Am. Hosp. Ass'n v. Burwell

68 F.Supp.3d 54

The American Hospital Association, et al., Plaintiffs

v.Sylvia Matthews Burwell, in her official capacity as Secretary of Health and Human Services, Defendant.

Civil Action No. 12–1770CKK

United States District Court, District of Columbia.

Signed September 17, 2014

Catherine E. Stetson, Dominic F. Perella, Hogan Lovells, U.S. LLP, Washington, DC, for Plaintiffs.

Eric B. Beckenhauer, Jeffrey Michael Smith, Matthew J.B. Lawrence, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiffs, the American Hospital Association, Missouri Baptist Sullivan Hospital, Munson Medical Center, Lancaster General Hospital, Trinity Health Corporation, and Dignity Health (collectively, “Plaintiffs”), bring this action against Defendant Sylvia Matthews Burwell, in her official capacity as Secretary of Health and Human Services,¹ asserting claims that Defendant's purported policy applying time limits to the billing of certain Medicare claims is arbitrary and capricious in violation of the Administrative Procedure Act; that defendant is equitably estopped from applying the timely filing limit to certain new Medicare Part B claims; and that the Medicare Act's one-year time limit is equitably tolled. Plaintiffs seek both declaratory and injunctive relief. Presently before the Court is Defendant's [31] Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim upon which Relief can be Granted. Upon consideration of the pleadings,² the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's motion with respect to the lack of jurisdiction. Accordingly, this action is DISMISSED in its entirety.

I. BACKGROUND

A. Factual Background

When patients are admitted to a hospital, they are treated on an inpatient basis; when patients are treated without being admitted, they are treated on an outpatient basis. Second Am. Compl. ¶ 1. Upon the submission of claims to the Secretary of Health and Human Services, see 42 U.S.C. §§ 1395f(a)(1), 1395n(a)(1), Medicare Part A provides reimbursement for inpatient care of patients, and Medicare Part B provides reimbursement for outpatient services. Second Am. Compl. ¶¶ 3, 4. Claims for reimbursement must be submitted “no later than the close of the period ending 1 calendar year after the date of service.” 42 U.S.C. §§ 1395n(a)(1) ; see also 1395f(a)(1). The Medicare Act charges the Secretary with “prescrib[ing] such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter.” 42 U.S.C. § 1395hh(a)(1).

As a means of correcting fraudulent billing, the Secretary of Health and Human Services, operating through the Centers for Medicare and Medicaid Services (CMS), employs private third parties, known as Recovery Audit Contractors (RACs), to review billing decisions. Second Am. Compl. ¶ 2. When a RAC determines that a particular patient should not have been admitted to a hospital to receive inpatient care, it will “claw back” the payments made to the hospital. Id . Decisions by RACs are subject to multiple layers of administrative review: a provider can ask for a determination of a RAC's findings by a Medicare Administrative Processor (MAC); can then seek reconsideration from a Qualified Independent Contractor (QIC), including an independent record review by a panel of healthcare professionals; can receive review of the QIC action by an Administrative Law Judge (ALJ); and can finally appeal the ALJ decision to the Departmental Appeals Board Medicare Appeals Council (DAB). Id . ¶ 50. “A decision of the Departmental Appeals Board constitutes a final agency action and is subject to judicial review.” 42 U.S.C. § 1395ff(f)(2)(A)(iv).

Plaintiffs allege that, prior to March, 2013, CMS had indicated that Part B compensation was not available for services provided on an inpatient basis where a RAC had clawed back Part A reimbursement because inpatient treatment was not appropriate, except for certain ancillary services. Second Am. Compl. ¶¶ 46–48. At the times relevant to the claims in this action, the Medicare Benefits Policy Manual stated, in Chapter 6, § 10, “Payment may be made under Part B for ... medical and other health services listed below when furnished by a participating hospital (either directly or under arrangements) to an inpatient of the hospital, but only if payment for these services cannot be made under Part A.” Id . ¶ 48. The services “listed below” were limited to ancillary services like diagnostic tests, surgical dressings, splints and casts, outpatient physical therapy, and vaccines. Id .

Some hospitals appealed their Part A denials, and, in at least 16 cases between 2005 and 2012, the DAB concluded that a Part B payment was available to hospitals that provided reasonably and medically necessary services on an inpatient basis when the patient could have been treated in an outpatient setting.³ Id . ¶ 51. But many more hospitals did not seek Part B payment after a Part A denial.Id . ¶ 53. Plaintiffs are in the latter category. Plaintiffs are the American Hospital Association, a national organization representing and serving hospitals and healthcare systems and networks, as well as individual members; three individual hospitals; and two health care systems. Id. ¶¶ 14–19. Plaintiffs—and their constituent hospitals—were subject to Part A claw backs because of RAC determinations that the services should have been provided as outpatient care rather than inpatient care.⁴ Id . ¶¶ 69, 80, 93, 104, 117, 128–130. Only after filing this action did Plaintiffs begin to seek Part B payment for services denied Part A reimbursement. See Pls.' Second Supp. at 4–10. Among these claims, some were granted, some were denied, and others are still pending. See id .

B. Procedural History

On November 1, 2012, Plaintiffs filed suit in this Court, challenging CMS's purported “Payment Denial Policy.” See Second Am. Comp. ¶ 7; see generally Compl. One month later, on December 13, 2012, Plaintiffs filed their First Amended Complaint. See First Am. Compl. On March 13, 2013, CMS issued an interim policy to handle rebilling after Part A denials, CMS Ruling 1455–R, and issued a proposed rule to address such claims on a permanent basis. Second Am. Compl. ¶ 56; see also Medicare Program; Part B Inpatient Billing in Hospitals, 78 Fed.Reg. 16,632 (Mar. 18, 2013). Given the issuance of the proposed rule and the interim ruling by CMS, the Court granted the parties' Joint Motion to Amend the Schedule in Light of Recent Ruling by the Administrator of the Centers for Medicare and Medicaid Services. Plaintiffs filed a Second Amended Complaint on April 19, 2013. See Second Am. Compl. In response, on June 6, 2013, Defendant filed the motion to dismiss presently before the Court. See Def.'s Motion to Dismiss. On August 19, 2013, CMS issued a final rule, Medicare Program; Payment Policies Related to Patient Status, which supplanted Ruling 1455–R. 78 Fed.Reg. 50,496, 50,906 (Aug. 19, 2013).

At the Court's request, Plaintiffs and Defendant filed supplemental briefing, on October 28, 2013, on the effect of the Final Rule on these proceedings. See Pls.' Supp. Br.; Def.'s Supp. Br. To respond to additional questions from the Court regarding the potential mootness of Plaintiffs' claims and regarding the status of Plaintiffs' claims for payment, Plaintiffs filed supplemental briefing yet again on March 7, 2014, and Defendant filed a reply on March 21, 2014. See Pls.' Second Supp. Br.; Def.'s Second Reply. In light of the issuance of the Final Rule, Plaintiffs clarified that they are “challeng [ing] a policy—CMS's application of a time limit to rebill for Medicare Part B payment after a RAC denial—that CMS itself agrees was in place since before interim Ruling 1455–R, and remains in place after the final rule.” Pls.' Second Supp. Br. at 1. Plaintiffs specified “the broader challenges” in this action: “First, it is arbitrary to make hospitals submit ‘new’ Part B claims when they could instead amend or supplement their existing claims. Second, it is arbitrary to apply a waivable time limit to a circumstance where the agency knows the requirement cannot be met.” Id . at 3 (citations omitted). Finally, given that Count VI of Plaintiffs' Second Amended Complaint was based on Ruling 1455–R, Plaintiffs agreed to dismiss Count VI. See Pls.' Second Supp. Br. at 3 n.1.

II. LEGAL STANDARD

Defendant moves to dismiss Plaintiffs' actions pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing the Court lacks subject matter jurisdiction because none of the jurisdictional provisions on which Plaintiffs rely support jurisdiction in these circumstances.⁵ See Def.'s Mot. at 16–20, 24–30; Def.'s Supp. Br. at 2–3; see generally Def.'s Second Reply. “Federal courts are courts of limited jurisdiction” and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Id . To survive a motion to dismiss pursuant to Rule 12(b)(1), a plaintiff bears the burden of establishing that the Court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C.Cir.2007). In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted).

III. DISCUSSION

Plaintiffs argue that this Court has jurisdiction over this action by virtue of 42 U.S.C. § 405(g), the jurisdictional provision of the Medicare Act. In the alternative, Plaintiffs argue that there is federal question jurisdiction...