Hospice Center of Southeastern Oklahoma, Inc. v. Sebelius
Filing
32
ORDER by Judge Ronald A. White denying motion of the defendant for remand ( 20 Motion to Remand ), granting motion of the plaintiff for stay ( 22 Motion to Stay), finding as moot plaintiff's earlier motion for "standstill" ( 8 Motion for Miscellaneous Relief) and directing the parties to confer and file a joint status report on or before 7/29/11(law, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
HOSPICE CENTER OF
)
SOUTHEASTERN OKLAHOMA, INC., )
)
Plaintiff,
)
)
v.
)
)
KATHLEEN SEBELIUS, Secretary
)
of the U.S. Department of Health and
)
Human Services,
)
)
Defendant.
)
Case No. CIV-10-401-RAW
ORDER
Before the court are various pending motions. This is one of a group of cases in
which a Medicare-certified provider of hospice services seeks to pursue a legal challenge to
the Secretary’s determination that plaintiff exceeded the Medicare hospice cap.
Defendant has filed a motion to remand. She asks that this matter be remanded so that
recalculation of the hospice cap determination may take place using the methodology set
forth in CMS Ruling No. CMS-1335-R (April 14, 2011)1 .
CMS stands for Centers for
Medicare & Medicaid Services. The Secretary contends that the application of this ruling
will yield the same relief that plaintiff has sought in the instant civil action. Plaintiff objects
to remand.
1
The Secretary states that “CMS Rulings are decisions of the
Administrator of CMS that serve as precedential final opinions
and orders and statements of policy and interpretation.” (Motion
to Remand at 3 n.1).
The motion will be denied, principally because (as plaintiff notes) a remand on this
ground might preclude plaintiff from seeking attorney fees. In an action for judicial review
of agency action, a plaintiff as prevailing party is entitled to an award of fees unless the court
finds that the position of the United States was substantially justified. See 28 U.S.C.
§2412(d)(1)(A). Remanding before a judgment on the merits is rendered is not appropriate 2 .
A copy of the CMS Ruling is attached to plaintiff’s response to the motion to remand.
The court has concerns about other aspects of the proposed remand as well. Defendant
acknowledges that the CMS Ruling only applies to appeals pending before administrative
appeals tribunals. (Motion to Remand at 4)(See also CMS Ruling at 1). Thus, by its terms,
it does not apply to a hospice in plaintiff’s position. Defendant states, however, that “the
Secretary has determined to grant Plaintiff the same relief provided in CMS Ruling 1355-R”.
(Motion to Remand at 4). This ad hoc approach seems inconsistent with normal procedures.
Moreover, it is unclear whether a CMS Administrator Ruling may set up a new standard
without following the rule-making process required by the Administrative Procedure Act.
2
Responding to this point, defendant states that plaintiff
is “assum[ing] . . . that it would be entitled to an EAJA award .
. . “ and that “Plaintiff’s assumptions about attorney’s fees
under the EAJA do not constitute a basis to oppose a remand that
would give plaintiff the relief it has sought in its Complaint
concerning the Medicare hospice cap.”
(Reply at 3 n.2)
Defendant does not explain why a desire to preserve the
opportunity to seek attorney fees is not a basis to oppose
remand. Also, in a case of this type a plaintiff is entitled to
seek both relief and an award of fees.
2
In another aspect of plaintiff’s objection (now overtaken by events) it contends that
the court should not remand pending a Tenth Circuit decision on the validity of the cap
regulation in an appeal from a district court in New Mexico. In that case, the district court
found the regulation invalid and the Secretary appealed. Recently, the government filed a
motion to dismiss its appeal and the motion was granted by the appellate court. See Hospice
of New Mexico, LLC v. Sebelius, 2011 WL 2474293 (10th Cir.2011).
In its opinion, the
Tenth Circuit observed that “HHS has thrown in the towel” as to the regulation and “has
capitulated on the plain meaning of 42 U.S.C. §1395f(i)(2).” These observations are not
reflected in the CMS Ruling. On the contrary, the CMS Ruling states that “CMS continues
to believe that the methodology set forth in [the regulation] is consistent with the Medicare
statute. . . . “ (CMS Ruling at 7). Moreover, it states that the hospice cap determinations
will continue to be made based upon the current regulation, unless the hospice provider files
an administrative appeal.
(Id. at 11).
This court declines to implicitly endorse an
administrative ruling which intends to continue using a regulation which courts have found
invalid, and when a Tenth Circuit ruling as to validity has been avoided by appeal dismissal3 .
In any event, only the New Mexico appeal has been dismissed. The Tenth Circuit has not
yet dismissed other appeals (including appeals from this court) regarding the hospice cap.
3
In footnote 3 of its opinion, the Tenth Circuit states that
HHS has published proposed revisions to the hospice cap
regulation and is in the process of receiving public comment. A
new regulation would obviate this aspect of the CMS Ruling.
3
Also before the court is the motion of the plaintiff to stay. Plaintiff asks that the
defendant be forestalled from seeking repayment or collection of the underlying alleged
overpayment pending a decision by the Tenth Circuit in the New Mexico appeal. As already
stated, that appeal has been dismissed. In light of the fact that the court is declining to grant
defendant’s motion to remand, however, the motion to stay will be granted. This court has
previously ruled in other litigation that the regulation is invalid, and thus defendant should
not be allowed to seek any recovery at this time 4 .
It is the order of the court that the motion of the defendant for remand (#20) is hereby
DENIED. The motion of the plaintiff for stay (#22) is hereby GRANTED. Defendant is
hereby forestalled from seeking collection of any alleged hospice cap Medicare overpayment
from plaintiff until further order of this court. Inasmuch as the motion to stay has been
granted, plaintiff’s earlier motion for “standstill” (#8) is deemed moot.
The parties are directed to confer and to file on or before July 29, 2011 a joint status
report on each party’s view as to a proposed course of action for this litigation (e.g., whether
the setting of a briefing schedule is necessary).
4
The court is not granting a stay in the traditional sense
of suspending this litigation as a whole.
Rather, the motion is
the functional equivalent of a motion for preliminary injunction.
The court has previously granted a motion for “standstill” on
similar reasoning, which is incorporated herein by reference.
See Order #32 in Hospice Center of Southeastern Oklahoma, Inc. v.
Sebelius, CIV-10-269-RAW (January 24, 2011).
4
IT IS SO ORDERED this 12th day of JULY, 2011.
Dated this 12th day of July, 2011.
J4h4i0
5
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