Sun Towers, Inc. v. Schweiker, 82-1027

• Citation: 694 F.2d 1036
• Decision Date: 06 January 1983
• Docket Number: No. 82-1027,82-1027
• Parties: SUN TOWERS, INC., A Texas Corporation, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1036

694 F.2d 1036

SUN TOWERS, INC., A Texas Corporation, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 82-1027.

United States Court of Appeals, Fifth Circuit.

Jan. 6, 1983.

Weissburg & Aronson, Inc., Patric Hooper, Los Angeles, Cal., for plaintiff-appellant.

Patricia Yonushonis, Atty., Dept. of Health & Human Services, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, REAVLEY and TATE, Circuit Judges.

TATE, Circuit Judge:

The plaintiff Sun Towers, Inc. (Sun Towers) appeals from the district court's grant of summary judgment in favor of the defendant Secretary of Health and Human Services (Secretary) after judicial review of the administrative record in the case. The issue was whether the plaintiff, a corporation that operates a hospital in El Paso, Texas, was entitled to additional per diem patient care allotments made to Medicare providers under 42 C.F.R. Sec. 405.452(d)(10). ¹ Separate accounting and expense reimbursement on a per diem basis for Medicare patient-incurred costs are available for care given in "intensive care units, coronary care units, and other special care inpatient units", defined in Sec. 405.452(d)(10) as "one in which the care required is extraordinary and on a concentrated and continuous basis." The plaintiff argues that one of the units in its hospital, the Intermediate Care Unit, qualifies as "special care unit" within the meaning of the regulation.

This Intermediate Care Unit provides twenty-four hour telemetric monitoring of cardiac patients. Each patient in the unit is attached with a small radio transmitter that transmits heart rhythms to a central monitoring system that is staffed by specially-trained personnel. This system affords the patient greater mobility than in the intensive care and coronary care units--in which the patients are usually bed-ridden, monitored by movement-restrictive machinery, and watched closely and attended by specially-trained nurses--while having a greater level of cardiac monitoring than in regular wards. The Intermediate Care Unit involves expenses of around $88 per day, greater than the per diem costs in the regular wards of the plaintiff's hospital ($70), but significantly less than per diem costs in its Intensive Care Unit ($300).

The district court found supported by substantial evidence in the record the Secretary's determination that the plaintiff's Intermediate Care Unit does not furnish care that is "extraordinary, concentrated and continuous" within the meaning of the regulation. We affirm. Judicial review of the Secretary's actions is governed by 42 U.S.C. Sec. 1395oo (f), which provides that section 706 of the Administrative Procedure Act, 5 U.S.C. Sec. 706, controls our standard of review. The district court, and this court, thus may overturn the Secretary's decision only if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole. We...