest, Greenville, Me., for appellant.

Lawrence E. Burstein, Asst. Regional Atty., Region I, United States Dept. of Health, Education and Welfare of Boston Mass., with whom Peter Mills, U. S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and THOMSEN, * Senior District Judge.

COFFIN, Chief Judge.

The Milo Community Hospital, a sixteen bed private non-profit hospital in Milo, Maine, brought suit in the district court to enjoin defendant Secretary of Health, Education, and Welfare and other relevant officials (HEW) from terminating its federally assisted status as a "provider of services" under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (the Medicare Act). The

Page 145

hospital attacked HEW's decision in two counts of its complaint: in Count One it alleged that HEW had not prepared and issued an Environmental Impact Statement in compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA); in Count Two it charged that the termination was arbitrary, capricious, and a denial of equal protection. Jurisdictional grounds asserted were 42 U.S.C. § 4332(2)(C); 5 U.S.C. §§ 702 and 706; and 28 U.S.C. §§ 1331, 1343, and 1361. Defendants denied jurisdiction under both counts and generally admitted the factual allegations. They further answered, as to Count One, that the decertification of a provider under the Medicare Act is controlled by statute and regulation and is not a "major Federal action significantly affecting the quality of the human environment" under NEPA; and, as to Count Two, that the hospital had failed to exhaust its administrative remedies. From a judgment in favor of defendants, entered after hearing by the court, the hospital appeals.

The relevant factual background is the following. Appellant has been authorized to furnish federally compensable Medicare services as a "provider of services", as the term is defined in 42 U.S.C. § 1395x. 1 In October, 1973, the Bureau of Health Insurance of the Social Security Administration notified the hospital of a number of respects in which its facilities failed to comply with the 1967 edition of the National Fire Protection Association's Life Safety Code, the relevant set of standards made applicable by 20 C.F.R. 405.1022(b). 2 After a year of discussion, rectification of some deficiencies, and extensions of time for the hospital to submit an acceptable plan of correction, the Bureau, in November, 1974, issued its formal letter, notifying the hospital that, as of December 13, 1974, its Medicare provider agreement would be terminated. The hospital was advised that, if the Medicare program requirements were met in the future, it could request re-establishment of its eligibility to participate as a provider. It was further advised of its rights to request and have a hearing before an administrative law judge within six months. 3 While the hospital sought, and was denied, reconsideration, it did not seek administrative review of the Bureau's action, but brought this suit.

During the same period, the Bureau had advised two other small hospitals in nearby towns of their failure to comply with the Life Safety Code. One, in Dexter, was terminated as a provider in December, 1974. The other, in Dover-Foxcroft, was allowed, subject to correcting certain deficiencies, to continue as a provider, pending construction of a new regional hospital in the same town a project in which Dover-Foxcroft and several other communities had voted to participate and for which a firm time schedule had been determined. 4 The town of Milo voted twice not to join the new Hospital Administrative District, the second occasion of such vote being in December, 1974, at which time Milo also

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voted to appropriate.$390,000 for new hospital facilities and to raise $150,000 by a fund drive. As of March 5, 1975, the date of hearing before the district court, no firm plan for construction and financing had been submitted.

The district court found that termination of the hospital's provider status would force it to close, causing Milo patients to travel 13 miles to Dover-Foxcroft or 32 miles to Bangor. In addition to the deprivation of local hospital facilities, the town would lose some $170,000 in annual hospital payroll and $30,000 in annual local purchases. Established by stipulation were the facts that HEW had not filed an Environmental Impact Statement (EIS) and, indeed, that its position has always been that 42 U.S.C. § 4332(2)(C) of the National Environmental Protection Act was not applicable to certification and decertification decisions under the Medicare Act.

The district court held that it had jurisdiction, that as to Count One HEW was not required to file an EIS before terminating the hospital's provider status, 5 and as to Count...

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19 practice notes
  • Excel Home Care v. U.S. Dept. of Hhs, No. CIV.A.03-CV-11767-GA.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • October 29, 2004
    ...however, establishes the exact framework for obtaining judicial review of the Secretary's decision. Milo Community Hospital v. Weinberger, 525 F.2d 144, 146 (1 Cir., 1975). It provides, in pertinent part, that an individual may challenge "any final decision of the Commission of Social Secur......
  • John Muir Mem. Hosp., Inc. v. Califano, No. C-77-1854-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 22, 1978
    ...They simply require that they be brought under jurisdictional grants contained in the Act * *"); Milo Community Hosp. v. Weinberger, 525 F.2d 144, 145, 147 (1 Cir. 1975) (no jurisdiction over provider's claim that its termination from Medicare program violated due process and equal protecti......
  • Pacific Legal Foundation v. Andrus, No. 79-1451
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 19, 1981
    ...of Health, Education, and Welfare from the requirement of filing an impact statement. See Milo Community Hospital v. Weinberger, 525 F.2d 144, 147 (1st Cir. 1975). The issue there was whether or not HEW had to file an impact statement before terminating a hospital's federally assisted statu......
  • Am. Airlines v. Texas Dept. of Transp., DALLAS-FORT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 1, 2000
    ...make little sense to force the ICC to consider factors which cannot affect its decision . . . ."); Milo Community Hospital v. Weinberger, 525 F.2d 144, 147 (1st Cir. 1975) (finding that no EIS was necessary where "consideration of the factors that the appellant has characterized as 'environ......
  • Request a trial to view additional results
19 cases
  • Excel Home Care v. U.S. Dept. of Hhs, No. CIV.A.03-CV-11767-GA.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • October 29, 2004
    ...however, establishes the exact framework for obtaining judicial review of the Secretary's decision. Milo Community Hospital v. Weinberger, 525 F.2d 144, 146 (1 Cir., 1975). It provides, in pertinent part, that an individual may challenge "any final decision of the Commission of Social Secur......
  • John Muir Mem. Hosp., Inc. v. Califano, No. C-77-1854-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 22, 1978
    ...They simply require that they be brought under jurisdictional grants contained in the Act * *"); Milo Community Hosp. v. Weinberger, 525 F.2d 144, 145, 147 (1 Cir. 1975) (no jurisdiction over provider's claim that its termination from Medicare program violated due process and equal protecti......
  • Pacific Legal Foundation v. Andrus, No. 79-1451
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 19, 1981
    ...of Health, Education, and Welfare from the requirement of filing an impact statement. See Milo Community Hospital v. Weinberger, 525 F.2d 144, 147 (1st Cir. 1975). The issue there was whether or not HEW had to file an impact statement before terminating a hospital's federally assisted statu......
  • Am. Airlines v. Texas Dept. of Transp., DALLAS-FORT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 1, 2000
    ...make little sense to force the ICC to consider factors which cannot affect its decision . . . ."); Milo Community Hospital v. Weinberger, 525 F.2d 144, 147 (1st Cir. 1975) (finding that no EIS was necessary where "consideration of the factors that the appellant has characterized as 'environ......
  • Request a trial to view additional results

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