Baker v. Banner Health et al

Filing 66

ORDER denying 60 Motion for Reconsideration by Judge William J. Martinez on 06/29/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-3029-WJM-CBS
MARTHA L. BAKER,
Plaintiff-Relator,
v.
BANNER HEALTH, and
BANNER MEDICAL GROUP COLORADO,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

On June 12, 2015, this Court granted early partial summary judgment to
Plaintiff-Relator Martha L. Baker (“Baker”), holding that Defendants Banner Health and
Banner Medical Group Colorado (collectively, “Banner”) do not satisfy certain Medicare
requirements when they have only advanced practice nurses (as opposed to radiation
oncologists) supervise radiation therapy treatments for cancer patients. (ECF No. 56.)
Before the Court is Defendants’ Motion for Reconsideration or, in the Alternative,
Certification for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and f or Stay of
Proceedings (ECF No. 60). For the reasons stated below, this motion is denied.
I. ANALYSIS
A.

Reconsideration Standard
District Courts have broad discretion to reconsider their interlocutory rulings

before the entry of judgment. See Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th
Cir. 2011) (“[D]istrict courts generally remain free to reconsider their earlier interlocutory

orders.”). Thus, a court can alter its interlocutory orders even where the more stringent
requirements applicable to a motion to alter or amend a final judgment under Rule 59(e)
or a motion for relief from judgment brought pursuant to Rule 60(b) are not satisfied.
See Laird v. Stilwill, 982 F. Supp. 1345, 1353–54 (N.D. Iowa 1997).
“Notwithstanding the district court’s broad discretion to alter its interlocutory
orders, the motion to reconsider ‘is not at the disposal of parties who want to rehash old
arguments.’” Nat’l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F. Supp. 2d
1250, 1256 (D. Colo. 2000) (quoting Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill.
1995)). “Rather, as a practical matter, to succeed in a motion to reconsider, a party
must set forth facts or law of a strongly convincing nature to induce the court to reverse
its prior decision.” Id. Even under this lower standard, “[a] motion to reconsider should
be denied unless it clearly demonstrates manifest error of law or fact or presents newly
discovered evidence.” Id.
B.

“Personally Furnish” vs. Prescribe
Banner argues that this Court’s prior order “conflates the concept of ‘personally

furnishing’ a daily dose of external beam radiation therapy with the concept of
‘prescribing’ a multi-week course of radiation therapy pursuant to a written directive.”
(ECF No. 60 at 3.) Banner seems to contend that “personally furnish” is distinct from
“prescribe” in the same way that dispensing a prescription is distinct from writing a
prescription. (Id. at 5–7.) The Court believes, however, that 42 C.F.R. § 410.27
requires treating “personally furnish” as synonymous with “prescribe,” at least under
Colorado law as it currently stands.

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Even if viewed as the delivery of a single daily dose, the “service” for which
Medicare will pay must be under the “direct supervision” of a “physician or nonphysician
practitioner [who is] immediately available to furnish assistance and direction
throughout the performance of the procedure.” 42 C.F.R. § 410.27(a)(1)(iv)(A). The
Center for Medicare and Medicaid Services (“CMS”) has specifically stated that the
“direct supervision” requirement can only be met by a “supervisory practitioner or
nonphysician practitioner who . . . [has] the training and knowledge to clinically redirect
the service [i.e., the daily dose, under Banner’s theory] or provide additional orders.” 75
Fed. Reg. 71800, 72012 (Nov. 24, 2010) (emphasis added). It cannot be met by
someone who only has access (e.g., by phone) “to a specialist who is able to change
the plan of care should the need arise.” Id. Thus, “direct supervision” must be
performed by someone capable of changing the radiation dose.
Returning again to the words of the regulation, “[n]onphysician practitioners may
provide the required supervision [i.e., ‘direct supervision’] of services [i.e., the daily
dose] that they may personally furnish in accordance with State law.” 42 C.F.R.
§ 410.27(a)(1)(iv)(C). As explained in the previous order, nurses in Colorado cannot
“personally furnish” (prescribe or change the dose of) radiation therapy, whether a
course of therapy or a single dose. (ECF No. 56 at 5–6.)
Without citation, Banner argues that its advanced practice nurses “are qualified
by licensure and scope of practice to clinically redirect therapy sessions” in the sense of
“deciding not to treat” the patient. (ECF No. 60 at 8.) But ev en if true, and if (as Banner
also contends) the “service” at issue is the daily dose of radiation, then choosing not to
deliver a daily dose would be, by definition, choosing not to provide the “service.” In
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that circumstance, Banner would not be seeking payment for the “service” and would
not trigger 42 C.F.R. § 410.27 and its supervision requirements.
The Court is not without sympathy for Banner. It appears that most, perhaps all,
daily doses of radiation cannot be changed in mid-course, but can only be completely
delivered or cut off prematurely. (Id. at 8–9.) Thus, as the Court stated previously,
“Banner’s explanation of the practical realities of radiation therapy raises an interesting
question about why CMS requires supervision by a highly trained specialist.” (Id. at 10.)
Nonetheless, CMS directly addressed this concern and rejected it in the Federal
Register commentary quoted above, which Banner has never challenged as, e.g.,
unworthy of deference. (See also id. at 9–10.)
For all these reasons, and for those stated in the Court’s previous order (ECF
No. 56), the Court declines to reconsider its holding that, as applied in Colorado,
42 C.F.R. § 410.27(a)(1)(iv)(C) does not permit “direct supervision” by a nurse.
C.

Interlocutory Appeal
Banner alternatively requests that this Court certify an interlocutory appeal and

stay this case. (ECF No. 60 at 9–13.) This Court may certify an interlocutory appeal
under certain circumstances:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of law
as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of such
action may thereupon, in its discretion, permit an appeal to
be taken from such order . . . .
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28 U.S.C. § 1292(b). It is entirely within this Court’s discretion to certify an order for
appeal under § 1292(b). See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 47
(1995).
Under the circumstances, the Court finds that an interlocutory appeal would not
materially advance the ultimate termination of the litigation. The parties have already
begun substantial fact discovery (see ECF No. 57 ¶¶ 5–6) and fact discovery will close
on August 14, 2015 (ECF No. 59). A final pretrial conference is scheduled for
November 3, 2015. (ECF No. 46 at 12.) Moreover, Baker asserts violations of the
False Claims Act other than billing for improperly supervised radiation therapy. (ECF
No. 38 ¶¶ 38–64.) Thus, an interlocutory appeal likely would not “avoid protracted and
expensive litigation.” Burchett v. Bardahl Oil Co., 470 F.2d 793, 796 (10th Cir. 1972).
Rather, this action would go forward in some manner either way. The Court therefore
concludes that the requirements of 28 U.S.C. § 1292(b) have not been satisfied.
II. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Reconsideration or, in
the Alternative, Certification for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)
and for Stay of Proceedings (ECF No. 60) is DENIED.
Dated this 29th day of June, 2015.
BY THE COURT:

William J. Martínez
United States District Judge
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