UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-10099

TEXAS CLINICAL LABS, INC., a Texas Corporation; TEXAS CLINICAL LABS-GULF DIVISION, INC., a Texas Corporation,

Plaintiffs-Appellants,

VERSUS

KENNETH S. APFEL, Secretary, U.S. Dept. of Health & Human Services,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas 3:96-CV-571-R

December 22, 2000

Before JOLLY and DAVIS, Circuit Judges and RESTANI*, Judge.

PER CURIAM:**

The appellant, Clinical Laboratories, challenges as arbitrary

and capricious a formula approved by the Secretary to compute

* Judge, U.S. Court of International Trade, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. reimbursement for certain health care providers for travel

expenses. Appellants challenge two elements of the agency’s travel

allowance formula: (l) the 35 mile per hour average used as the

standard speed for delivery of services, and (2) the median cost

per specimen.

Based upon our review of the record and considering the briefs

and argument of counsel, we are satisfied that the Secretary’s

conclusions with respect to this second element–the median cost per

specimen–is fully supported by the record and therefore is not

arbitrary or capricious. However, with respect to the first

element, the 35 mile per hour average speed, we are not satisfied

that the record supports this figure. From the briefs, it appears

that the Secretary relied on documents which were not made a part

of the record to support this figure. Because the record does not

provide a basis for the Secretary’s use of the 35 mile per hour

figure, we remand this case to the Secretary to give it an

opportunity to include in the administrative record those documents

it relied upon to support that decision and to provide a complete

explanation for this decision. We find appellant’s remaining

arguments unpersuasive.

Accordingly, we remand this case to the Secretary for further

proceedings consistent with this order.

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