Case 1:13-cv-00643-RMC Document 40 Filed 08/06/14 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CHARLESTON AREA MEDICAL CENTER, et al., Plaintiffs, v. KATHLEEN SEBELIUS, Secretary, U.S. Department of Health and Human Services, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 13-643 (RMC) ORDER 1 Having considered the following: the parties’ responses to the Court’s Orders to Show Cause, which were issued on May 27, 2014 and June 10, 2014; Defendant’s Motion for Entry of Relief Requested in, and for Dismissal of, Plaintiffs’ Complaint in Charleston Area Medical Center v. Sebelius (Charleston-A) (“Defendant’s Motion for Entry of Relief”) (Dkt. 22); Plaintiffs’ Cross-Motion for Judgment on the Pleadings in Charleston-A (“Plaintiffs’ Rule 12(c) Motion”) (Dkt. 24); and the entire record; it is ORDERED that in Defendant’s responses to the Court’s May 27, 2014 and June 10, 2014 Orders to Show Cause, Defendant made a binding concession that 42 C.F.R. § 405.1835(a)(1)’s requirement, that a Medicare provider must establish its “dissatisfaction” by claiming reimbursement for the item in question in its Medicare cost report or by listing the item as a “protested amount” in its cost report, should not apply to Provider Reimbursement Review Board (Board) appeals (like 1 An Order identical to this one has been posted in the following cases: Charleston Area Medical Center v. Sebelius (Charleston-A), No. 13-643 (D.D.C. filed May 3, 2013); Charleston Area Medical Center v. Sebelius (Charleston-B), No. 13-766 (D.D.C. filed May 24, 2013); and Denver Health Medical Center v. Sebelius (Denver Health), No. 14-553 (D.D.C. filed Apr. 2, 2014). 1 Case 1:13-cv-00643-RMC Document 40 Filed 08/06/14 Page 2 of 3 those in Charleston-A, Denver Health, and Charleston-B) that are based on the provisions of the Medicare statute, 42 U.S.C. § 1395oo(a)(1)(B), that provide for appeal to the Board where a Medicare contractor does not issue a timely notice of program reimbursement (NPR); and it is FURTHER ORDERED that the Board, the rest of the Department of Health and Human Services, and all current and future Medicare contractors are enjoined from applying 42 C.F.R. § 405.1835(a)(1)’s “dissatisfaction” requirement for Board jurisdiction to any pending or future Board appeal that, pursuant to 42 U.S.C. § 1395oo(a)(1)(B), is based on the Medicare contractor’s failure to issue a timely NPR; and it is FURTHER ORDERED that Defendant’s Motions for Entry of Relief in CharlestonA and Plaintiffs’ Rule 12(c) Motions in Charleston-A are all dismissed as moot in light of the instant Order; and it is FURTHER ORDERED that the Court finds, concludes, and orders as follows: (1) that the Plaintiff providers’ administrative appeals met the requirements of the Medicare statute, 42 U.S.C. § 1395oo(a)(1)(B), for Board jurisdiction over appeals where the Medicare contractor did not issue a timely NPR; (2) that because Board jurisdiction obtained yet the Board had no authority to decide the merits of the Plaintiff providers’ underlying facial challenge to the outlier payment regulations or the rural floor budget neutrality adjustment (RFBNA) regulations, this Court has subject matter jurisdiction over the merits of Plaintiffs’ outlier payment claims in Charleston-A and Denver Health, and the merits of Plaintiffs’ RFBNA claims in Charleston-B based on the expedited judicial review (EJR) provisions of the Medicare statute, 42 U.S.C. § 1395oo(f)(1); 2 Case 1:13-cv-00643-RMC Document 40 Filed 08/06/14 Page 3 of 3 (3) that Plaintiffs shall file amended complaints in Charleston-A, Denver Health, and Charleston-B pleading only their outlier payment claims or their RFBNA claims as appropriate, and eliminating their Board jurisdiction allegations, within 30 days of this Order; and (4) that Defendant shall answer or otherwise respond to Plaintiffs’ amended complaints within 30 days after the filing of Plaintiffs’ amended complaints; and it is FURTHER ORDERED that no provision of this Order pertains to the application of 42 C.F.R. § 405.1835(a)(1)’s “dissatisfaction” requirement to Board appeals pursuant to 42 U.S.C. § 1395oo(a)(1)(A) that are based on a timely NPR. /s/ ROSEMARY M. COLLYER United States District Judge Date: August 6, 2014 3