Cumberland County Hospital v. Sylvia Burwell
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cv-00508-BR. [999768794]. [15-1393]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1393
CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., d/b/a
Valley Health System,
Cape Fear
Plaintiff - Appellant,
v.
SYLVIA MATHEWS BURWELL, in her official
Secretary of Health and Human Services,
capacity
as
Defendant - Appellee.
----------------------------------FUND FOR ACCESS TO INPATIENT REHABILITATION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:14-cv-00508-BR)
Argued:
January 26, 2016
Decided:
March 7, 2016
Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.
Affirmed
opinion,
joined.
by
in
published opinion.
Judge Niemeyer wrote the
which Chief Judge Traxler and Judge Wilkinson
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ARGUED: Kathryn Frances Taylor, K&L GATES LLP, Morrisville,
North Carolina, for Appellant.
Joshua Marc Salzman, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Thomas G. Walker, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina; William B. Schultz, General Counsel, Janice L.
Hoffman, Associate General Counsel, Susan Maxson Lyons, Deputy
Associate General Counsel, Kirsten Friedel Roddy, Attorney,
UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Washington,
D.C., for Appellee.
Ronald S. Connelly, POWERS PYLES SUTTER &
VERVILLE, PC, Washington, D.C., for Amicus Curiae.
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NIEMEYER, Circuit Judge:
Cumberland County Hospital System, Inc., d/b/a Cape Fear
Valley Health System (“Cape Fear Health System” or “the Hospital
System”), commenced this action to obtain a writ of mandamus
compelling the Secretary of the Department of Health and Human
Services (“HHS”)
to
adjudicate
immediately
its
appeals on claims for Medicare reimbursement.
its
appeals
on
Administrative
such
claims
Law
Judge
awaiting
(“ALJ”)
for
administrative
With over 750 of
assignment
more
than
an
days,
90
to
the
Hospital System asserts that the Secretary’s delay violates the
congressional mandate that its appeals be heard and decided by
ALJs within 90 days.
See 42 U.S.C. § 1395ff(d)(1)(A).
The parties agree that, as of February 2014, the Secretary
had
480,000
appeals
awaiting
assignment
to
an
ALJ,
and
the
Secretary conceded in her brief that the number had by then
climbed
backlog.
to
more
While
than
800,000
appeals,
acknowledging
the
creating
a
unacceptability
ten-year
of
the
backlog, the Secretary attributes it to an increased number of
appeals within the Medicare system and inadequate funding by
Congress to hire additional personnel.
The
district
court
complaint, relying on two
dismissed
the
Hospital
independent grounds.
System’s
It held (1)
that the Hospital System does not have a clear and indisputable
right to an ALJ hearing within a 90-day time frame, as required
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for issuance of a mandamus order, and (2) that the political
branches, rather than the courts, are best suited to address the
backlog in the administrative process.
We affirm.
While we agree that the delay in the administrative process
for
Medicare
reimbursement
is
incontrovertibly
grotesque,
the
Medicare Act does not guarantee a healthcare provider a hearing
before an ALJ within 90 days, as the Hospital System claims.
Rather,
it
provides
a
comprehensive
administrative
process --
which includes deadlines and consequences for missed deadlines
-- that
a
healthcare
provider
must
exhaust
before
ultimately
obtaining review in a United States district court.
Indeed,
within that administrative process, a healthcare provider can
bypass
administrative
reviews
if
such
reviews
are
delayed,
“escalating” for review by a United States district court within
a relatively expeditious time.
now,
however,
directing
the
The issuance of a judicial order
Secretary
to
hear
the
Hospital
System’s claims in the middle of the administrative process,
would unduly interfere with the process and, at a larger scale,
the work of the political branches.
Moreover, such intervention
would invite other healthcare providers suffering similar delays
to likewise seek a mandamus order, thereby effectively causing
the judicial process to replace and distort the agency process.
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I
Cape Fear Health System operates a number of facilities in
eastern North Carolina, delivering medical services to, among
others, beneficiaries of Medicare.
The Medicare Act establishes
a federally subsidized health insurance program for the elderly
and disabled that is administered by the Secretary.
See 42
U.S.C. § 1395 et seq.
In
2012
and
Hospital
System
Medicare
services
September
2014,
2013,
on
the
over
that
the
Secretary
900
she
Hospital
claims
had
denied
for
initially
System
had
payment
to
the
reimbursement
for
authorized.
By
over
750
appeals
on
these claims that had been pending for more than 90 days before
the Office of Medicare Hearings and Appeals (“OMHA”) within HHS.
Those
appeals
reimbursement.
related
to
claims
for
some
$12.3
million
in
The Secretary has not even acknowledged receipt
of some of the appeals, and with respect to others, she has
reported a delay of over two years in assigning them to an ALJ.
Because reimbursement of such a large sum is essential to the
Hospital System’s operations, the Hospital System commenced this
action for a writ of mandamus, ordering the Secretary to docket,
assign to an ALJ, and decide its appeals within 90 days, as
required by the Medicare Act.
See 42 U.S.C. § 1395ff(d)(1)(A).
It also seeks a declaratory judgment that the Secretary’s “delay
in adjudication of Medicare appeals violates federal law.”
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In
its
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complaint,
the
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Hospital
System
alleged
that
the
number of appeals to ALJs quintupled during the two years of
2012 and 2013, increasing from 92,000 to 460,000, and that the
ALJs’ workload increased by almost 300% from fiscal year 2012 to
fiscal year 2013.
It alleged that, as of February 2014, 480,000
appeals were awaiting assignment to ALJs.
The Secretary does
not deny the existence of the backlog, nor its size, as the
figures alleged by the Hospital System are those published by
HHS.
Indeed, in her brief, the Secretary acknowledged that the
backlog has grown rapidly to more than 800,000 appeals and that,
with OMHA’s current staffing of ALJs, it would take over ten
years for the ALJs to dispose of those appeals.
The allegations
of the parties do, however, attribute the backlog to different
causes.
The Secretary asserts that the backlog is the result of an
increased
utilization
additional
appeals
of
from
Medicare-covered
audits
conducted
services;
under
the
the
Recovery
Audit Program instituted in 2010; and additional Medicaid State
Agency appeals of Medicare coverage denials for beneficiaries
enrolled in both Medicare and Medicaid.
been
unable
congressional
to
reduce
funding
or
has
even
She notes that she has
stabilize
remained
the
relatively
backlog
because
stagnant
during
the last five years and additional ALJs therefore could not and
cannot be hired.
She states, however, that the President’s 2016
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budget proposes more than tripling the funding for OMHA and, in
addition,
proposes
new
processes
that
would
facilitate
the
resolution of appeals at earlier stages in the administrative
process.
Finally, the Secretary points out that Congress has
been aware of the existing backlog for some time, has recognized
the need for a legislative solution, and, indeed, is working on
a solution.
Cape Fear Health System does not disagree completely, but
it contends that the backlog is mainly due to the Secretary’s
mismanagement of HHS resources.
The Hospital System points out
that,
proposed
while
the
agency
has
pilot
programs
for
alternative dispute resolution with respect to some types of
reimbursement, it has not made those programs available for the
types of reimbursement being claimed by the Hospital System.
Furthermore, the Hospital System contends that the increase in
appeals from audits conducted pursuant to the Recovery Audit
Program
is
attributable
to
the
perverse
incentives
of
that
program, which pays contractors contingency compensation based
on monies they recover in denying improper or excessive claims.
Regardless of the cause, however, the parties agree, and
the district court found, that appeals have “skyrocketed” and
have “overwhelmed” the Medicare reimbursement process.
The
district
court
granted
the
Secretary’s
motion
to
dismiss the Hospital System’s complaint under Federal Rule of
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Civil Procedure 12(b)(6), relying on two independent grounds for
doing so.
First, the court concluded that the Hospital System’s
complaint failed to state a plausible claim for a mandamus order
because (1) it failed to demonstrate a “clear and indisputable
right” to relief, as Congress did not grant the Hospital System
“an absolute right to an ALJ hearing . . . within the 90-day
timeframe,” and (2) it failed to demonstrate that the Secretary
has “a clear duty to provide such a hearing” within the 90-day
time
frame.
Second,
as
a
matter
of
discretion,
the
court
concluded that to grant mandamus relief would inappropriately
“intermeddle”
would
fail
advantage
in
adjudication
with
to
the
recognize
crafting
of
agency’s
a
appeals.”
problem-solving
“HHS’s
comparative
solution
The
to
court
the
efforts
and
institutional
delays
explained
in
that
the
“the
political branches are best-suited to alleviate OMHA’s crippling
delays.”
The court also noted in this regard that putting the
Hospital System “at the head of the queue,” where doing so would
simply move all others back one space and would produce no net
gain, should be avoided as a matter of equity.
The district court also denied the Hospital System’s claim
for declaratory relief, reasoning that, because the Declaratory
Judgment Act does not supply a right of action in the absence of
a valid substantive claim, dismissal of the Hospital System’s
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declaratory judgment must necessarily follow dismissal of its
mandamus claim.
Cape Fear Health System filed this appeal.
II
Mandamus is a “drastic” remedy that must be reserved for
“extraordinary situations” involving the performance of official
acts or duties.
Kerr v. U.S. Dist. Court for the N. Dist. of
Cal., 426 U.S. 394, 402 (1976).
Accordingly, to show that it is
entitled to mandamus relief, a plaintiff must show, among other
things,
that
it
has
a
“clear
and
indisputable
right
to
the
relief sought” and that the responding party has a “clear duty
to do the specific act requested.”
United States ex rel. Rahman
v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999).
In this case, Cape Fear Health System contends that the
Medicare Act gives it a clear and indisputable right to have its
appeals
decided
within
90
days
and
that
Secretary a clear duty to accomplish that.
it
imposes
on
the
In support of this
contention, it emphasizes the mandatory language of the Act,
which provides that an ALJ “shall conduct and conclude a hearing
. . . and render a decision on such hearing by not later than
the end of the 90-day period beginning on the date a request for
hearing has been timely filed.”
(emphasis added).
42 U.S.C. § 1395ff(d)(1)(A)
It also points to the Chief ALJ’s recent
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testimony before a congressional committee that the deadlines
for ALJs’ decisions were set and OMHA was created to “reduce the
average . . . waiting time for a hearing decision” that occurred
under the prior scheme.
It argues that the escalation mechanism
in the Medicare Act -- a mechanism whereby healthcare providers
can bypass ALJ review if they are delayed and proceed to the
Departmental Appeals Board and ultimately to the courts, see id.
§ 1395ff(d)(3) -- does not diminish its right to an ALJ hearing
because escalation is not mandatory but may be employed at the
“discretion of the appellant.”
And, in any event, it maintains
that electing to bypass the ALJ hearing would result in its
foregoing its right to create an administrative record at the
ALJ
hearing,
thus
forcing
it
to
make
a
“terrible
choice”:
either “waive its right to due process” (i.e., to make a record)
or “suffer interminably until the Secretary feels like affording
[it] a hearing.”
The Secretary, by contrast, maintains that “the Medicare
statute does not confer on [the Hospital System] a right to a
hearing within 90 days that is enforceable through mandamus,”
emphasizing that the statute provides that “the consequence of
failing
to
adjudicate
an
appeal
within
90
days
is
that
the
provider may escalate that appeal to the [Departmental Appeals
Board].”
The
Secretary
argues
that,
while
the
statute
establishes a time frame for decisions, “it also recognizes that
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the time frame may not be satisfied and provides persons seeking
review
with
Secretary
a
specific
argues,
provided,”
to
of
relief.”
such
escalation
“is
Hospital
the
entitlement
avenue
System
Because,
“cannot
any
other,”
regardless
the
remedy
show
of
as
the
Congress
indisputable
whether
escalation
adequately ensures the particular administrative review that the
Hospital System seeks.
We
begin
by
noting
that
the
process
that
Congress
has
provided for obtaining Medicare reimbursement and administrative
review of reimbursement decisions is comprehensive and specific
-- a “coherent regulatory scheme,” Gustafson v. Alloyd Co., 513
U.S. 561, 569 (1995) -- which begins with the submission of a
claim
for
multistep
reimbursement,
continues
administrative
process,
provision for judicial review.
full
process
argument
is
that
a
necessary
court
through
and
a
detailed
concludes
with
and
the
Accordingly, understanding the
to
address
should
the
enforce
a
Hospital
System’s
specific,
discrete
element of the process through a writ of mandamus.
To obtain reimbursement for Medicare services, a healthcare
provider
Medicare
retained
must,
in
the
first
Administrative
by
HHS
to
make
instance,
Contractor,
an
initial
submit
a
a
claim
private
11
a
contractor
determination
whether and in what amount the claim should be paid.
U.S.C. §§ 1395ff(a), 1395kk-1(a).
to
regarding
See 42
That determination by the
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Medicare
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Administrative
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Contractor
may,
under
a
program
that
Congress established in 2010, be audited by a different thirdparty
government
Contractor.
audit
contractor,
known
as
See id. § 1395ddd(h)(3).
program
to
overpayments,”
serve
and
it
“the
a
Recovery
Audit
Congress created that
purpose
incentivized
of
the
. . .
recouping
Recovery
Audit
Contractors by paying them “on a contingent basis for collecting
overpayments.”
Id.
§ 1395ddd(h)(1).
Healthcare
providers
wishing to challenge these initial claim determinations by the
Medicare
Administrative
Contractor
or
the
Recovery
Audit
Contractor must pursue a comprehensive, four-step administrative
review process before seeking review in court.
At the first step, a healthcare provider dissatisfied with
either the initial determination or the results of an audit may
seek a redetermination from the original Medicare Administrative
Contractor.
if
the
See 42 U.S.C. § 1395ff(a)(3).
healthcare
redetermination,
it
provider
may
seek
is
At the second step,
dissatisfied
reconsideration
by
with
a
the
Qualified
Independent Contractor (“QIC”), another third-party government
contractor retained to independently “review the evidence and
findings upon which the [previous determination was] based.”
C.F.R. § 405.968(a)(1); 42 U.S.C. § 1395ff(c).
QIC
may
receive
and
consider
“any
In doing so, the
additional
evidence
parties submit or that the QIC obtains on its own.”
12
42
the
42 C.F.R.
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§ 405.968(a)(1).
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At the third step, the healthcare provider may
challenge the QIC’s decision by requesting a hearing before an
ALJ.
See 42 U.S.C. § 1395ff(d)(1); 42 C.F.R. § 405.1000.
The
ALJ hearing process is administered by OMHA, a division within
HHS that is independent of and funded through an appropriation
separate from the division that oversees the contractors’ review
during the first two steps of the administrative review process.
See Medicare Prescription Drug, Improvement, and Modernization
Act of 2003, Pub. L. No. 108-173, § 931, 117 Stat. 2066, 239699;
Statement
of
Organization,
Functions,
and
Delegations
Authority, 70 Fed. Reg. 36386-04 (June 23, 2005).
of
At the fourth
step, the healthcare provider may appeal the ALJ’s decision to
the
Departmental
U.S.C.
Appeals
§ 1395ff(d)(2).
Board
for
The
de
novo
Departmental
review.
Appeals
See
42
Board’s
decision becomes the final decision of the Secretary, which may
then be reviewed in court.
See id. § 1395ff(b)(1)(A); 42 C.F.R.
§ 405.1130.
The Medicare Act establishes deadlines for each step in the
administrative
review
process
and
when such deadlines are not met.
specifies
the
consequences
The Act directs that the first
two steps of administrative review be completed by the Medicare
Administrative Contractor and the QIC, respectively, within 60
days. 42 U.S.C. §§ 1395ff(a)(3)(C)(ii), 1395ff(c)(3)(C)(i).
If
the QIC fails to meet this deadline, the healthcare provider may
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bypass
the
QIC
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determination
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and
“escalate”
the
process
by
requesting a hearing before an ALJ, even though a decision by
the QIC is ordinarily a prerequisite to such a hearing.
§ 1395ff(c)(3)(C)(ii).
Id.
With respect to the adjudication by an
ALJ, the Medicare Act provides that an ALJ “shall conduct and
conclude a hearing on a decision of a [QIC] . . . and render a
decision on such hearing by not later than the end of the 90-day
period beginning on the date a request for hearing has been
timely
filed.”
Id.
§ 1395ff(d)(1)(A);
see
also
42
C.F.R.
§ 405.1016(c) (providing a 180-day deadline if the appeal had
been escalated past the QIC level).
a
decision
before
the
deadline,
If the ALJ does not render
the
healthcare
provider
may
bypass the ALJ and again escalate the process by “request[ing] a
review by the Departmental Appeals Board . . . , notwithstanding
any requirements for a hearing for purposes of the party’s right
to such a review.”
the
Departmental
42 U.S.C. § 1395ff(d)(3)(A).
Appeals
Board
does
not
Finally, if
conclude
its
review
within 90 days, id. § 1395ff(d)(2)(A), or within 180 days if the
appeal
had
been
escalated
past
the
ALJ
level,
42
C.F.R.
§
405.1100(d), the healthcare provider “may seek judicial review
[in
a
United
States
district
court],
notwithstanding
any
requirements for a hearing for purposes of the party's right to
such judicial review,” 42 U.S.C. § 1395ff(d)(3)(B); see also 42
C.F.R. § 405.1132.
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In sum, in order to exhaust the administrative process for
reimbursement of Medicare services, a healthcare provider must
present
the
claim
in
the
first
instance
to
a
Medicare
Administrative Contractor and thereafter engage the process of
review and appeal set forth in § 1395ff.
While the statute
imposes deadlines for completion at each step of the process, it
also anticipates that the deadlines may not be met and thus
gives the healthcare provider the option of bypassing each step
and escalating the claim to the next level, ultimately reaching
judicial
review
by
a
United
States
district
court
within
a
relatively prompt time.
The order that Cape Fear Health System seeks would have the
judiciary
process
enforce
not
an
isolated
contemplated
conflict with it.
by
deadline
the
and
Medicare
thereby
Act
--
impose
indeed,
a
in
Instead of having a delayed claim continue by
escalation through the steps of the administrative process and
ultimately to the courts, the Hospital System would have a court
order the Secretary to address its claims without escalation, to
the detriment of all other appeals then pending.
The precedent
established by this judicial intrusion would surely invite every
other delayed claimant into the courts, converting the agency
process
into
medias res.
a
hybrid
process
involving
judicial
action
in
There is no evidence that Congress ever entertained
such an idea.
More importantly, the Hospital System’s argument
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that the Secretary must provide an ALJ hearing within 90 days or
risk
judicial
intervention
and
supervision
is
grounded
in
a
myopic reading of the Medicare Act.
The Medicare Act directs the Secretary in mandatory terms
-- as the Hospital System stresses -- to comply with a 90-day
deadline for ALJ decisionmaking:
Except [when waived], an administrative law judge
shall conduct and conclude a hearing on a decision of
a qualified independent contractor under subsection
(c) of this section and render a decision on such
hearing by not later than the end of the 90-day period
beginning on the date a request for hearing has been
timely filed.
42
U.S.C.
§
1395ff(d)(1)(A)
(emphasis
added).
But
the
next
question is the more important one for addressing the Hospital
System’s argument -- what consequences follow if the deadline is
not met?
Congress answered this explicitly, providing:
In the case of a failure by an administrative law
judge to render a decision by the end of the period
described in paragraph (1), the party requesting the
hearing may request a review by the Departmental
Appeals Board of the Department of Health and Human
Services, notwithstanding any requirements for a
hearing for purposes of the party’s right to such a
review.
Id.
§
1395ff(d)(3)(A).
Consequently,
instead
of
creating
a
right to go to court to enforce the 90-day deadline, Congress
specifically gave the healthcare provider a choice of either
waiting
for
the
ALJ
hearing
beyond
the
90-day
deadline
or
continuing within the administrative process by escalation to
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next
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level
of
review.
Pg: 17 of 22
The
Hospital
System’s
argument
focuses on only the provision creating the 90-day time frame and
fails
to
account
for
administrative process.
restricted.
(noting
its
context
in
the
comprehensive
Our reading of the statute cannot be so
See King v. Burwell, 135 S. Ct. 2480, 2492 (2015)
that
it
is
a
“fundamental
canon
of
statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme” (quoting Util. Air Regulatory Grp. v. EPA, 134 S. Ct.
2427, 2441 (2014) (internal quotation marks omitted))); FDA v.
Brown
&
Williamson
Tobacco
Corp.,
529
U.S.
120,
132
(2000)
(noting that “a reviewing court should not confine itself to
examining a particular statutory provision in isolation”).
Thus, when taken in context, § 1395ff(d) must be understood
to
provide
a
90-day
deadline
for
an
ALJ’s
decision,
thereby
encouraging the process to proceed expeditiously, and to give
the healthcare provider two options if the deadline is not met:
bypassing
the
ALJ
hearing
and
obtaining
review
by
the
Departmental Appeals Board, or waiting beyond the 90-day period
for the ALJ to conduct a hearing and render a decision.
giving
the
anticipated
provided
healthcare
that
its
the
chosen
provider
90-day
remedy.
these
deadline
But
options,
might
Congress
not
In
Congress
be
met
and
clearly
did
not
authorize healthcare providers to go to court at this stage of
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the administrative process.
Pg: 18 of 22
Rather, it required, before going
to court, that the healthcare provider obtain a final decision
of the Secretary -- the decision of the Departmental Appeals
Board.
See 42 U.S.C. §§ 1395ff(b)(1)(A), 1395ff(d)(2)(A); see
also Heckler v. Ringer, 466 U.S. 602, 605-06 (1984).
Only if
the Departmental Appeals Board also fails to meet its deadline
in reviewing the healthcare provider’s claim can the healthcare
provider, again in a similar manner, bypass that level of review
and proceed to court, all within a relatively expeditious time
frame.
See id. §§ 1395ff(d)(2)(A), 1395ff(d)(3)(B).
The Hospital System argues that this interpretation of the
administrative
process
that
whether
to
process
is
provides
it
“waive
its
unreasonable
the
right
as
“terrible
to
due
it
results
choice”
process”
of
or
in
a
deciding
to
“suffer
interminably until the Secretary feels like affording [it] a
hearing.”
Its due process argument is based on its presumption
that, in bypassing the ALJ hearing, it would be denying itself
the opportunity to create a full administrative record at the
ALJ
hearing,
thereby
judicial review.
42
U.S.C.
§
leaving
itself
without
a
record
for
See 42 U.S.C. § 1395ff(b)(1)(A) (incorporating
405(g),
which
requires
that
judicial
review
be
conducted on the administrative record).
The Medicare Act, however, does not support the Hospital
System’s
presumptions.
The
implementing
18
regulations
provide
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Pg: 19 of 22
that a healthcare provider may submit “any” evidence it wishes
at the QIC redetermination stage, an earlier stage at which the
Hospital
System
§ 405.968(a)(1);
has
42
not
claimed
U.S.C.
delay.
§ 1395ff(c).
42
Thus,
C.F.R.
healthcare
providers could, in anticipation of delays at the ALJ stage and
beyond,
create
their
record
at
the
QIC
stage
and
thereafter
escalate their claims to the courts within a period of months.
See 42 U.S.C. § 1395ff(d)(3).
the
Hospital
System
would
Moreover, it is not clear that
have,
as
it
assumes,
a
right
to
introduce new evidence during an ALJ hearing even if it had the
benefit of the hearing.
See id. § 1395ff(b)(3) (providing that
healthcare providers “may not introduce evidence in any appeal
under this section that was not presented at the reconsideration
conducted by the [QIC] . . . unless there is good cause”).
Properly
establishes
Gustafson,
understood,
a
513
therefore,
multilevel,
U.S.
at
“coherent
the
569,
which
Medicare
regulatory
authorizes
a
Act
scheme,”
healthcare
provider to bypass levels of review that are not completed in
accordance with specified time frames and, at the same time, to
create a record that it can ultimately use for judicial review.
While
the
Act
gives
the
Hospital
System
the
clear
and
indisputable right to this administrative process, it does not
give it a clear and indisputable right to adjudication of its
appeals before an ALJ within 90 days.
19
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Pg: 20 of 22
Moreover, were we to interfere at the ALJ stage, as the
Hospital
System
would
have
us
do,
we
would
be
undermining
important separation-of-powers principles, as the district court
recognized
mandamus
in
denying
the
Hospital
In
the
Medicare
Act,
Congress
providers
to
engage
an
Executive
order.
healthcare
administrative
process
in
System’s
making
claims
request
for
a
required
for
Branch
Medicare
reimbursement, thus precluding court suits in the first instance
that would bypass the process.
But, in doing so, it did not
deny healthcare providers judicial review; indeed, it guaranteed
such
review,
but
only
after
the
Secretary
is
given
the
opportunity to grant or deny the claims in accordance with the
specified process.
A writ of mandamus, as requested by the Hospital System,
would have courts interrupt the specified administrative process
and cross the lines of authority created by statute.
the
backlog
were
fully
attributable
to
the
Even if
Secretary’s
mismanagement, as the Hospital System maintains, our “respect
for the autonomy and comparative institutional advantage of the
executive branch” must make us mighty “slow to assume command
over an agency’s choice of priorities.”
930 F.2d 72, 74 (D.C. Cir. 1991).
In re Barr Labs., Inc.,
And if the backlog were
attributable to Congress’ failure to fund the program more fully
20
Appeal: 15-1393
or
Doc: 39
otherwise
Filed: 03/07/2016
to
provide
a
Pg: 21 of 22
legislative
solution,
it
would
likewise be a problem for Congress, not the courts, to address.
Moreover, we have no reason to believe that any judicial
intervention into HHS’s administrative process, as urged by the
Hospital System, would improve anything.
not
have
greater
competence
to
The courts surely do
administer
reimbursement claims process than does HHS.
the
Medicare
And, in addition,
judicial intervention as requested by the Hospital System would
simply put each of its claims “at the head of the queue,” moving
“all others back one space and produc[ing] no net gain.”
Barr Labs., 930 F.2d at 75.
In re
We thus share the district court’s
belief that “the political branches are best-suited to alleviate
OMHA’s crippling delays.”
One can hardly dispute that HHS’s procedural arteries are
seriously clogged and that its backlog of ten years is risking
its procedural vitality.
Put simply, its administrative process
is in grave condition.
While the Secretary laments this and
Congress recognizes it, both are presently attempting to revive
the process.
As bleak as these circumstances appear to be,
however, we are unpersuaded that Article III treatment of the
ailing
urges
Article
is
the
II
patient
answer
or,
in
the
indeed,
manner
even
the
Hospital
possible
or
System
desirable.
Despite the legitimacy of the Hospital System’s frustration, we
21
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Filed: 03/07/2016
Pg: 22 of 22
are convinced that the district court acted correctly in leaving
treatment to the political branches.
For
the
reasons
given,
we
affirm
the
district
court’s
decision to dismiss the Hospital System’s claim for a writ of
mandamus.
III
Cape Fear Health System also sought “a declaratory judgment
in
its
favor
that
HHS’s
delay
appeals violates federal law.”
in
adjudication
of
Medicare
Because we affirm the district
court’s conclusion that the Hospital System failed to state a
claim upon which mandamus relief could be granted, it follows
that we must also affirm the district court’s dismissal of the
Hospital
System’s
declaratory
Inc.
Mirowski
Family
v.
judgment
Ventures,
claim.
LLC,
134
See
S.
Medtronic
Ct.
843,
849
(2014) (recognizing that the Declaratory Judgment Act is only
“procedural” and does not create “substantive rights” (internal
quotation marks and citations omitted)).
*
*
*
The judgment of the district court is
AFFIRMED.
22
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