U.S. v. Upper Valley Clinic Hospital, Inc., 78-1693

• Decision Date: 10 April 1980
• Docket Number: No. 78-1693,78-1693
• Citation: 615 F.2d 302
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. UPPER VALLEY CLINIC HOSPITAL, INC. and Lower Valley Clinic, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 302

615 F.2d 302

UNITED STATES of America, Plaintiff-Appellant, v. UPPER VALLEY CLINIC HOSPITAL, INC. and Lower Valley Clinic Defendants-Appellees.

No. 78-1693.

United States Court of Appeals Fifth Circuit.

April 10, 1980.

David B. Palmer, Atty., Dept. of H. E. W., Baltimore, Md., for plaintiff-appellant.

Pearson & Caballero, Raymond C. Caballero, El Paso, Tex., for defendants-appellees.

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

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This is an appeal by the United States from a grant of summary judgment for the defendants, Upper Valley Clinic Hospital and Lower Valley Clinic (hereinafter the "Hospital"). The United States filed suit under 28 U.S.C. § 1345, seeking a refund from the Hospital for alleged Medicare overpayments. The district court granted summary judgment for the Hospital on the ground that the cause of action was time-barred. We hold that the suit is not barred by the statute of limitations and remand for trial.

The Act

The Medicare Act (hereinafter the "Act"), 42 U.S.C. § 1395 et seq., creates two types of federally funded medical assistance for the aged and disabled. Part A of the Act, the part applicable in the case at bar, authorizes financial assistance for inpatient hospital services and certain services following inpatient hospital care. Patients who qualify for aid under Part A receive their medical services free of charge. The Government, usually through fiscal intermediaries, ¹ then reimburses the "providers" for the services rendered.

At the time the Hospital was providing Medicare services, reimbursement was typically accomplished pursuant to one of two schemes. One plan envisioned full payment on an annual basis after the Medicare services were rendered. The provider of Medicare services (in this case, the Hospital) was to submit cost reports to its intermediary (in this case Blue Cross Association/Group Hospital Service, Inc.) at the end of each fiscal year. The intermediary (Blue Cross) then audited the report, ascertained the reasonable costs of the reimbursable services provided, and tendered the full amount due to the provider of Medicare services.

Alternatively, the provider of medical services could receive interim payments (made at least monthly) based upon estimates of its reimbursable services. Within three months of the end of the fiscal year, the provider of Medicare services was to submit a report to the intermediary (here, Blue Cross) detailing its actual costs. The intermediary (Blue Cross) was to then audit the report and make a retroactive adjustment, either giving the provider of services a credit or seeking a refund of a portion of the interim payments. This alternative scheme, still used today, has one substantial advantage: the provider of Medicare services does not have to go for an extended period of time within reimbursement for Medicare expenses. This was the repayment plan that the Hospital used.

Facts

From July 1, 1966 until September 21, 1969, the Hospital participated in the Medicare program as a "provider of services." It received reimbursement for its efforts from the intermediary, Blue Cross Association/Group Hospital Service, Inc. (hereinafter "Blue Cross"), on an interim basis, based upon estimates of the probable value of its reimbursable services. As discussed above, the Hospital, at the close of the fiscal year, was supposed to submit a cost report to Blue Cross so that Blue Cross could make appropriate retroactive adjustments. ²

In April 1968 the Hospital submitted its cost report for the year July 1, 1966 June 30, 1967. Blue Cross had an accounting firm audit this report, and, in March 1969, determined that the Hospital had received more Medicare funds than they were entitled to under law. In late 1970, after some accounting clarifications, Blue Cross determined that the Hospital received interim overpayments of $13,853 for the fiscal year 1966-1967. Blue Cross then issued the document "Retroactive Cost Adjustment Final" by December 9, 1970, requesting payment of the monies.

While Blue Cross was auditing the Hospital's 1966-1967 cost report, it was also trying to get the Hospital to file reports for the subsequent years. In October 1968 the Hospital requested an extension of time in which to file its report for the fiscal year July 1, 1967 June 30, 1968. Blue Cross granted the extension. On January 4, 1969 Blue Cross granted a second extension based upon a representation by one of the Hospital's administrators that the cost report was basically complete, but that the Hospital's accountants needed certain information from the (at that time) unfinished audit of the 1966-1967 report. When September 1969 rolled around sans report, Blue Cross threatened to cut-off the Hospital's current interim payments. Finally, on September 21, 1969, the Hospital closed the inpatient component of its facility and ceased participation in the Medicare program.

This severance did not end the reporting dispute. The Hospital still had not filed reports for July 1, 1967 June 30, 1968; July 1, 1968 June 30, 1969; and July 1, 1969 September 21, 1969. In October 1969 Blue Cross informed the Hospital that there could be no final settlement of the Medicare accounts until the outstanding reports were filed. In March 1970 the Hospital and Blue Cross agreed that Blue Cross's auditors would prepare the reports for the Hospital based upon records the Hospital was to furnish. Nothing ever came of this agreement.

At this point Blue Cross began making collection demands. On December 9, 1970, Blue Cross wrote the Hospital a letter indicating that all interim payments since July 1, 1967 were deemed overpayments and must be refunded. Blue Cross threatened court action and stated that it was referring the matter to the General Accounting Office. In the last paragraph of the letter Blue Cross noted: "Filing an acceptable Medicare cost report immediately will eliminate us proceeding with this matter." The letter produced no action.

On July 30, 1971 Blue Cross sent the Hospital a collection letter for only the $13,853 in overpayments from the first reporting period. This letter produced a response. Approximately one month later, in early September, the Hospital's accountant acknowledged that the reports were due and promised them. The accountant stated that he had been re-employed to prepare the reports and that he had been working on them for nine months.

In December 1971 the Hospital's accountant again wrote to Blue Cross, without prompting from Blue Cross, and promised the reports. He indicated that parts of the report were complete, but that he anticipated further delay. He stressed that "all due care and speed" was being exercised and promised the reports "as required." This promise was renewed in early 1974, and the Hospital stated that the three overdue reports would be ready by the fall. The reports never were prepared and the Hospital never refunded the alleged $13,853 overpayment for 1966-67.

On December 27, 1976 the United States brought this action to recover $357,208.47 in overpayments. $13,853 of this amount represented the overpayment for the period July 1, 1966 June 30, 1967. The remainder constituted all the interim Medicare payments received by the Hospital from July 1, 1967 to September 21, 1969, the period for which the Hospital failed to file cost reports.

The district court granted summary judgment for the Hospital, holding that the six year statute of limitations, 28 U.S.C. § 2415(a), barred the cause of action. The court held that the overpayment claim based on the audited report accrued by December 9, 1970, when Blue Cross issued the "Retroactive Cost Adjustment Final" document to the Hospital. Since suit was not filed until December 26, 1976, this claim was time barred. The Government does not appeal from this ruling. The district judge also held that the overpayment claim based on the failure to file a report from July 1, 1967 September 21, 1969 accrued by January 1, 1970. The court reasoned that the reports were due within three months of the end of the reporting period. The last report was due December 31, 1969. The causes of action for these overpayments accrued by that time. Since suit was not filed until December 26, 1976, over six years later, these claims were also time-barred. The Government brings this appeal from the district judge's second ruling.

Cause of Action

The Hospital initially argues that we need not reach the statute of limitations question because the Government has no cause of action for the recovery of payments when the provider of Medicare services fails to submit cost reports. We find this contention to be without merit.

42 U.S.C. § 1395g ³ creates the interim payment procedure and provides for "necessary adjustments on account of previously made overpayments or underpayments . . . ." The statute contemplates the Government "making corrective adjustments for improper payment of Medicare monies . . . ." Springdale Convalescent Center v. Mathews, 545 F.2d 943, 952 (5th Cir. 1977). It has been recognized that this scheme includes the right to file suit for alleged overpayment of the reasonable costs of services after the provider of Medicare services' cost reports have been audited. United States v. Withrow, 593 F.2d 802 (7th Cir. 1979). In Withrow the court also recognized that...