                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0037n.06

                                         Case No. 15-6307                                FILED
                                                                                   Jan 18, 2017
                            UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


SOUTHERN REHABILITATION GROUP,                          )
P.L.L.C., d/b/a Occupational Alternative &              )
Rehabilitative Services, P.C., and JAMES P.             )
LITTLE, M.D.,                                           )         ON APPEAL FROM THE
                                                        )         UNITED STATES DISTRICT
       Plaintiffs-Appellants,                           )         COURT FOR THE EASTERN
                                                        )         DISTRICT OF TENNESSEE
v.                                                      )
                                                        )
SYLVIA M. BURWELL, Secretary of the United              )
States Department of Health and Human Services,         )
                                                        )
       Defendant-Appellee.                              )

                                            OPINION

       BEFORE: BOGGS and McKEAGUE, Circuit Judges; and BECKWITH, District Judge.*

       McKEAGUE, Circuit Judge. Southern Rehabilitation Group, P.L.L.C. and Dr. James

Little brought this civil action to recover interest payments on Medicare claims voluntarily paid

by the Secretary of the Department of Health and Human Services. On remand following an

initial appeal, the district court held that the plaintiffs were not entitled to interest on the claims

because the claims were not “clean” as required by the provision of the Medicare Act that

authorizes interest payments. Accordingly, the court granted summary judgment to defendants.



       *
          The Honorable Sandra S. Beckwith, United States District Judge for the Southern
District of Ohio, sitting by designation.
Case No. 15-6307, Southern Rehab. Grp., et. al v. Sec’y of HHS


Because the district court’s decision correctly applied the Medicare Act provision, and because

the court did not commit any other error, we affirm.

                                                I

       This is the second appeal in this matter. See S. Rehab. Grp v. Sec’y of HHS, 732 F.3d

670, 672–76 (6th Cir. 2013). Although the dispute spans at least fifteen years, we begin with

only that background relevant to the immediate appeal.

       In 2001, Dr. James Little became the medical director of Southern Rehabilitation Group,

P.L.L.C. Collectively, the provider generated approximately 10,000 Medicare claims per year,

representing 70% of its patients. Relevant here are some 6,200 such claims, generated between

2001 and 2006. All of these claims were initially sent to a Medicare contractor, CIGNA,

responsible for review and payment.

       During the same period, plaintiffs were under a Progressive Corrective Action plan,

which led CIGNA to order “prepayment medical review” on 100% of the claims.                   The

prepayment review was conducted by a subcontractor. Prepayment medical review involves a

contractor individually evaluating claims for errors or discrepancies and may require the provider

to submit additional documentation, if necessary. See Medicare Program Integrity Manual, CMS

Pub. #100-08, Ch. 3, §§ 3.2.3.1, 3.2.3.2.

       During prepayment review, the subcontractor denied or down-coded many of the claims.

A complex series of administrative proceedings followed as plaintiffs challenged these

determinations. The relevant claims here are those 6,200 claims which remained unpaid or

down-coded when the administrative review process had been exhausted. See S. Rehab. Grp.,

732 F.3d at 684. Following administrative review, plaintiffs asserted they were still owed

$107,171.07 on those claims. Id.



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       Accordingly, plaintiffs filed this civil action against the Secretary of the United States

Department of Health and Human Services, in part seeking judicial review of the final agency

decision and reimbursement for the 6,200 claims under 42 U.S.C. § 1395ff(b)(1).1 See S. Rehab.

Grp., 732 F. 3d at 674. Initially, the Secretary moved to dismiss, but followed this with a motion

for partial remand on the 6,200 claims in order to voluntarily pay plaintiffs the $107,171.07 then

in dispute on those claims. S. Rehab. Grp., 732 F. 3d at 674–75. The plaintiffs responded by

arguing that the proposed payment was insufficient because it did not include interest and

improperly relieved the Secretary of responsibility for filing the related administrative record.

The district court granted the motion and the Secretary paid the plaintiffs the amount they had

originally demanded on the claims—but no interest.

       Following this payment, the district court entered judgment for defendants on the

remaining claims. In its opinion, the district court dismissed the claims for payment on the

6,200 claims as moot and denied plaintiffs’ request for interest payments because, according to

the Medicare Claims Manual, interest payments were not authorized on claims initially

processed to denial. S. Rehab. Grp., P.L.L.C. v. Sebelius, 874 F. Supp. 2d 733, 742 (E.D. Tenn.

2012). Plaintiffs timely appealed. S. Rehab. Grp., 732 F.3d at 676. On appeal, in relevant part,

this court considered whether plaintiffs were owed interest on the 6,200 claims voluntarily paid

by the Secretary. Id. at 683–84.

       The plaintiffs claimed they were owed interest under the “clean claims” provision of the

Medicare Act. Id. at 684. This provision provides that:

       (B)(i) The term ‘clean claim’ means a claim that has no defect or impropriety
       (including any lack of any required substantiating documentation) or particular

       1
         Reimbursement for the 6,200 claims made up only part of plaintiffs’ complaint, but
discussion of other claims has been left out of this background. See, S. Rehab. Grp., F.3d at
672–77. At this stage, Secretary Sylvia M. Burwell is the only remaining defendant.
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Case No. 15-6307, Southern Rehab. Grp., et. al v. Sec’y of HHS


        circumstance requiring special treatment that prevents timely payment from being
        made on this claim under this part.
        (ii) The term “applicable number of calendar days” means—
        (V) 30 calendar days.
        (C) If payment is not issued, mailed, or otherwise transmitted within [30 days]
        after a clean claim is received, interest shall be paid . . . for the period beginning
        on the day after the required payment date and ending on the date on which
        payment is made.
42 U.S.C. § 1395u(c)(2)(B) and (C).

        The Secretary read the provision to be entirely inapplicable to claims initially processed

to denial and paid only after judicial review, which would mean no interest was owed on the

relevant claims. S. Rehab. Grp., 732 F.3d at 685. The court applied Skidmore deference to the

Secretary’s interpretation, but found it unpersuasive. Id. at 685–86. The court read 42 U.S.C.

§ 1395u(c)(2)(B) and (C) to mean that:

        Congress placed only two limitations on the payment of interest under the clean-
        claims provision. First, the claim must be clean, meaning it has “no defects or
        improprieties.” Second, if the claim is clean, interest is automatically due if the
        claim is not paid “within [30 days] after the . . . claim is received.” That’s it.
        There are no further limitations in Congress’s express language.
Id. at 686 (internal citations omitted) (alterations in original).

        The court found the Secretary’s interpretation unreasonable because excluding claims

initially processed to denial “place[d] additional limitations” beyond the two named in the

statute. Id. Thus, the court reversed the district court’s decision granting summary judgment to

the Secretary on plaintiffs’ claims for interest and remanded for further proceedings.2 Id. at 686–

87. The district court was ordered on remand to determine whether “interest is due on some or

all of the 6,200 claims.” Id.


        2
         The court affirmed the district court’s dismissal of plaintiffs’ other claims for lack of
subject matter jurisdiction. See id. at 680, 683.
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Case No. 15-6307, Southern Rehab. Grp., et. al v. Sec’y of HHS


       The Secretary subsequently filed a motion for judgment on the pleadings. Her position

was that prepayment review, to which the claims were subject, was a form of special treatment

that exempted interest payments under the statute by making them not “clean.”          Plaintiffs

responded by arguing that this was not a proper interpretation of the statute and that the

Secretary’s position was contrary to the Sixth Circuit’s earlier opinion.

       The district court granted summary judgment for the Secretary. S. Rehab. Grp., P.L.L.C.

v. Burwell, 2015 WL 5703238, at *4 (E.D. Tenn. Sept. 28, 2015). The court held that a claim is

“clean” if it is “free of defects or improprieties OR [if] the claim involves a ‘particular

circumstance requiring special treatment that prevents timely payment.’” Id. at *3 (quoting

42 U.S.C. § 1395u(c)(2)(B)(i)). The court concluded that the prepayment medical review of

claims is a type of treatment that precluded interest payments under the provision and, because

all the relevant claims had been subject to prepayment medical review, they were not “clean.”

Id. at *4. The court granted summary judgment to the Secretary. Id. This appeal followed.

                                                 II

       The district court had jurisdiction to consider the relevant claims under 42 U.S.C.

§ 1395ff(b)(1)(A) and 42 U.S.C. § 405(g). See also S. Rehab. Grp., 732 F.3d at 684–85. This

court has jurisdiction over the district court’s final order under 28 U.S.C. § 1291.

                                                 A

       Plaintiffs argue that the district court considered arguments outside the scope of its

mandate on remand. “When a case has been remanded by an appellate court, the trial court is

bound to ‘proceed in accordance with the mandate and law of the case as established by the

appellate court.’” Goldberg v. Maloney, 692 F.3d 534, 538 (6th Cir. 2012) (quoting Hanover




                                                -5-
Case No. 15-6307, Southern Rehab. Grp., et. al v. Sec’y of HHS


Ins. Co. v. Am. Eng'g Co., 105 F.3d 306, 312 (6th Cir. 1997)). This court reviews the scope of

remand de novo. United States v. Hunter, 646 F.3d 372, 374 (6th Cir. 2011).

       Plaintiffs assert that this court remanded to the district court for the limited purpose “to

address whether interest was due on [the relevant] claims,” and that, instead, the court

impermissibly considered arguments they allege the Secretary had waived: whether those claims

were actually “clean.”

       The relevant passage from the appellate court opinion is:

       On summary judgment, it was the Secretary’s burden to show that no genuine
       issue of material fact exists as to plaintiffs’ claim for interest. But she cannot rely
       on her unreasonable interpretation of the clean-claims statute as a basis for
       summary judgment. In order to be entitled to summary judgment, she would
       presumably have to show that plaintiffs’ claims were not clean claims denied
       outside of the 30–day window. On remand, the district court should address
       whether interest is due on some or all of the 6,200 claims for reimbursement that
       plaintiffs appropriately brought before the district court.
S. Rehab. Grp., 732 F.3d at 686–87 (emphasis added). In other words, we instructed the court to

determine whether the claims were owed interest—noted they would be if both “clean” and

unpaid after 30 days—and left it to the Secretary to prove they were not. See id.

       That is exactly what happened. On remand, the Secretary endeavored to show the claims

were not clean. The district court agreed with her position and granted summary judgment.

S. Rehab. Grp., P.L.L.C., 2015 WL 5703238, at *4. These proceedings on remand tracked this

court’s order precisely.

       Further, despite plaintiffs’ contentions, the Secretary had not waived the argument that

the relevant claims were not “clean” by failing to raise it in earlier proceedings. Indeed, the

Secretary had included this position in a footnote on the first appeal. Case No. 12-5903, Doc.

006111645361, at 46, n.15 (“clean claims do not entail investigation or development by the

Medicare contractor on a prepayment basis”). But it was unnecessary at that stage for her to


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make this argument more fully. On the first appeal she was arguing that the “clean claims”

provision did not apply to these claims whatsoever—the question of whether or not these claims

were “clean” was entirely irrelevant to the Secretary’s initial position. See id. at 47. However,

once this court rejected her reading and held the clean-claims provision did apply, she prudently

turned her full attention to the now-dispositive argument which she had left aside—whether the

claims were “clean.” See S. Rehab. Grp., 732 F.3d at 686–87. As she had not waived the

argument, it would be doubly improper to preclude her from making it after instructing on

remand that it would be grounds for summary judgment. 3 Id.

       Thus, the arguments made by the Secretary and considered by the district court were

properly within the scope of remand.

                                               B

       Plaintiffs also challenge the district court’s procedural decision to sua sponte grant

summary judgment on defendants’ post-remand Rule 12(b)(6) motion. Plaintiffs argue that this

conversion denied them both notice and the opportunity for discovery as required by the Federal

Rules of Civil Procedure.

       Federal Rule of Civil Procedure 12(d) requires that, upon conversion of a motion to

dismiss to one for summary judgment, parties need only be given a “reasonable opportunity to

present all the material that is pertinent to the motion.” However, a district court may enter

summary judgment sua sponte if the losing party is “afforded notice and reasonable opportunity

       3
          Nor can the Secretary be said to have waived this argument because she voluntarily paid
interest on some of the claims subject to prepayment medical review. It is not clear whether
those interest payments were made because they were “clean claims” not paid after thirty days or
because a different applicable provision of the Medicare statute applied. See, e.g., 42 U.S.C.
§ 1395l(j) (requiring payment of interest when a final determination is made that a claim was
underpaid initially and the difference was not paid within 30 days of that determination). The
fact that the Secretary made some interest payments on some claims does not mean she forfeited
the right to challenge plaintiffs’ entitlement to interest on other claims.
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to respond to all the issues to be considered by the court.” Shelby Cnty. Health Care Corp. v.

S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir. 2000).

Lack of formal notice “will be excused when it is harmless.” Tackett v. M & G Polymers, USA,

LLC, 561 F.3d 478, 487–88 (6th Cir. 2009) (quoting 5C C. Wright & A. Miller, Federal Practice

and Procedure § 1366, p. 198 (3d ed. 2004)).

       Our review is for abuse of discretion. Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102,

1104 (6th Cir. 2010). A decision will be reversed for abuse of discretion only if we have “a

definite and firm conviction that the trial court committed a clear error of judgment.” Barnes v.

Owens–Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir. 2000).

       The district court’s decision to sua sponte convert the Rule 12(b)(6) motion into one for

summary judgment was not an abuse of discretion. The district court’s final order had three

necessary components. First, the clean-claims provision was read to mean a claim is not “clean”

if it is subject to special treatment that prevents timely payment. S. Rehab. Grp., P.L.L.C., 2015

WL 5703238, at *3. Second, prepayment medical review was deemed to constitute special

treatment that prevents timely payment within the meaning of the statute. Id. *3. Third, the

court held that all of the relevant claims had been subjected to prepayment medical review. Id. at

*4. The first component is not genuinely disputed. Plaintiffs provided comprehensive counter

arguments for the second component of the court’s eventual order in their response to the

Secretary’s Rule 12(b)(6) motion. The order’s third necessary component, going all the way

back to the first district court filing in 2009, has never been in dispute. Plaintiffs therefore had

adequate opportunity to respond to the issues considered by the district court in granting

summary judgment sua sponte and, indeed, fully took advantage of the opportunity. See Shelby




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Cty. Health Care Corp., 203 F.3d at 932 (finding no abuse of discretion for sua sponte entry of

summary judgment where both parties comprehensively addressed the argument for dismissal).

       Not only did plaintiffs have the opportunity to respond to the relevant issues prior to the

conversion, they effectively caused it. Plaintiffs attached an affidavit to their response to the

Secretary’s post-remand motion. It was the inclusion of this affidavit—identifying the relevant

claims and again confirming they were subject to prepayment medical review—that necessitated

the court’s conversion of the motion. See Mac Arnold & Sons, LLC v. W.L. Hailey & Co.,

452 F.3d. 494, 503 (6th Cir. 2006). Again, the lack of notice was harmless: plaintiffs cannot

have been surprised the motion was converted when the conversion was due to the court’s

reliance on the very affidavit they submitted. Therefore, the district court’s procedural decision

to sua sponte convert a Rule 12(b)(6) motion to one for summary judgment was not an abuse of

discretion.

                                                C

       This court reviews a decision to grant summary judgment de novo. Gribcheck v. Runyon,

245 F.3d 547, 500 (6th Cir. 2001). Summary judgment is appropriate if there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). The moving party has the burden to show that no genuine issue of material fact

exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

                                                1

       Before considering the substance of the lower court’s interpretation of the statute, we

dispose of what appears to be some friction between our initial reading of the “clean claims”

provision and that adopted by the district court. Although this court had said that a “clean claim”

means one with “no defects or improprieties” and went no further, the district court pointed out



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that the statute includes a category we failed to mention: claims involving “particular

circumstances requiring special treatment that prevents timely payment.”          S. Rehab. Grp.,

P.L.L.C., 2015 WL 5703238, at *3. Such claims, the court held, are also not “clean” under the

provision. Id at *4. The district court was not wrong. Reading the statute’s plain language

shows two alternative categories of unclean claims, either those with defects or improprieties or

those involving particular circumstances requiring special treatment that prevents timely

payment. See 42 U.S.C. § 1395u(c)(2)(B) and (C). Neither party genuinely disputes this

reading.

       Nor does it contradict the substance of this court’s prior opinion. The necessary holding

of that opinion was that the “clean claims” provision requires only two things for interest to

attach: that claims are “clean” and that they are unpaid within a specified time after submission.

It was not necessary for this court’s holding to determine what makes a claim “clean” under the

provision. Thus, the district court correctly held that the clean-claims provision provides two

categories of unclean claims: (1) those with defects or improprieties, or; (2) those subject to

circumstances requiring special treatment that prevents timely payment. 42 U.S.C.

§ 1395u(c)(2)(B).

                                                 2

       No interest is payable by the federal government except where Congress has expressly

authorized it. Library of Congress v. Shaw, 478 U.S. 310, 315 (1986). The “clean claims”

provision in the Medicare Act is Congress’s express authorization of interest in this case. See S.

Rehab. Grp., 732 F.3d at 684. The provision requires the government to make interest payments

on the relevant claims if two conditions are satisfied: first, that the claims are “clean” under the




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statutory meaning; and second, that the claims have been unpaid for 30 days. See id at 685;

42 U.S.C. § 1395u(c)(2)(B) and (C).

       The Secretary asserts that the 6,200 claims at issue are not clean as a matter of law and

she is therefore not authorized to pay interest on them. Under the provision, a claim is “clean”

unless it has “defects or improprieties” or it is “subject to particular circumstances requiring

special treatment that prevents timely payment.” See id. The Secretary asserts that prepayment

medical review constitutes special treatment preventing timely payments. The district court

agreed. S. Rehab. Grp., P.L.L.C., 2015 WL 5703238, at *4.

       We employ the usual tools of statutory interpretation to determine if prepayment medical

review is a type of “special treatment that prevents timely payment” under the clean-claims

provision. We begin this analysis “by examining the language of the statute itself to determine if

its meaning is plain.” Nat’l Air Traffic Controllers Ass’n v. Dep’t of Transp., 654 F.3d 654, 657

(6th Cir. 2011) (internal quotation marks omitted). “Plain meaning is examined by looking at the

language and design of the statute as a whole.” Id. (internal quotation marks omitted).

       The plain language of the statute supports a reading that claims subject to prepayment

medical review are not “clean.” For a claim not to be clean under the relevant clause, two

conditions must be satisfied. First, the claim must be “subject to particular circumstances

requiring special treatment.” 42 U.S.C. § 1395u(c)(2)(B). Second, that special treatment must

“prevent[] timely payment.” Id.

       Here, the provider was subject to an onerous Progressive Corrective Action plan under

which all relevant claims were submitted to prepayment medical review. While most Medicare

claims are paid upon receipt, prepayment medical review is an error prevention program

applying “to those services and items that pose the greatest financial risk to the Medicare



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program and that represent the best investment of resources.” See Medicare Program Integrity

Manual, CMS Publication #100-08, ch. 3, § 3.2.1. In other words, prepayment medical review is

atypical.4 Indeed, 100 percent prepayment medical review of a provider’s claims, like that here,

is used only in exceptional circumstances. See id. at § 3.1 (contractors “shall deal with serious

problems using the most substantial administrative actions available, such as 100 percent

prepayment review of claims”). The prepayment medical review process itself requires detailed,

individualized consideration of the claims to ensure proper billing and avoid payment errors.

See id. at §§ 3.3.1, 3.3.1.1–2.    Thus, prepayment medical review constitutes a particular

circumstance requiring special treatment of Medicare claims.5

       In addition to being subject to special treatment, however, that special treatment must

also “prevent[] timely payment.” 42 U.S.C. § 1395u(c)(2)(B). This condition can be read one of

two ways.    Either a treatment “prevents timely payment” in that it delays payment; or it

“prevents timely payment” in that it causes payment to fall outside the 30-day, interest-free

window. The phrase “timely payment” is not used elsewhere in the statute and is not defined.

However, where Congress intended to refer to a specific timeline for payment in the section, it

used the phrase “applicable number of calendar days.” See 42 U.S.C. § 1395u(c)(2)(B)(ii), (C),

and (3)(A). Accordingly, the phrase “prevents timely payment” should not be conflated to mean

failure to pay by the statutory deadline as Congress was explicit when referring to those


       4
          Indeed, it would not be practical to implement medical review of all claims. See id. at
§ 3.2.1 (providing guidance for when medical review applies and noting that “the claims volume
of the Medicare Program doesn’t allow for review of every claim”); See also United States v.
Sanet, 666 F.2d 1370, 1372 (11th Cir. 1982) (noting “it would not be administratively feasible to
routinely require, in advance of payment, full medical documentation of” claims).
       5
         We note, for the sake of clarity, that “prepayment medical review,” as applied, is both a
“particular circumstance” and a “special treatment.” A claim placed under prepayment medical
review—and so subject to a particular circumstance—is given special treatment—the additional,
individualized scrutiny imposed by the review itself.
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deadlines.   See, e.g., 42 U.S.C. § 1395u(c)(2)(C) (“[i]f payment is not issued, mailed, or

otherwise transmitted within the applicable number of calendar days…”). Reading the phrase

“prevents timely payment” to mean exactly the same thing as “payment not…transmitted within

the applicable number of calendar days” would contravene the presumption that “when the

legislature uses certain language in one part of the statute and different language in another, the

court assumes different meanings were intended.” DePierre v. United States, 564 U.S. 70, 83

(2011) (quoting Sosa v. Alvarez–Machain, 542 U.S. 692, 711, n. 9 (2004)). Therefore, in its

statutory context, the phrase referring to treatment that “prevents timely” payment, refers to

treatment that delays it.

       Prepayment medical review delays payment. First, it seems almost too obvious to note

that prepayment medical review, as particularized review of claims before payment, will delay it.

See Medicare Program Integrity Manual, CMS Publication #100-08, ch. 3, §§ 3.3.1, 3.3.1.1–2.

Relatedly, prepayment review is conceptually distinct from post-payment review—an alternative

treatment in which a contractor ensures proper billing only after payment. See id. at § 3.2.

Finally, prepayment medical review includes various possibilities that, if triggered, would

substantially delay processing. See e.g., id. at § 3.2.3.2 (providing 45 days for providers to

respond to a request for additional documentation); id. at § 3.2.3 (requiring contractor to hold

claims for 7–10 days upon notice of forthcoming unsolicited documentation and then requiring a

determination within 30 days of receiving that documentation).

       In sum, under the statute’s plain meaning, claims subject to prepayment medical review

are subject to particular circumstances requiring special treatment that prevents timely payment

and are therefore not “clean” under the clean claims provision.




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       This reading is consistent with that adopted by other authorities. The Secretary’s

interpretation has long been that “clean claims are defined as claims that do not require Medicare

[contractors] to investigate or develop them outside of their Medicare operations on a

prepayment basis.” 73 Fed. Reg. 36522, 362526 (June 27, 2008). Likewise, the Seventh Circuit

has read the clean-claims provision to mean that claims subject to prepayment medical review

were not clean. See Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 591

(7th Cir. 2014). Moreover, this reading is consistent with the legislative history of the provision.

See H.R. Rep. No. 99-727, at 440 (1986), as reprinted in 1986 U.S.C.C.A.N. 3607, 3837 (noting

that claims are clean if they “do not require special treatment, such as medical review”).

Considering this persuasive authority alongside the statute’s plain language, it can be said that

claims subject to prepayment medical review are not “clean” as a matter of law.

       Plaintiffs insist this is a factual issue. They contend that the Secretary must show that the

claims themselves both required prepayment medical review and that medical review, of some

specificity, actually took place. These factual findings are unnecessary under a fair reading of

the statute. Indeed, reading the statute to require the Secretary to show prepayment medical

review was required due to some characteristic of a claim itself would be to read-out the statute’s

disjunctive language that makes a claim unclean if it either has a defect or impropriety or if it is

subject to particular circumstances requiring special treatment. See 42 U.S.C. § 1395u(c)(2)(B).

Despite plaintiffs’ contentions, the provision’s second category would be made meaningless if it

required a finding that a claim had some characteristic necessitating individualized review—

flaws in individual claims are already covered by the first category. Thus, in order for us to find

the claims were not clean under a fair reading of the statute, the Secretary may merely show the

claims were subject to a particular circumstance requiring special treatment. In this case, the



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claims were subject to prepayment medical review—a particular circumstance requiring special

treatment.

       Finally, this interpretation of the statute does not unduly conflict with its purpose.

As stated in our previous opinion, the interest authorization in the Medicare statute is meant to

incentivize the prompt payment of claims. See S. Rehab. Grp., 732 F.3d at 685–86. However,

the requirement that claims be “clean” before interest attaches reflects Congress’s need to

balance prompt payment with its interest in preventing fraud and overpayment. See H.R. Rep.

No. 99-727, at 440 (1986), as reprinted in 1986 U.S.C.C.A.N. 3607, 3837. Prepayment medical

review is designed to prevent overpayment and is atypical treatment that does not apply to the

vast majority of claims. See Medicare Program Integrity Manual, CMS Pub. #100-08, Ch. 3,

§ 3.1. The Secretary’s responsibility to pay only valid claims and do so promptly is fully

consistent with a finding that, in the unusual case where prepayment medical review applies to a

claim, the claim is not owed interest under the statute.6 This reading reflects the provision’s

purpose of balancing the competing interests of prompt payment and preventing overpayment.

       As the claims at issue were subject to prepayment medical review, they are not “clean”

under the clean-claims provision and the Secretary owes no interest. Accordingly, the district

court did not err in granting summary judgment for the Secretary.

                                                V

       For the foregoing reasons, we AFFIRM the decision of the district court.




       6
         Indeed, that prepayment medical review is atypical treatment is an essential element of
our holding. Were the Secretary to submit all future Medicare claims from all providers to such
review (say, in an attempt to avoid interest payments across-the-board), the treatment would no
longer be “special” and would not fit within the exception to paying interest we find applies here.
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Case No. 15-6307, Southern Rehab. Grp., et. al v. Sec’y of HHS


BOGGS, Circuit Judge, Dissenting.

       The majority’s opinion echoes the Secretary’s position, in the abstract, that a claim

cannot be “clean” if it is “subject to a particular circumstance requiring special treatment.”

(Op. at 11–12 & n.5, 14). This would be a sensible reading, were it not for the Secretary’s

explicit position that such a “particular circumstance” can be simply the Secretary’s assertion

that a claim, category of claims, or claims from a particular provider, shall be subjected to such

individualized review, and that no reason whatsoever need be supported, or even asserted. The

distinction between “supported” and “asserted” is crucial, in that the Secretary’s position would

be much stronger if it were only that the Secretary did not bear the burden of proving the

necessity for such review in every instance. An alternative, and much lighter, burden would be

the equivalent of the burden-shifting in McDonnell Douglas cases, e.g., 411 U.S. 792 (1972),

where the defender of an action (in this case the Secretary) would need only to assert a

“legitimate non-discriminatory reason” or something similar in order to shift the burden of

production, or even persuasion or proof.

       Instead, the Secretary’s explicit position (which the majority does not advert to) is that

the Secretary’s placing a claim or a category of claims under review prevents such claims from

being “clean,” no matter the reason. The Secretary’s decision is still considered inviolate, when

made for any reason or no reason—even, at the extreme, a discriminatory reason. See Def.’s

Resp. in Opp’n to Pls.’ Mot. for Leave to File Second Am. Compl. 4 (“Even in extreme cases

when an intentional and invidious motivation—e.g., racial discrimination—is alleged to be the

reason that a practitioner’s Medicare claims are placed on prepayment review, there is no

potential relief [by way of interest payment].”).




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Case No. 15-6307, Southern Rehab. Grp., et. al v. Sec’y of HHS


       I cannot agree with such an extreme interpretation, or its sanctification by this court’s

opinion, and I therefore respectfully dissent.




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