                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

AFFINITY HEALTHCARE SERVICES,                  :
INC. d/b/a AFFINITY HOME HOSPICE               :
SERVICES et al.,                               :
                                               :
               Plaintiffs,                     :     Civil Action No.:      10-0946 (RMU)
                                               :
               v.                              :    Re Document Nos.:      16, 19, 26, 28
                                               :
KATHLEEN SEBELIUS,                             :
in her official capacity as Secretary of the   :
U.S. Department of Health and                  :
Human Services,                                :
                                               :
               Defendant.                      :

                                  MEMORANDUM OPINION

      GRANTING THE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; DENYING THE
     DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT; DENYING AS MOOT THE
     DEFENDANT’S MOTION TO DISMISS THE ORIGINAL COMPLAINT; DENYING AS MOOT
       THE PLAINTIFFS’ RENEWED MOTION FOR A TEMPORARY RESTRAINING ORDER


                                     I. INTRODUCTION

       The plaintiffs are a group of hospice care providers participating in Medicare, a federal

program administered by the Department of Health and Human Services (“HHS”). They

commenced this action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553

et seq., challenging HHS’s demands for repayment of funds distributed to them purportedly in

excess of the lawful cap on such distributions.

       The matter is now before the court on the parties’ cross-motions for summary judgment.

The plaintiffs contend that the cap regulation applied by HHS is unlawful because its formula for

calculating a hospice’s reimbursement cap conflicts with the terms of the governing statute. The
defendant, the Secretary of HHS, defends the lawfulness of the reimbursement cap regulation

and contends that the court lacks jurisdiction over most of the plaintiffs’ claims because they

failed to satisfy the amount in controversy requirement, as necessary to establish the agency’s

jurisdiction over the challenge. For the reasons discussed below, the court grants the plaintiffs’

motion for summary judgment and denies the defendant’s cross-motion for summary judgment.



                                      II. BACKGROUND

              A. Framework for Review of Medicare Reimbursement Disputes

       Medicare provides health insurance to the elderly and disabled by entitling eligible

beneficiaries to have payments made on their behalf for the care and services rendered by health

care providers. See 42 U.S.C. §§ 1395 et seq. Providers are reimbursed for the care they provide

to Medicare beneficiaries by insurance companies, known as “fiscal intermediaries,” that have

contracted with the Centers for Medicare and Medicaid Services (“CMS”) to aid in administering

the Medicare program. See id. § 1395h. Fiscal intermediaries determine the amount of

reimbursement due to providers under the Medicare statute and applicable regulations. See id. §

1395kk-1.

       If the provider is dissatisfied with a fiscal intermediary’s determination, and the “amount

in controversy is $10,000 or more,”1 the provider may appeal that determination to the Provider

Reimbursement Review Board (“PRRB”) within 180 days of its issuance. Id. § 1395oo(a). A

decision of the PRRB constitutes a final agency ruling, unless reviewed by the CMS

Administrator, to whom the HHS Secretary has delegated the authority to review PRRB rulings.

Id. § 1395oo(f)(1); see also 42 C.F.R. § 405.1875. If the Administrator exercises its authority to

1
       In the case of group appeals, the aggregate amount in controversy must be $50,000 or more. 42
       U.S.C. § 1395oo(b).


                                                  2
reverse, affirm or modify a PRRB ruling, the provider may seek judicial review of the

Administrator’s determination in a civil action. 42 U.S.C. § 1395oo(f)(1).

       If the intermediary’s action involves a question of law that the PRRB lacks the authority

to address, the Medicare statute provides that the PRRB may grant expedited judicial review

(“EJR”) of that question. See id. Specifically, the statute states that “[p]roviders shall . . . have

the right to obtain judicial review of any action of the fiscal intermediary which involves a

question of law or regulations relevant to the matters in controversy whenever the Board

determines . . . that it is without authority to decide the question, by a civil action commenced

within sixty days of the date on which notification of such determination is received.” Id. The

statute further provides that such a determination by the PRRB “shall be considered a final

decision and not subject to review by the [Administrator].” Id.

                            B. The Hospice Care Reimbursement Cap

       Among other services, Medicare covers hospice care for individuals who are “terminally

ill,”2 reimbursing hospices for services such as nursing care, physical or occupational therapy,

home health aide services, medical supplies and counseling. 42 U.S.C. § 1395x(dd)(1). An

individual remains entitled to hospice care benefits so long as he or she is certified as

“terminally ill.” See id. § 1395d(d)(1) (establishing that reimbursement for hospice care may be

provided “during two periods of 90 days each and an unlimited number of subsequent periods of

60 days each during the individual’s lifetime”).

       The Medicare statute, however, places a cap on the total amount that Medicare may

distribute to a hospice provider in a single fiscal year (November 1 through October 31). See id.




2
       An individual is “terminally ill” if he or she has “a medical prognosis that the individual’s life
       expectancy is 6 months or less.” 42 U.S.C. § 1395x(dd)(3).


                                                     3
§ 1395f(i)(2)(A). Payments made to a hospice care provider in excess of the statutory cap are

considered overpayments that must be refunded by the hospice care provider. Id.

       More specifically, the statute provides that the total yearly payment to a hospice provider

may not exceed the product of the annual “cap amount”3 and the “the number of [M]edicare

beneficiaries in the hospice program in that year.” Id. For purposes of this calculation,

       the “number of [M]edicare beneficiaries” in a hospice program in an accounting
       year is equal to the number of individuals who have made an election under
       subsection (d) of this section with respect to the hospice program and have been
       provided hospice care by (or under arrangements made by) the hospice program
       under this part in the accounting year, such number reduced to reflect the
       proportion of hospice care that each such individual was provided in a previous
       or subsequent accounting year or under a plan of care established by another
       hospice program.

Id. § 1395f(i)(2)(C) (emphasis added). Thus, the Medicare statute directs HHS to account for the

fact that an individual may receive care in more than one fiscal year by requiring HHS to count

that individual as a beneficiary in each year in which he or she receives hospice care benefits,

with that number proportionally reduced to reflect care provided in previous or subsequent years.

Id.

       To implement these statutory cap provisions, HHS promulgated a reimbursement

regulation governing the calculation of the statutory cap amount. See 42 C.F.R. § 418.309. In

pertinent part, the regulation provides that the “number of beneficiaries” portion of the statutory

cap calculation includes

       [t]hose Medicare beneficiaries who have not previously been included in the
       calculation of any hospice cap and who have filed an election to receive hospice
       care . . . from the hospice during the period beginning on September 28 (35 days


3
       The statute defines the “cap amount” for a year as “$6,500, increased or decreased . . . by the
       same percentage as the percentage increase or decrease, respectively, in the medical care
       expenditure category of the Consumer Price Index.” Id. § 1395f(i)(2)(B). According to the
       plaintiffs, the “cap amount” was $20,585.39 for fiscal year 2006 and $21,410.04 for fiscal year
       2007. Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”) at 11.


                                                   4
       before the beginning of the cap period) and ending on September 27 (35 days
       before the end of the cap period).

Id. § 418.309(b) (emphasis added). The regulation does not provide for the proportional

allocation of beneficiaries across years of service. See id.

        C. The Plaintiffs’ Challenge to the HHS Cap Repayment Regulation

       The plaintiffs are a group of Medicare-certified hospice care providers to whom HHS

issued cap repayment demands for fiscal years 2006 and 2007. See generally Am. Compl.4

They challenge these repayment demands on the grounds that 42 C.F.R. § 418.309, the

regulation pursuant to which the demands were calculated, conflicts with 42 U.S.C. §

1395f(i)(2), the statutory provision the regulation purports to implement. See generally id. The

plaintiffs assert that whereas the Medicare statute requires HHS to allocate the cap amount across

years of service by proportionally adjusting the “number of beneficiaries” in any given year to

reflect hospice services provided to an individual in previous and subsequent years, the

reimbursement regulation provides that an individual is counted as a beneficiary only in a single

year, depending on when he or she first elects hospice benefits. See id. ¶¶ 49-59. The plaintiffs

allege that as a result, “unused cap amounts in one fiscal year are ‘trapped’ in the prior year,

regardless of whether the beneficiary continues to receive care in subsequent years. The failure

to allocate the cap across years of care results in [] understated aggregate hospice cap allowances

and, in turn, overstated repayment demands.” Id. ¶ 57.



4
       This case represents the consolidation of two separate cases: Destiny Hospice v. Sebelius, Civ.
       Action No. 09-2237, and Affinity Hospice et al. v. Sebelius, Civ. Action No. 10-946. See Minute
       Order (July 16, 2010). The court consolidated the two cases because the claims raised by the
       plaintiffs in both actions are substantively identical. See generally Compl., Destiny Hospice v.
       Sebelius, Civ. Action No. 09-2237; Compl., Affinity Hospice v. Sebelius, Civ. Action No. 10-946.
       Following consolidation, the plaintiffs jointly filed an amended complaint. See generally Am.
       Compl. For ease of reference, the court will refer to the fifteen plaintiff hospices who originally
       filed suit in Civil Action 10-946 as “the Affinity plaintiffs.”


                                                   5
       On September 29, 2009, the PRRB granted plaintiff Destiny Hospice’s request for EJR of

its challenge to the validity of 42 C.F.R. § 418.309(b). On May 25, 2010, the PRRB granted the

Affinity plaintiffs’ request for EJR of their group challenge to the same regulation. Id. ¶ 11.

Destiny Hospice filed a complaint in this court on November 24, 2009, and the Affinity plaintiffs

commenced their civil action on June 8, 2010.5 See generally Compl. The court consolidated

the two cases on July 16, 2010. See Minute Order (July 16, 2010).

            D. The Administrator’s Reversal of the PRRB’s May 25, 2010 Ruling

       On July 19, 2010, the CMS Administrator reversed the PRRB’s May 25, 2010 decision

granting the Affinity plaintiffs’ request for EJR, concluding that Affinity plaintiffs had not

established that the aggregate amount in controversy exceeded $50,000,6 as required to invoke

their right to review before the PRRB under 42 U.S.C. § 1395oo(b). Pls.’ Mot. at 9; Def.’s

Cross-Mot. for Summ. J. & Opp’n to Pls.’ Mot. for Summ. J. (“Def.’s Cross-Mot.”) at 11; Suppl.

Admin. R., Affinity Hospice v. Sebelius, Civ. Action No. 10-946 (“Suppl. Affinity A.R.”) at 1B-

1Q. The Administrator noted that the Affinity plaintiffs had not submitted to the PRRB a

proposed calculation demonstrating that under a proportional allocation, their cap repayment

obligation would, in the aggregate, be reduced by more than $50,000. Suppl. Affinity A.R. at

1B. Rather, the Affinity plaintiffs had argued before the PRRB that the entirety of the 2006 and

2007 cap repayment demands constituted the “amount in controversy” for purposes of their



5
       On June 21, 2010, the plaintiffs filed a motion for a temporary restraining order enjoining HHS
       from collecting hospice cap repayments for fiscal years 2006 and 2007. See generally Affinity
       Pls.’ Mot. for Temporary Restraining Order. The court denied the Affinity plaintiffs’ motion on
       July 1, 2010 on the grounds that the plaintiffs had not established a likelihood of irreparable harm
       absent interim injunctive relief. See generally Mem. Op. (July 1, 2010).

6
       Because the Affinity plaintiffs were pursuing a group appeal before the PRRB, they were
       required to establish that the amount in controversy was $50,000 or more. See 42 U.S.C. §
       1395oo(b).


                                                    6
challenge. Id. at 1C. The PRRB concurred, observing that if the regulation were invalidated, the

full amount of the each cap demand would be set aside or reduced. Id.

       In reviewing the PRRB’s May 25, 2010 decision, the Administrator stated that the

PRRB’s “jurisdiction is a primary threshold determination required for a provider to be granted

its request for expedited judicial review.” Id. at 1M-1N (citing 42 C.F.R. § 405.1842(b)).

Furthermore, the Administrator noted that Medicare regulations permit the Administrator to

review “a Board EJR decision, but only the question of whether there is Board jurisdiction over a

specific matter at issue in the decision.” Id. (citing 42 C.F.R. § 405.1875(a)(2)(iii)). Thus, the

Administrator concluded that it had the authority to review the PRRB’s threshold determination

that the amount in controversy in the Affinity plaintiffs’ group appeal exceeded $50,000. See id.

       The Administrator observed that Medicare regulations provide that in order “to satisfy the

amount in controversy requirement . . . for a Board hearing as a group appeal, the group must

demonstrate that if its appeal were successful, the total program reimbursement for the cost

reporting periods under appeal would increase, in the aggregate, by at least $50,000.” Id. at 1L

(citing 42 C.F.R. § 405.1839(b)). According to the Administrator, the Affinity plaintiffs had

made no such showing. Id. at 1N-1P. The Administrator noted that the Affinity plaintiffs were

not challenging the statutory reimbursement cap itself, merely the regulation adopted by HHS to

implement that cap. Id. at 1N. Thus, even if the Affinity plaintiffs were to succeed, they would

still be subject to a statutory reimbursement cap and, potentially, to some cap repayment

obligation. Id. Thus, the Administrator concluded, by failing to offer any evidence that their

aggregate cap repayment obligation would decrease by more than $50,000 if they were

successful in their challenge, the Affinity plaintiffs had failed to establish the PRRB’s

jurisdiction over their claim. Id. at 1O-1P. Specifically, the Administrator noted that




                                                 7
       [p]ursuant to court order, providers in other cases have been able to compare the
       calculation of the cap amount pursuant to the regulatory method to the calculation
       of the cap amount pursuant to the alleged “statutory method.” In this case, the
       Group has affirmatively decided not to demonstrate, through this comparison
       calculation, that the $50,000 amount in controversy is met, but instead incorrectly
       argued that, if it were successful, the setting aside of the overpayment demand
       demonstrated that at least $50,000 was in controversy. The Group is in essence
       seeking relief from any cap, even if temporary. While such relief to have the cap
       demand temporarily set aside may be the primary goal of the Group, even if its[]
       alleged “statutory” method results in the same or more of a cap demand, such
       relief does not constitute meeting the amount in controversy requirement under
       the regulation.

Id.

       Accordingly, the Administrator reversed and vacated the PRRB’s determination that it

had jurisdiction over the Affinity plaintiffs’ challenge to the cap repayment regulation. Id. at 1P-

1Q. The Administrator did not, however, remand the case to the PRRB for additional

proceedings. See id. at 1P.

       On August 9, 2010, the defendant filed a motion to dismiss the Affinity plaintiffs’ claims

based on the Administrator’s reversal of the PRRB’s May 25, 2010 ruling. See generally Def.’s

Mot. to Dismiss. The defendant argued that in light of the Administrator’s decision, the PRRB’s

grant of EJR to the Affinity plaintiffs did not constitute a final agency action subject to judicial

review under the APA. See generally id. Thus, the defendant argued, the court lacked

jurisdiction over the Affinity plaintiffs’ claims. See generally id.

       On August 10, 2010, the plaintiffs filed an amended complaint, in which they assert a

supplemental claim challenging the Administrator’s reversal of the PRRB’s grant of EJR to the




                                                  8
Affinity plaintiffs.7 See generally Am. Compl. More specifically, the plaintiffs seek a

declaration and order that “HHS’[s] attempt to ‘reverse and vacate’ the prior grant of expedited

judicial review to the Plaintiffs in the group appeal . . . is unlawful and without effect and/or set

aside as improper/erroneous.” Id. ¶ 9; see also id. ¶¶ 36-39.

       The plaintiffs filed their motion for summary judgment on August 20, 2010, see

generally Pls.’ Mot.; and the defendant filed its cross-motion for summary judgment and

opposition to the plaintiffs’ motion for summary judgment on September 3, 2010, see generally

Defs.’ Cross-Mot. & Opp’n to Pls.’ Mot. (“Defs.’ Cross-Mot.”). The parties completed briefing

on the cross-motions for summary judgment on September 17, 2010. See generally Pls.’ Opp’n

to Defs.’ Mot. & Reply to Defs.’ Opp’n to Pls.’ Mot. (“Pls.’ Opp’n”); Def.’s Reply to Pls.’

Opp’n (“Def.’s Reply”). With the parties’ cross-motions for summary judgment ripe for

disposition, the court turns to the applicable legal standards and the parties’ arguments.8



                                          III. ANALYSIS

                          A. Legal Standard for Summary Judgment

       Summary judgment is appropriate when “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact

7
       The filing of an amended complaint renders the original complaint a nullity. Wultz v. Islamic
       Republic of Iran, 2009 WL 4981537, at *1 (D.D.C. Dec. 14, 2009) (citing 6 FED. PRAC. & PROC.
       § 1476). “A motion to dismiss a complaint that has been subsequently amended is therefore
       moot.” Id. (citing Myvett v. Williams, 638 F. Supp. 2d 59, 62 n.1 (D.D.C. 2009)); accord Mass.
       Mfg. Extension P’ship v. Locke, 2010 WL 2679835, at *1 (D.D.C. July 7, 2010); Gray v. D.C.
       Public Schs., 688 F. Supp. 2d 1, 6 (D.D.C. 2010). Thus, because the plaintiffs filed an amended
       complaint the day after the defendant moved to dismiss the original complaint, the court denies
       the defendant’s motion to dismiss as moot.
8
       On August 30, 2010, the plaintiffs filed a renewed motion for a temporary restraining order. See
       generally Pls.’ Renewed Mot. for Temporary Restraining Order. Because the resolution of the
       parties’ cross-motions for summary judgment disposes of all claims in this action, the court
       denies as moot the plaintiffs’ renewed motion.


                                                  9
and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540

(D.C. Cir. 1995). To determine which facts are “material,” a court must look to the substantive

law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

“genuine issue” is one whose resolution could establish an element of a claim or defense and,

therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

       In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion

for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to

the absence of evidence proffered by the nonmoving party, a moving party may succeed on

summary judgment. Id.

       The nonmoving party may defeat summary judgment through factual representations

made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.

1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338

(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose

of the summary judgment device, which is to weed out those cases insufficiently meritorious to

warrant the expense of a jury trial.” Greene, 164 F.3d at 675.




                                                 10
                   B. The Court Vacates the Administrator’s Reversal of the
                            PRRB’s Jurisdictional Determination

         The plaintiffs assert that the court should vacate the Administrator’s reversal of the

PRRB’s determination that it had jurisdiction over the Affinity plaintiffs’ challenge. See Pls.’

Mot. at 11-20; Pls.’ Opp’n at 6-17. The plaintiffs contend that the Administrator lacks the

authority to reverse and vacate the PRRB’s grant of EJR on jurisdictional grounds because the

Medicare statute precludes further administrative review of EJR determinations. Pls.’ Mot. at

11-20; Pls.’ Opp’n at 7-11. Furthermore, the plaintiffs assert that even if the Administrator

possessed the authority to review EJR determinations, the Administrator’s decision to reverse

and set aside the EJR granted to the Affinity plaintiffs was arbitrary and capricious and should

therefore be set aside. Pls.’ Opp’n at 11-17.

         The defendant maintains that the Administrator has the authority to review the PRRB’s

jurisdictional determinations even after the PRRB has granted EJR. Def.’s Cross-Mot. at 14-20;

Def.’s Reply at 2-10. Furthermore, the defendant asserts that the Administrator’s decision to

reverse and vacate the jurisdictional component of the PRRB’s May 25, 2010 EJR decision was

reasonable and supported by substantial evidence. Def.’s Cross-Mot. at 20-25; Def.’s Reply at

10-14.

         The court first considers the plaintiffs’ contention that the Administrator lacks the

authority to vacate EJR grants on jurisdictional grounds. The parties’ dispute on this issue

centers on the following statutory provision, which governs grants of EJR:

         Providers shall . . . have the right to obtain judicial review of any action of the
         fiscal intermediary which involves a question of law or regulations relevant to the
         matters in controversy whenever the Board determines (on its own motion or at
         the request of a provider of services as described in the following sentence) that it
         is without authority to decide the question, by a civil action commenced within
         sixty days of the date on which notification of such determination is received. If a
         provider of services may obtain a hearing under subsection (a) of this section and


                                                  11
       has filed a request for such a hearing, such provider may file a request for a
       determination by the Board of its authority to decide the question of law or
       regulations relevant to the matters in controversy (accompanied by such
       documents and materials as the Board shall require for purposes of rendering such
       determination). The Board shall render such determination in writing within
       thirty days after the Board receives the request and such accompanying
       documents and materials, and the determination shall be considered a final
       decision and not subject to review by the [Administrator]. If the Board fails to
       render such determination within such period, the provider may bring a civil
       action (within sixty days of the end of such period) with respect to the matter in
       controversy contained in such request for a hearing.

42 U.S.C. § 1395oo(f)(1).

       HHS has acknowledged that this provision bars the Administrator from reviewing a

determination by the PRRB that a challenge involves a question of law it lacks the authority to

resolve (“a no authority determination”). See 42 C.F.R. § 405.1875(a)(2)(iii) (providing that “the

Administrator may not review the Board’s determination in a decision of its authority to decide a

legal question relevant to the matter at issue”). Yet, under the HHS’s interpretation of the

statutory provision, before the PRRB may make a no authority determination, the PRRB must

first determine that it has jurisdiction over the provider’s challenge. See id. § 405.1842(b)(1)

(“The Board . . . must find that the Board has jurisdiction over the specific matter at issue before

the Board may determine its authority to decide the legal question.”); id. § 405.1842(e)(1) (“If

the Board makes a finding that it has jurisdiction to conduct a hearing on a specific matter at

issue . . . then (and only then) it must consider whether it lacks the authority to decide a legal

question relevant to the matter at issue.”). This antecedent determination, according to HHS, is

not insulated from administrative review by the Administrator. See id. § 405.1875(a)(2)(iii)

(stating that the Administrator may review “[a] Board EJR decision, but only the question of

whether there is Board jurisdiction over a specific matter at issue in the decision”); id. §

405.1842(g)(1) (providing that the Administrator “may review, on his or her own motion, or at




                                                  12
the request of a party, the jurisdictional component only of the Board’s EJR decision”). The

defendant therefore argues that the Administrator acted within its authority when it vacated the

PRRB’s May 10, 2010 EJR determination after concluding that the Affinity plaintiffs had not

satisfied the amount in controversy requirement. Def.’s Cross-Mot. at 14-20; Def.’s Reply at 2-

10.

       To determine whether HHS’s interpretation of the statutory provision is valid under the

APA, the court employs the familiar two-step inquiry established in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The first step of the Chevron

inquiry requires the court to consider “whether Congress has spoken to the precise question at

issue.” Id. at 842. If so, the court ends its inquiry. Id. at 842-43 (observing that “the court, as

well as the agency, must give effect to the unambiguously expressed intent of Congress”);

Medtronic, Inc. v. Lohr, 518 U.S. 470, 512 (1996) (observing that “where the language of the

statute is clear, resort to the agency’s interpretation is improper”). If, on the other hand, the

statute “is silent or ambiguous with respect to the specific issue,” the second step requires the

court to defer to the agency’s position, so long as it is reasonable. Chevron, 467 U.S. at 843;

NetCoalition v. Secs. Exch. Comm’n, 615 F.3d 525, 533 (D.C. Cir. 2010) (noting that under step

two of the Chevron inquiry, it is irrelevant that the court may have reached a different – or better

– conclusion than the agency); see also Sea-Land Servs., Inc. v. Dep’t of Transp., 137 F.3d 640,

645 (D.C. Cir. 1998) (holding that “[Chevron] deference comes into play of course, only as a

consequence of statutory ambiguity, and then only if the reviewing court finds an implicit

delegation of authority to the agency”). The agency’s interpretation “governs if it is a reasonable

interpretation of the statute – not necessarily the only possible interpretation, nor even the




                                                  13
interpretation deemed most reasonable by the courts.” Entergy Corp. v. Riverkeeper, Inc., 129 S.

Ct. 1498, 1505 (2009).

       Accordingly, the court first considers whether Congress clearly expressed its intent as to

whether the Administrator may vacate an EJR determination on jurisdictional grounds. See

Chevron, 467 U.S. at 842; cf. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004)

(noting that “deference to [the agency’s] statutory interpretation is called for only when the

devices of judicial construction have been tried and found to yield no clear sense of

congressional intent”). Although the EJR provision does not specifically state whether the

Administrator may review the PRRB’s assessment of jurisdiction, the provision is not silent or

ambiguous with respect to the issue. See 42 U.S.C. § 1395oo(f)(1). To the contrary, the EJR

provision begins by stating that providers

       shall . . . have the right to obtain judicial review of any action of the fiscal
       intermediary which involves a question of law or regulations relevant to the
       matters in controversy whenever the Board determines . . . that it is without
       authority to decide the question, by a civil action commenced within sixty days of
       the date on which notification of such determination is received.

Id. (emphasis added).

       Although neither party devotes significant attention to this opening sentence of the EJR

provision, this straightforward statement constitutes an unambiguous expression of legislative

intent. See id. More specifically, by stating unequivocally that judicial review shall be available

“whenever” the PRRB determines that it lacks the authority to decide a question of law, the

provision indicates that Congress intended for providers to have access to judicial review any

time that the PRRB makes a no authority determination, so long as the provider timely

commences a civil proceeding. See id.; see also Hartford Underwriters Ins. Co. v. Union

Planters Bank, 530 U.S. 1, 6 (2000) (stating that “when the statute’s language is plain, the sole




                                                14
function of the courts – at least where the disposition required by the text is not absurd – is to

enforce it according to its terms” (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235,

241 (1989))) (internal quotation marks omitted); OXFORD ENGLISH DICTIONARY (2d ed. 1989)

(defining “whenever” as “[a]t any time when; every time that, as often as”).9

       The remainder of the EJR provision is consistent with and, indeed, amplifies the clearly

expressed legislative intent for unimpeded judicial review following a no authority determination

by the PRRB. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666

(2007) (stating that “[i]n making the threshold determination under Chevron, ‘a reviewing court

should not confine itself to examining a particular statutory provision in isolation’” as the

meaning or ambiguity of a provision “may only become evident when placed in context”). The

provision states that once the PRRB determines that it lacks the authority to resolve a question of

law implicated by the provider’s challenge, such a determination “shall be considered a final

decision and not subject to review by the [Administrator].” Id. Furthermore, the provision states

that in those situations in which a provider requests EJR, the PRRB must rule on such a request

within thirty days, and if the PRRB fails to act within the designated timeframe, the provider

may immediately commence a civil proceeding. Id. Taken as a whole, the EJR provision

establishes a framework under which providers have recourse to immediate judicial review

whenever the PRRB makes a no authority determination, without the obstacle of additional

review at the administrative level, so long as they commence a civil action within sixty days of

the PRRB’s determination. See id.

       This Congressional intent is also reflected in the legislative history of the provision. The

House Report that accompanied the enactment of the EJR provision states as follows:
9
       Available at http://dictionary.oed.com/cgi/entry/50284289?query_type=word&queryword=
       whenever&first=1&max_to_show=10&sort_type=alpha&result_place=2&search_id=WYIH-
       BijEx8-6359&hilite=50284289.


                                                 15
       Title VIII authorizes the Provider Reimbursement Review Board to determine, on
       its own motion or at the request of a provider of services, whether it has
       jurisdiction over an issue brought before it by the provider. On the basis of a
       determination by the Board that it is without authority to decide the question (or if
       the Board fails to render such a determination within 30 days of the provider’s
       request), the provider will be permitted to commence a civil action with respect to
       the matters in controversy without further administrative review.

       Under present law, a provider’s dissatisfaction with a particular determination
       made by its fiscal intermediary on the basis of a regulation issued by the Secretary
       must first be brought to the Board, even though the Board may not have the
       authority to reverse or overrule the regulation. (The Board has no authority, for
       example, to rule on the legality of the Secretary’s regulations but it must,
       nonetheless, conduct a full review of the challenge.) The effect of this process
       has been to delay the resolution of controversies for extended periods of time and
       to require providers to pursue a time-consuming and irrelevant administrative
       review merely to have the right to bring suit in a U.S. district court. Title VIII
       addresses this problem by giving Medicare providers the right to obtain
       immediate judicial review in instances where the Board determines that i[t] lacks
       jurisdiction to grant the relief sought.

H.R. Rep. No. 96-1167, at 394 (1980) (emphasis added).

       Likewise, the relevant House Conference Report states that the EJR provision “requires

the Board, when requested by a provider, to determine within 30 days whether it has jurisdiction

over an issue brought before it by a provider . . . and authorizes judicial review without further

administrative review where the Board decides it lacks jurisdiction.” H.R. Rep. 96-1479, at 136

(1980) (Conf. Rep.) (emphasis added). These legislative reports reflect that Congress intended

for providers to have an avenue for obtaining immediate judicial review, without additional

administrative proceedings, whenever the PRRB makes a no authority determination.

       The defendant maintains that the Administrator possesses the authority to review the

jurisdictional component of an EJR determination, citing the portion of the EJR provision stating

that a provider may request an EJR only if it “may obtain a hearing” before the PRRB. Def.’s

Cross-Mot. at 15; Def.’s Reply at 3-4. The defendant suggests that this language requires the

PRRB to make a determination as to whether the provider has met the prerequisites for PRRB


                                                 16
jurisdiction, such as the amount in controversy requirement. Def.’s Cross-Mot. at 13-15. This

jurisdictional determination, the defendant argues, is like any other determination made by the

PRRB and reviewable by the Administrator. Id. The defendant asserts that nothing in the EJR

provision expressly prohibits the Administrator from reviewing this jurisdictional determination,

as the provision merely precludes further administrative review of the PRRB’s determination that

it lacks the authority to resolve a question of law, not the separate determination that it has

jurisdiction. Id. at 16.

        The court concurs with the defendant that the EJR provision conditions a provider’s right

to request EJR on its satisfaction of the requirements for a hearing before the PRRB. See 42

U.S.C. § 1395oo(f)(1). Thus, if the PRRB were to determine that a provider requesting an EJR

had not satisfied the amount in controversy requirement, the PRRB would be authorized, if not

compelled, to deny the request. See id. In such a case, the PRRB would not reach the question

of whether the provider’s challenge raises a question of law that it lacks the authority to resolve.

        It does not, however, follow that if the PRRB determines that the provider has satisfied

the amount in controversy requirement and goes on to make a no authority determination, the

Administrator may nonetheless review the PRRB’s jurisdictional determination. If the

Administrator were to vacate the jurisdictional determination underlying the PRRB’s grant of

expedited judicial review, that administrative reversal would potentially have the effect of

precluding judicial consideration of the provider’s underlying challenge; indeed, that is precisely

the defendant’s position here. See Def.’s Cross-Mot. at 14-20 (arguing that the court lacks

jurisdiction over the Affinity plaintiffs’ substantive claims because of the Administrator’s

decision reversing the PRRB’s jurisdictional determination). Yet, as noted, the EJR provision

expressly states that a provider may obtain judicial review of the fiscal intermediary’s action




                                                 17
whenever the PRRB makes a no authority determination, without further qualification, so long as

it commences a timely civil action. 42 U.S.C. § 1395oo(f)(1). Accordingly, the Administrator’s

effort to vacate the PRRB’s “jurisdictional determination” is not consistent with the clearly

expressed legislative intent underlying the EJR provision. See Wilcox v. Ives, 864 F.2d 915, 925

(1st Cir. 1988) (observing that deference to an agency’s interpretation of a statute “is appropriate

only if the agency’s interpretation is consistent with the language, purpose, and legislative

history of the statute”).

        The cases relied on by the defendant do not persuade the court to reach a different

conclusion. See Def.’s Cross-Mot. at 17-20. Several of these cases stand for the uncontroversial

proposition that a provider requesting an EJR must establish the PRRB’s jurisdiction and do not

address situations in which the PRRB reached a determination that it lacked the authority to

resolve a question of law. See Lester E. Cox Med. Ctrs. v. Sebelius, 691 F. Supp. 2d 162, 168

(D.D.C. 2010) (affirming the PRRB’s dismissal of the provider’s request for EJR because the

provider failed to appear at a hearing to determine the PRRB’s jurisdiction); Three Lower

Counties Cmty. Health Servs. Inc. v. U.S. Dep’t of Health & Human Servs., 517 F. Supp. 2d 431,

435 n.4 (D.D.C. 2007) (stating that the provider did not qualify for an EJR because it failed to

submit a claim for benefits to the PRRB); Alexandria Hosp. v. Bowen, 631 F. Supp. 1237, 1244

(W.D. Va. 1986) (upholding a regulation providing that the thirty-day time limit for the PRRB to

rule on an EJR request does not begin to run until the PRRB makes its jurisdictional

determination). Those cases cited by the defendant that at least touch upon the Administrator’s

authority to review the jurisdictional component of an EJR decision contain no analysis or

discussion of the issue. See Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845, 851 (9th Cir. 1997)

(stating that the jurisdictional component of the PRRB’s EJR decision “was simply another




                                                 18
Board decision subject to review by the Administrator” without providing any analysis or

explanation regarding the basis for the Administrator’s authority); Lenox Hill Hosp. v. Shalala,

131 F. Supp. 2d 136, 138-41 (D.D.C. 2000) (assuming based on the applicable regulation that

“the jurisdictional component of the Board’s decision is reviewable by the Administrator”).10

       Indeed, the only case cited by the defendant that squarely addresses the Administrator’s

authority to review the jurisdictional component of an EJR decision is an unpublished decision

from the Northern District of California. See S.F. Gen. Hosp. v. Shalala, 2000 WL 1721082, at

*2-5 (N.D. Cal. Oct. 2, 2000) (holding that the Administrator possessed the authority to reverse

the PRRB’s jurisdictional determinations). That decision, however, contains no discussion of the

fact that the EJR provision states that judicial review shall be available whenever the PRRB

makes a no authority determination. See id. And although the decision suggests that a provider

could simply amend its complaint to challenge the Administrator’s reversal, id. at *5, this

roundabout avenue for judicial review does not bring the court’s interpretation in line with the

plain language of the EJR provision. For if a court were to uphold the Administrator’s reversal,

it would never review the provider’s underlying challenge to the fiscal intermediary action and

the related question of law, despite the fact that the EJR provision conditions such judicial

review solely on the commencement of a timely civil action following the no authority

determination by the PRRB, see 42 U.S.C. § 1395oo(f)(1). Accordingly, this court declines to

adopt the reasoning of that case.


10
       The defendant suggests that in this court’s prior ruling in Russell-Murray v. Sebelius, 2010 WL
       2814411 (D.D.C. July 20, 2010), the court affirmed the Administrator’s authority to review the
       jurisdictional component of an EJR decision. Def.’s Reply at 2, 10. In that case, however,
       neither party disputed the Administrator’s authority to review the PRRB’s jurisdictional
       determination, and the court merely pointed out that HHS had declined to utilize its purported
       authority to reverse the PRRB’s jurisdictional determination. Russell-Murray, 2010 WL
       2814411, at *11 n.14.


                                                  19
       In sum, the Administrator’s effort to reverse and vacate the PRRB’s grant of EJR to the

Affinity plaintiffs is not consistent with the unambiguous legislative intent underlying the EJR

provision. If permitted to stand, the Administrator’s reversal of the PRRB’s determination

would deny the provider immediate judicial review of the fiscal intermediary’s actions, despite

the PRRB’s determination that it lacked the authority to resolve the question of law underlying

the challenge. As nothing in the EJR provision expressly or impliedly delegates the authority to

review the jurisdictional component of an EJR decision to the Administrator, such outcome

would be inconsistent with plain language of the EJR provision. See 42 U.S.C. § 1395oo(f)(1);

Sea-Land Serv., 137 F.3d at 645 (observing that “[Chevron] deference comes into play . . . only

as a consequence of statutory ambiguity, and then only if the reviewing court finds an implicit

delegation of authority to the agency”). Thus, because the Administrator’s reversal fails under

the first step of the Chevron analysis, the court vacates the Administrator’s decision and sets it

aside. The court therefore proceeds to consider the merits of the plaintiffs’ challenge.11

      C. The Court Grants the Plaintiffs’ Motion for Summary Judgment and Denies
              the Defendant’s Cross-Motion for Summary Judgment on the
               Validity of the Challenged Cap Reimbursement Regulation

                            1. The Challenged Regulation Is Invalid

       The plaintiffs contend that the challenged repayment demands must be set aside because

the regulation on which they were based, 42 C.F.R. § 418.309(b)(1), impermissibly conflicts

with 42 U.S.C. § 1395f(i)(C)(2), the statutory provision it purports to implement. See Pls.’ Mot.


11
       The defendant briefly argues that if the court vacates the Administrator’s determination, “the
       proper remedy is remand for further proceedings consistent with the court’s opinion.” Def.’s
       Cross-Mot. at 33. The court fails to see what purpose remand would serve under these
       circumstances and, for the reasons already discussed, such an outcome would be inconsistent with
       the plain language of the EJR provision. See 42 U.S.C. § 1395oo(f)(1). Accordingly, the court
       declines to remand the Affinity plaintiffs’ claims and proceeds to consider the merits of the
       plaintiffs’ challenge.


                                                 20
at 26-32; Pls.’ Opp’n at 17-20. More specifically, they allege that the regulation is invalid

because it fails to proportionally allocate beneficiaries across years of service provided, as the

statute expressly requires. Pls.’ Mot. at 26-32. Although the defendant disputes the plaintiffs’

assertions, it concedes that this court has already held the cap reimbursement regulation invalid.

Def.’s Cross-Mot. at 26 (citing Russell-Murray v. Sebelius, 2010 WL 2814411 (D.D.C. July 20,

2010)). Rather than submitting further briefing on the same arguments, the defendant

incorporates by reference the arguments it made in connection with the Russell-Murray case. Id.

       As this court noted in Russell-Murray, every court that has considered the issue has held

that the cap reimbursement regulation impermissibly conflicts with the unambiguous terms of the

statute. Russell-Murray, 2010 WL 2814411, at *13 (concluding that the cap reimbursement

regulation is invalid); see also Tri-County Hospice, Inc. v. Sebelius, 2010 WL 784836, at *3

(E.D. Okla. Mar. 8, 2010) (noting that the question of the regulation’s invalidity was “well-trod

ground”). The parties’ arguments in this case mirror those raised in Russell-Murray.12 See id.;

Pls.’ Mot. at 26-32; Def.’s Cross-Mot. at 26. For the reasons articulated in that ruling, the court

once again concludes that the hospice cap reimbursement regulation is invalid and constitutes an

abuse of agency discretion.




12
       In a footnote to its cross-motion for summary judgment, the defendant suggests that Destiny
       Hospice lacks standing because it did not submit a calculation demonstrating that the application
       of a proportional application would result in a monetary benefit to the hospice. Def.’s Cross-Mot.
       at 26 n.17. Yet, as the defendant acknowledges, this court concluded in Russell-Murray that
       hospices have standing to challenge the cap reimbursement regulation simply by virtue of the fact
       that they are being directly subjected to an unlawful regulation. See Russell-Murray, 2010 WL
       2814411, at *8 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992)). For the
       reasons discussed in that ruling, the court rejects the defendant’s challenge to Destiny Hospice’s
       standing.


                                                  21
                                     2. The Relief Requested

                                        a. Injunctive Relief

         The plaintiffs request that the court enter an injunction prohibiting HHS from using the

invalid reimbursement regulation to calculate the plaintiffs’ cap liability. See Pls.’ Mot.,

Proposed Order; Pls.’ Opp’n at 18. The defendant objects to the plaintiffs’ request for an

injunction barring the prospective use of the regulation, arguing that such an order would grant

the plaintiffs relief for challenges to cap determinations and cost years that have not been

exhausted at the administrative level. Defs.’ Cross-Mot. at 27.

         Once a reimbursement challenge has reached the end of the administrative review

process, the subsequent judicial action is governed by the terms of the APA. See 42 U.S.C. §

1395oo(f)(1). The APA authorizes the court to enjoin unlawful agency action. See 5 U.S.C. §

702 (waiving the government’s sovereign immunity to suits by individuals suffering a legal

wrong because of agency action and “seeking relief other than money damages”). Indeed,

numerous courts have, after holding the cap reimbursement regulation invalid, entered

injunctions barring HHS from prospectively using the regulation against the hospice plaintiff.

See Legal Health Care, Inc. v. Sebelius, 2010 WL 3258131, at *1 (D. Utah Aug. 17, 2010);

Russell-Murray, 2010 WL 2814411, at *11; Hospice of N.M., LLC v. Sebelius, 691 F. Supp. 2d

1275, 1295 (D.N.M. 2010); Lion Health Servs. v. Sebelius, 689 F. Supp. 2d 849, 858 (N.D. Tex.

2010); Compassionate Care Hospice v. Sebelius, 2010 WL 2326216, at *5 (W.D. Okla. June 7,

2010).

         Although the defendant cites a number of cases standing for the proposition that the court

may grant relief in reimbursement challenges only with respect to matters over which it has

jurisdiction, none of those cases concerned a facial attack on the validity of a regulation. See,




                                                 22
e.g., Shalala v. Ill. Council on Long Term Health, 529 U.S. 1, 10-20 (2000) (holding that

providers may not bypass altogether the administrative review process and bring a

reimbursement challenge in the district court under 28 U.S.C. § 1331); Riley Hosp. & Benevolent

Ass’n v. Bowen, 804 F.2d 302, (5th Cir. 1986) (holding that the court lacked jurisdiction to award

interest under 42 U.S.C. § 1395oo(f)(2) for cost years that were not administratively exhausted)

Here, the very question that has been funneled through the administrative process and is now

before the court is the Administrator’s authority to utilize 42 C.F.R. § 418.309(b)(1) in

calculating the plaintiffs’ reimbursement cap. See generally Am. Compl. Having answered that

question by determining that the regulation is invalid and that the Administrator may not rely on

it, see supra Part III.C, the court enjoins HHS from continuing to use the regulation to calculate

the plaintiffs’ hospice cap liability.

                                         b. Monetary Relief

        Having concluded that the cap reimbursement regulation is invalid, it follows that the cap

repayment demands at issue in this case, which were calculated based on that invalid regulation,

are also invalid and unlawful. Accordingly, the court sets aside the cap repayment demands

issued to all of the plaintiffs for 2006, as well as the cap repayment demands issued to plaintiffs

Destiny Hospice and Hospicio Toque de Amor for 2007.

        The question remains as to what to do with the monies that the plaintiffs have already

paid to HHS pursuant to these set aside demands. The plaintiffs contend that the court should

direct HHS to return these monies or credit any portion of such prior payments to new cap

repayment demands issued to the plaintiffs. Pls.’ Mot., Proposed Order; Pls.’ Opp’n at 21-24.

The defendant argues that the court should remand the matter to HHS, as it did in the Russell-




                                                 23
Murray case, so that the PRRB can recalculate the plaintiffs’ cap repayment obligation using the

proportional method called for in the statute. Def.’s Cross-Mot. at 34; Def.’s Reply at 20-24.

       Once a court concludes that an agency has committed an error of law, the normal remedy

is remand. See Immigration & Naturalization Serv. v. Orlando Ventura, 537 U.S. 12, 16-17

(2002); BizCapital Bus. & Indus. Dev. Corp. v. Comptroller of the Currency, 467 F.3d 871, 873-

74 (5th Cir. 2006) (observing that when an agency action is “based upon a conclusion of law that

the district court subsequently rejected” a remand to the agency “is usually required”). Indeed,

the majority of district courts that have held the hospice cap regulation invalid have denied the

hospice’s request to order the return of all monies paid to HHS pursuant to set aside

reimbursement demands and remanded the matter to the agency for further proceedings. See

Hospice of N.M., LLC, 691 F. Supp. 2d at 1294; Compassionate Care Hospice, 2010 WL

2326216, at *5; Tri-County Hospice, Inc., 2010 WL 784836, at *3; IHG Healthcare v. Sebelius,

2010 WL 2380743, at *12 (S.D. Tex. June 13, 2010); Russell-Murray, 2010 WL 2814411, at

*13.

       Although the plaintiffs argue that remand would be inappropriate because the agency

lacks the authority to perform a “sub-regulatory” calculation of the plaintiffs’ reimbursement

obligation, see Pls.’ Opp’n at 21-24, the Supreme Court has observed that the PRRB may

properly interpret statutory directives as part of its normal adjudicative process, even in the

absence of a regulation speaking to the precise issue in dispute, Shalala v. Guernsey Mem’l

Hosp., 514 U.S. 87, 96-97 (1995). Indeed, as the defendant points out, HHS has in fact

performed such a calculation when directed to do so by a court. See Autumn Bridge, LLC v. Blue

Cross Blue Shield Ass’n, PRRB Dec. No. 2010-D8 (Decision of the Administrator) (Jan. 21,

2010), available at http://www.cms.gov/officeattorneyadvisor/downloads/2010-D8.pdf.




                                                 24
Accordingly, the court remands this matter to the HHS for a recalculation of the plaintiffs’ cap

liability for the years at issue.



                                      IV. CONCLUSION

        For the foregoing reasons, the court grants the plaintiffs’ motion for summary judgment,

denies the defendant’s cross-motion for summary judgment and denies as moot the defendant’s

motion to dismiss the original complaint and the plaintiffs’ renewed motion for a temporary

restraining order. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 25th day of October, 2010.



                                                           RICARDO M. URBINA
                                                          United States District Judge




                                                25
