UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EMPIRE HEALTH FOUNDATION, et al.,

Plaintiffs, v. Civil Action No. 20-2149 (JEB)

XAVIER BECERRA, Secretary, U.S. Department of Health and Human Services,

Defendant.

MEMORANDUM OPINION

In this Medicare-reimbursement case, Plaintiffs Empire Health Foundation and hospitals

it owns seek payment for certain services the hospitals provided to Medicare patients over a

decade ago. Following an administrative rollercoaster of reimbursement appeals and remands,

Defendant Department of Health and Human Services dismissed the latest iteration of Plaintiffs’

challenge to the agency’s reimbursement formula. Unhappy with that decision, Plaintiffs

brought this suit, asking the Court to find the agency’s actions improper. After the completion of

summary-judgment briefing, Defendant now proposes an alternative: remand this case to allow

the agency to reevaluate Plaintiffs’ reimbursement sums in light of a forthcoming rule addressing

the question at the heart of their challenges. Although Plaintiffs oppose this outcome, the Court

agrees with Defendant that this is the most efficient course; it will thus grant the Motion to

Remand and return this case to the agency.

1 I. Background

Empire Health Foundation and two hospitals it owns, Valley Hospital Medical Center

and Deaconess Medical Center, seek reimbursement for services those hospitals provided to

Medicare patients. Plaintiffs’ journey to obtain reimbursement has been long and winding, and

the Court provides a truncated version here. Interested readers may consult this Court’s earlier

Opinion in Empire Health Foundation v. Burwell (Empire I),

(D.D.C.

2016), for a more detailed account of the procedural history of this case and the Medicare

reimbursement scheme it involves.

The gist of it is this: The Centers for Medicare and Medicaid Services (CMS)

administers reimbursements for providers who treat Medicare patients.

at 263–64. Private

companies enlisted by CMS (known as “Medicare Administrative Contractors” or “MACs”)

calculate the amount of reimbursement each provider is due through a complex equation that is

“roughly pegged to the number of patients discharged.”

(emphasis omitted). They

inform providers of their reimbursement sum in a document called a “Notice of Program

Reimbursement” (NPR).

Some NPRs include certain adjustments to the baseline formula.

Relevant here, Valley and Deaconess received “‘disproportionate share hospital’ or ‘DSH’

adjustment[s],” which are “a bump-up for hospitals that ‘serve[] a significantly disproportionate

number of low-income patients.’”

(quoting 42 U.S.C. § 1395ww(d)(5)(F)(i)(I)). DSH

adjustments are calculated by adding two fractions that determine the hospital’s disproportionate

patient percentage for a fiscal period. See ECF No. 16-1 (Amended Complaint), ¶¶ 9–11. One

of those fractions — the Medicare/SSI fraction — is at issue here. That fraction, which is

calculated by CMS, is determined by dividing the time spent caring for patients entitled to

benefits under both Medicare Part A and the Supplemental Security Income (SSI) program by

2 the time spent caring for patients who are entitled to benefits under only Medicare Part A. Id.,

¶¶ 10, 15; see also Azar v. Allina Health Services (Allina II),

(2019); 42

U.S.C. § 1395ww(d)(5)(F)(vi)(I).

Providers that are unhappy with their reimbursement sum may appeal their NPR to the

Provider Reimbursement Review Board (PRRB), which is authorized to affirm or alter the

award. See Am. Compl., ¶¶ 16–18 (citing 42 U.S.C. § 1395oo(a)). The PRRB’s determination

is subject to further review by the Secretary of Health and Human Services. Id., ¶ 18; see also

Empire I,

. Once the Secretary has issued her decision or declined to

review a decision of the PRRB, a provider has “the right to obtain judicial review.” Empire I,

(quoting 42 U.S.C. § 1395oo(f)(1)); see also

.

Dissatisfied with the NPRs they received for the 2006 and 2007 years, respectively,

Valley Hospital and Deaconess Medical Center initiated this reimbursement-appeal process with

the PRRB in 2009. See Am. Compl., ¶ 19. Those appeals challenged the agency’s inclusion of

time spent treating Medicare Part C enrollees (Part-C days) in the Medicare/SSI fraction, which

the agency had done under the theory that Part-C patients are also entitled to benefits under Part

A.

The PRRB remanded those appeals to the MACs, and Plaintiffs challenged that decision

by filing suit in this Court.

. Finding that Plaintiffs’ challenges were premature because

the remand process had not yet been completed, this Court dismissed the case in September

2016. Empire I,

.

When Plaintiffs received revised NPRs in March 2017, they again appealed to the PRRB,

this time also seeking expedited judicial review. See Am. Compl., ¶ 23. In their appeal, the

providers again challenged the treatment of Part-C days in the Medicare/SSI fraction. See ECF

No. 36 (Def. Reply) at 4. The PRRB held that it lacked jurisdiction to review the revised NPRs

3 because the revisions had not included an adjustment to the Medicare/SSI fraction, and

regulations prohibit consideration of any matter that has not been specifically revised. See Am.

Compl., ¶ 24; ECF No. 16-6 (PRRB Decision in 17-0555GC) at 8–9;

(b)(2). Plaintiffs filed another suit in this Court to vacate that decision and to order

the PRRB to reinstate its appeal from the initial NPRs. See Empire Health Foundation v. Azar

(Empire II), No. 19-1692. Not long thereafter, the parties filed a Joint Motion to Remand the

case to the Secretary, and this Court granted the Motion and signed their Proposed Order in

October 2019. See ECF No. 35-1 (Empire II Motion for Remand) at 7–8 (Empire II Remand

Order); see also No. 19-1692, Minute Order of Oct. 22, 2019; Am. Compl., ¶¶ 25–28. The

PRRB has since reopened the case and issued a request for information to which the providers

and the MAC have responded. See ECF Nos. 35-2 (MAC Response); 35-3 (Providers’

Response). No final decision has yet been rendered.

Plaintiffs’ challenge to the inclusion of Part-C days in the Medicare/SSI fraction was not

original. That same challenge appeared in a congeries of suits, and the Supreme Court

confronted the issue in 2019. See Allina II, 139 S. Ct. at 1809–10. In Allina II, the Court held

that CMS could not implement a policy of including Part-C days in the Medicare/SSI fraction

without going through the notice-and-comment rulemaking process.

. It offered no

view on the merits of whether Part-C days should be included in the fraction. The agency

responded to this decision in two ways: first, CMS issued a proposed rule stating that Part-C

days would be included in the Medicare/SSI fraction for fiscal years before 2013, and, second,

CMS issued a ruling (CMS Ruling 1739-R) divesting the PRRB of jurisdiction over NPR appeals

from before 2013 that raise the Part-C-days question until the issuance of the forthcoming final

rule. See ECF No. 29 (Motion to Remand), ¶¶ 9–10; Medicare Program; Treatment of Medicare

4 Part C Days in the Calculation of a Hospital’s Medicare Disproportionate Patient Percentage,

-01 (Aug. 6, 2020) (proposed rule); ECF No. 16-12 (CMS Ruling 1739-R). The

Secretary also sought to consolidate ongoing lawsuits that raised the same issue, and 93 of them

— including Deaconess’s 2007 appeal of its initial NPR — were consolidated before Judge Amy

Berman Jackson. See In re: Allina II, Misc. No. 19‐190 (D.D.C.). Judge Jackson then remanded

many of these lawsuits — namely, all those that specifically challenged the inclusion of the Part-

C days as improper because of the agency’s failure to undertake notice-and-comment

rulemaking.

ECF No. 74 (Remand Order). Deaconess’s 2007 initial-NPR appeal was

among those remanded.

ECF No. 74-1 (Appendix of Remanded Cases) at 3, item 79.

In the midst of this, Plaintiffs asked CMS to realign their Medicare/SSI fractions to the

hospitals’ cost year (i.e., calendar-year reporting periods), rather than the federal fiscal years to

which they had previously been aligned. See Am. Compl., ¶ 30. CMS granted this request, and

Plaintiffs received adjusted NPRs on December 7, 2018.

Like those before them, these

realigned NPRs included Part-C days in the Medicare/SSI fraction.

¶¶ 31–32. Plaintiffs thus

appealed to the PRRB once more.

¶¶ 32–33. Once more, the Board dismissed the appeal,

finding that “it [did] not have jurisdiction over the DSH Part C Days issue from the revised

NPRs” because “the specific issue[] was not adjusted as part of the revised NPRs.” ECF No. 34-

1 at ECF pp. 4–7 (PRRB Decision in Case No. 19-1983GC) at ECF p. 5. Although the realigned

NPRs differed from those the providers had previously received, “CMS [did] not utilize a new or

different data match process when it issue[d] a realigned SSI percentage – all of the underlying

data remain[ed] the same, it is simply that a different time period [was] used.”

at ECF pp. 4–

5 (emphasis in original). The same regulations that prohibited review of the revised

5 Medicare/SSI fractions in PRRB appeal No. 17-0555GC thus barred review in this case, No. 19-

1983GC. See

(b)(2).

Unhappy with the PRRB’s dismissal of their appeal, Plaintiffs filed this action in August

of 2020, see ECF No. 1 (Complaint), and their Amended Complaint that December. Plaintiffs

allege four counts: 1) the PRRB’s Decision in Case No. 19-1983GC violated this Court’s remand

Order in Empire II; 2) the PRRB has unreasonably delayed resolving Plaintiffs’ appeals, in

violation of

(1); 3) the PRRB incorrectly held that it lacked jurisdiction over the

appeal of Plaintiffs’ realigned NPRs in Case No. 19-1983GC; and 4) CMS Ruling 1739-R is

invalid. See Am. Compl., ¶¶ 37–54. Waiting for some reason until after both sides had

completed dispositive briefing, Defendant filed a Motion for a voluntary remand of this case to

the Secretary on November 19, 2021. See ECF No. 29 (Motion to Remand). Plaintiffs opposed,

see ECF No. 35 (Pl. Opp.), asking the Court to retain the case and decide the summary-judgment

dispute.

II. Legal Standard

Courts have “broad discretion to grant or deny an agency’s motion to remand.” Utility

Solid Waste Activities Group v. EPA,

(D.C. Cir. 2018); see also Code v.

McHugh,

(D.D.C. 2015) (“The decision whether to grant an agency’s

request to remand is left to the discretion of the court.”). That said, courts will “generally grant

an agency’s motion . . . so long as ‘the agency intends to take further action with respect to the

original agency decision on review.’” Utility Solid Waste Activities Group,

(quoting Limnia, Inc. v. U.S. Department of Energy,

(D.C. Cir. 2017)). The

rationale for this approach is clear: courts “prefer[] to allow agencies to cure their own mistakes

rather than wast[e] the courts’ and the parties’ resources reviewing a record that both sides

6 acknowledge to be incorrect or incomplete.” Ethyl Corp. v. Browner,

(D.C.

Cir. 1993); accord FBME Bank Ltd. v Lew,

(D.D.C. 2015). For this

reason, “[v]oluntary remand is typically appropriate (i) when new evidence becomes available

after an agency’s original decision was rendered, or (ii) where intervening events outside of the

agency’s control may affect the validity of an agency’s actions.” FBME Bank Ltd.,

(internal citations and quotation marks omitted).

These are not the only circumstances, however, in which a voluntary remand is

warranted. “Even in the absence of new evidence or an intervening event, . . . courts retain the

discretion to remand an agency decision when an agency has raised ‘substantial and legitimate’

concerns in support of remand.”

(quoting Carpenters Industrial Council v. Salazar,

(D.D.C. 2010)). Two factors constrain this discretion. First, the Court will

not grant an agency request that “appears to be frivolous or made in bad faith.” Utility Solid

Waste Activities Group,

. Second, courts should “consider whether remand

would unduly prejudice the non-moving party.” Id.; see also FBME Bank Ltd.,

(similar).

III. Analysis

The Secretary moves for a voluntary remand to allow him to re-examine Plaintiffs’

appeals in light of Allina II and its aftermath. See Mot. to Remand at 1. All of Plaintiffs’

challenges, HHS asserts, are aimed at obtaining an answer to whether Part-C days are properly

included in the Medicare/SSI fraction, and so remand is the most efficient way forward. Id.,

¶¶ 1, 13–14; see also Def. Repl. at 3–4. Plaintiffs mount a litany of protests to such a remand

and alternatively ask the Court to retain jurisdiction over this case should it decide a remand is

appropriate. See Pl. Opp. at 1–25.

7 As a preliminary matter, the Court rejects Plaintiffs’ contention that the standards

applicable to modifying an order — rather than those applicable to a motion for remand —

should govern this case. See Pl. Opp. at 1–5; ECF No. 37-1 (Pl. Surreply) at 4–7. Their

argument is based on their belief that a remand here would “significant[ly] alter[]” the remand

Order this Court approved in Empire II. See Pl. Opp. at 3. That belief is mistaken. The Order in

Empire II remanded the Part-C claims that “were raised in Provider Reimbursement Review

Board (‘PRRB’) group appeal number 17-0555GC.” Case No. 19-1692, ECF No. 12-1 (Empire

II Remand Order). As discussed earlier, that appeal involved Plaintiffs’ revised NPRs that were

aligned to federal fiscal years, not the NPRs that had been realigned to the hospitals’ cost years.

It also predated the PRRB decision on appeal here: appeal number 19-1983GC. Id., Minute

Order of October 22, 2019 (granting Empire II motion to remand); PRRB Decision in Case No.

19-1983GC (June 10, 2020). The Empire II remand Order thus does not govern the appeal

presently before the Court, and so a remand here would not modify it.

Under the standards that govern motions to remand, this Court has “broad discretion to

grant or deny an agency’s motion.” Utility Solid Waste Activities Group,

. The

agency has explained that it seeks a remand in order to reconsider the Medicare/SSI fractions in

light of the forthcoming rule regarding Part-C days — a path it believes will prevent it from

making the same mistake that led to reversal in Allina II. See Def. Repl. at 3, 5–6. Even if the

Allina II decision does not govern this case and require a remand, as Plaintiffs contend, see Pl.

Opp. at 5–9, this seems a prudent path, since any decision of the PRRB on remand following a

disposition of this case in Plaintiffs’ favor would still be subject to review of the Secretary, who

presumably would follow the methodology established in the forthcoming Rule. See Def. Repl.

at 5–6.

8 The Court is persuaded, furthermore, that a remand will “preserve[] scarce judicial

resources by allowing [the] agenc[y] ‘to cure [its] own mistakes.’” Carpenters Industrial

Council,

(granting voluntary remand where change in law rendered

previous agency decision suspect). Plaintiffs object that the Court cannot properly remand this

case because the question of whether Part-C days are CORRECTLY included in the

Medicare/SSI fraction is not before it. See Pl. Opp. at 12–15. While it is true that none of

Plaintiffs’ claims directly asks this Court to address the Part-C question, the claims all

“redound[] to [an] administrative challenge[] that their DSH adjustments were too low because

the Secretary wrongly interpreted the DSH statute by including Part C patient days in the

Medicare/SSI fraction.” Def. Repl. at 3–4. In other words, each of Plaintiffs’ procedural

challenges is merely an attempt to expedite a recalculation of their realigned NPRs that omits the

Part-C days from the Medicare/SSI fraction. The agency’s request to reevaluate the treatment of

these Part-C days thus indicates an “intention to reconsider, re-review, or modify the original

agency decision that is the subject of the legal challenge,” Limnia,

, even if the

Part-C question was not directly raised before this Court. Defendants have, therefore, “raised

‘substantial and legitimate’ concerns in support of remand.” Carpenters Industrial Council,

(quoting Sierra Club v. Antwerp,

(D.D.C. 2008)).

Remand is appropriate, then, unless “the agency’s request appears to be frivolous or

made in bad faith” or “remand would unduly prejudice the non-moving party.” Utility Solid

Waste Activities Group,

(citing FBME Bank Ltd.,

, and

SKF USA Inc. v. United States,

, 1029 (Fed. Cir. 2001)). As to the first condition,

the Court finds no evidence of bad faith or frivolity. To the extent that Plaintiffs accuse

Defendant’s remand Motion of being pretext for dismissing this case, see Pl. Opp. at 10–12, the

9 Court is not convinced. Contrary to their suggestion, HHS nowhere requests a dismissal, and

this scenario bears little resemblance to the one in Limnia, where remand would have left the

Plaintiffs with only the option of restarting their agency challenge from the beginning. See 857

F.3d at 387–88 (remand request was impermissible attempt to dismiss case where agency

requested remand not to reconsider license application but to review any new application

plaintiff submitted). Likewise, the Court has no reason to think this remand is frivolous, as the

Secretary has stated his intention to “reconsider” the question at the heart of Plaintiffs’

challenges. See Motion to Remand at 7.

Nor would this remand cause Plaintiffs undue prejudice. See Utility Solid Waste

Activities Group,

. In fact, as Defendant points out, “Granting the Secretary a

voluntary remand will merely put Plaintiffs in the materially same position as if the Court were

to grant them summary judgment” since the relief to which they would be entitled if successful

on each of their claims is a remand to the agency. See Def. Repl. at 1; Banner Heart Hospital v.

Burwell,

(D.D.C. 2016) (finding remand was only appropriate remedy

after setting aside agency action). Plaintiffs may be correct that resolution will not come anytime

soon, but they face a potentially lengthy administrative process whether their claims are returned

to the agency now or at the end of litigation in this Court. See Clark v. Perdue, No. 19-394,

, at * 3 (D.D.C. June 13, 2019) (finding remand proper where it was same relief to

which plaintiff would have been entitled after merits resolution despite plaintiff’s objection that

remand would delay resolution). Faster resolution might be had if this Court were to conclude

that Defendant was entitled to judgment on the merits, but that is surely not a preferable outcome

for Plaintiffs.

10 They also argue that, in addition to delaying resolution of their claims, remand will

prejudice them by creating “jurisdictional uncertainties as to whether and how Plaintiffs will be

able to obtain administrative and judicial review of their claims after the remand is completed.”

Pl. Opp. at 18–19. Defendants have clarified, however, that the agency’s reopening regulations

— which led to dismissal on jurisdictional grounds of the prior PRRB appeals — would not

apply to these claims on remand. See Def. Repl. at 8–10. Rather, “[t]he DSH payment

adjustments for Part C patient days that will be calculated under the forthcoming rule will be new

determinations with statutory appeal rights,” even if the NPRs are not changed.

at 10 (citing

42 U.S.C. § 1395oo(a)(3), (f)). The prejudice Plaintiffs fear, then, will not come to pass.

The Court therefore concludes that remand is appropriate. See American Wild Horse

Preservation Campaign v. Salazar,

(D.D.C. 2012) (“[A]n agency’s motion

to remand for reconsideration of its own decision is usually granted.”) (citation omitted).

* * *

Before returning this appeal to the agency, the Court last addresses Plaintiffs’ request that

it retain jurisdiction and “‘an active supervisory role’ during the period of remand.” Pl. Opp. at

24–25 (citing Clark,

, at *4). The Court “has the discretion to retain

jurisdiction over a case pending completion of a remand,” but exercise of that discretion is

“typically reserved for cases alleging unreasonable delay of agency action or failure to comply

with a statutory deadline, or for cases involving a history of agency noncompliance with court

orders or resistance to the fulfillment of legal duties.” Baystate Medical Center v. Leavitt,

(D.D.C. 2008) (citing Cobell v. Norton,

(D.C. Cir. 2001)).

Although this case does involve a claim of unreasonable delay, the Court does not find that it

constitutes one of the rare cases in which deviation from the “norm [] to vacate agency action . . .

11 and remand for further proceedings consistent with the judicial decision, without retaining

oversight over the remand proceedings” is warranted.

In particular, the Court notes that

there is no evidence of noncompliance with court orders or attempts to avoid legal duties, and so

the agency is entitled to the presumption that it will discharge its duties in good faith. See CTIA-

The Wireless Association v. FCC,

(D.C. Cir. 2008); see also Baystate Medical

Center,

n.5 (“The Court does not consider the years-long administrative

litigation before the Provider Reimbursement Review Board and the CMS Administrator to

indicate recalcitrance and resistance to fulfilling legal duties, but instead to reflect the kind of

hard-fought litigation that regularly occurs in cases involving programmatic relief and multi-

million dollar payments.”). This Court, accordingly, will not retain jurisdiction over this case on

remand.

IV. Conclusion

For the foregoing reasons, Defendant’s Motion for Remand will be granted. A separate

Order so stating shall issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: February 8, 2022

12