United States Court of Appeals
June 20, 2011
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
Plaintiff - Appellant,
v. (D.C. No. 5:08-CV-04065-JAR-JPO)
KATHLEEN SEBELIUS, Secretary of
Health and Human Services,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, SEYMOUR, and O'BRIEN, Circuit Judges.
This is an appeal from the district court's order affirming the Provider
Reimbursement Review Board's ("PRRB") determination that it lacked
jurisdiction over Plaintiff-Appellant Stormont-Vail Regional Medical Center's
("Stormont-Vail") appeal from the decision of a fiscal intermediary regarding
Medicare reimbursement. In relevant part, the district court held that Stormont-
Vail conceded that the PRRB decision was correct. We have jurisdiction under
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
28 U.S.C. § 1291, and we affirm.
A. Medicare Reimbursement Scheme.
It goes without saying that this country's healthcare system, particularly
Medicaid and Medicare, are immensely complicated. The district court provided
a comprehensive overview of the Medicare reimbursement system, and we need
not repeat it here. See Stormont-Vail Reg'l Med. Ctr. v. Sebelius, 708 F. Supp.
2d 1178, 1180-82 (D. Kan. 2010). Suffice it to say that the federal government
reimburses hospitals that provide care to patients covered by Medicare. The
reimbursement rates are subject to certain adjustments. At issue in this case is the
Disproportionate Share Hospital adjustment (the "DSH adjustment") 1, an
adjustment for hospitals that provide care to a disproportionate number of low-
income patients. Aplt. Br. 4; 42 U.S.C. § 1395ww(d)(5)(F). The DSH adjustment
is determined in part by a factor referred to as the Medicaid Fraction.
The parties make extensive use of acronyms. Below is a summary of
acronyms used throughout this order and judgment.
APA Administrative Procedures Act
DHHS Department of Human Health and Services
DSH Adjustment Disproportionate Share Hospital Adjustment
EBUDs Eligible but Unpaid Days
FI Fiscal Intermediary
NPR Notice of Program Reimbursement
PRRB Provider Reimbursement Review Board
[End Page 2]
See Stormont-Vail, 708 F. Supp. 2d at 1180. The Medicaid Fraction is the
number of hospital patient days provided to patients who are eligible for
Medicaid""but not Medicare""benefits under a state-run Medicaid program,
divided by the total number of hospital patient days. See id. at 1181 (citing 42
U.S.C. § 1395ww(d)(5)(F)(vi)(II)).
During the relevant time period, the Kansas Medicaid program did not pay
hospitals for Medicaid-eligible patients if those patients' hospital stays were fully
paid from another source, such as a vehicle insurance policy. See id. at 1182. In
other words, hospitals in Kansas did not receive Medicaid payments for
all Medicaid-eligible patient days. We refer to these patient days as "eligible-but-
unpaid days," or "EBUDs."
Prior to 1997, federal regulations excluded EBUDs from the DSH
adjustment. Aplt. Br. 9 (citing Fiscal Year 1986 Changes to the Inpatient
Hospital Prospective Payment System, 51 Fed. Reg. 16,772, 16,777 (May 6,
1986)). However, that changed in 1997 when the Administrator of the Health
Care Financing Administration 2 issued a ruling ("Ruling 97-2") that required the
DSH""specifically, the Medicaid Fraction""to include all Medicaid-eligible
patient days, regardless of whether the hospital received payment from another
source. See II Aplt. App. 497-98. In other words, Ruling 97-2 required the DSH
In 2001, the Health Care Financing Administration became the Center for
Medicare and Medicaid Services. See Aplee. Br. 5 (citing Statement of
Organization, 66 Fed. Reg. 35437-03 (July 5, 2001)).
[End Page 3]
adjustment to include EBUDs.
A hospital's reimbursement, including the DSH adjustment, is determined
by a fiscal intermediary ("FI"), acting as the agent of the Secretary of the
Department of Human Health and Services ("DHHS"). See Stormont-Vail, 708 F.
Supp. 2d at 1181. A hospital can appeal the FI's final reimbursement decision,
referred to as the Notice of Program Reimbursement ("NPR"), to the PRRB. Id.
The PRRB has jurisdiction over an appeal if, inter alia, the hospital "is
dissatisfied with a final determination of the organization serving as its fiscal
intermediary . . . ." 42 U.S.C. § 1395oo(a); see Bethesda Hosp. Ass'n v. Bowen,
485 U.S. 399
, 403-04 (1988). During the time period at issue in this case, a
hospital could add new issues to a pending, jurisdictionally proper appeal at any
time prior to the PRRB hearing. See 42 C.F.R. § 405.1841(a)(1) (2000) ("Prior to
the commencement of the hearing proceedings, the provider may identify in
writing additional aspects of the intermediary's determination with which it is
dissatisfied and furnish any documentary evidence in support thereof.")
If the Secretary of the DHHS takes no action, a PRRB decision becomes
final within sixty days, after which hospitals can petition a federal district court
to review the PRRB's decision under the standards of the Administrative
Procedures Act ("APA"). See 42 U.S.C. § 1395oo(f)(1); see Little Co. of Mary
Hosp. v. Sebelius, 587 F.3d 849
, 853 (7th Cir. 2009), Marymount Hosp., Inc. v.
Shalala, 19 F.3d 658
, 661 (D.C. Cir. 1994).
[End Page 4]
B. Factual Background.
This case arises from Stormont-Vail's DSH adjustment for the 1994 fiscal
year. The DSH adjustment in the original NPR did not include EBUDs. II Aplt.
App. 519; see Aplt. Br. 17, Aplee. Br. 7. In January 1997, Stormont-Vail
appealed to the PRRB, seeking, inter alia, inclusion of EBUDs in the 1994 DSH
adjustment. II Aplt. App. 514-15, 517. After the appeal was filed, but before the
PRRB hearing, the Secretary issued Ruling 97-2.
In response to Ruling 97-2, the FI sent Stormont-Vail a letter that stated,
The above referenced [appeal] has been approved for a Partial
Administrative Resolution concerning the issue of Medicaid eligible
days as defined in HCFA Ruling No. 97-2.
Please advise the PRRB Board that you have agreed to this partial
administrative resolution and are dropping this portion of your facility's
II Aplt. App. 476.
Pursuant to this partial administrative resolution, the FI included 14,959
EBUDs in Stormont's 1994 DSH adjustment. It issued a revised NPR to that
effect on June 10, 1998. II Aplt. App. 479; see Stormont-Vail, 708 F. Supp. 2d at
1183. Stormont-Vail did not appeal the revised NPR.
On June 16, 2000, Stormont-Vail sought to add two new issues to its appeal
from the original 1994 NPR, which was still pending. II Aplt. App. 506.
Stormont-Vail contended that (1) the FI failed to include all EBUDs in the DSH
adjustment, and (2) the FI failed to include "general assistance" days in the DSH
[End Page 5]
adjustment. Id.; see Aplt. Br. 5 n.2, 18 n.8. Stormont-Vail represents in its
appellate brief that, after it added these two new issues to the appeal, it sought
information from Kansas ("Matching Data") regarding potential new EBUDs.
Aplt. Br. 18-19. However, Stormont-Vail does not indicate whether or when the
State of Kansas provided the Matching Data.
In March 2008, the PRRB held that it did not have jurisdiction over the new
issues because Stormont-Vail was not dissatisfied with the FI's decision. See II
Aplt. App. 465-68. Specifically, the PRRB held that Stormont-Vail was not
dissatisfied because, pursuant to the partial administrative resolution, it had
received all the relief it sought, namely inclusion of EBUDs in the DSH
adjustment. 3 Id. at 466-67. In other words, the PRRB held that the supposedly
"new" EBUDs issue was actually settled in the partial administrative resolution.
According to the PRRB, because Stormont-Vail had received the relief it
requested, it could not have been dissatisfied with the FI's decision, and the
PRRB therefore did not have jurisdiction over the issue. Id.
Stormont-Vail filed a complaint for judicial review of the PRRB's decision.
See I Aplt. App. 7. The district court held that the PRRB erred in with regard to
the general assistance days issue. See Stormont-Vail, 708 F. Supp. 2d at 1186.
The district court further held that Stormont-Vail, in the course of its argument
The PRRB also held that the general assistance days issue was included
in the partial administrative resolution. See II Aplt. App. at 466. That issue is
not presented on appeal.
[End Page 6]
regarding the general assistance days, had conceded that the new EBUDs issue
fell within the partial administrative resolution. Id. at 1190. According to the
court, given this concession, the PRRB correctly determined that it did not have
jurisdiction over that issue. Id. The district court's disposition concerning the
new EBUDs issue rested entirely upon Stormont-Vail's concessions. See id.
Stormont-Vail timely appealed. See II Aplt. App. 393.
When faced with an appeal from the district court's disposition of a party's
petition for review of an agency decision, we "afford no particular deference to
the district court's review of the agency's action; our review of the administrative
record pertaining to the challenged action is independent." Cherokee Nation of
Okla. v. Norton, 389 F.3d 1074
, 1078 (10th Cir. 2004) (internal quotation marks
and citations omitted); see Marymount Hosp., 19 F.3d at 661 ("We review the
[Provider Reimbursement] Board's decision without deference to the district
court's determination." (citation omitted)). However, as we made clear in Berna
v. Chater, 101 F.3d 631
, 632 (10th Cir. 1996), an appeal from the district court's
affirmance of an agency decision, "[t]he scope of our review . . . is limited to the
issues the claimant properly preserves in the district court and adequately presents
on appeal." We explained,
This court has on a number of recent occasions recognized that
[End Page 7]
waiver principles developed in other litigation contexts are equally
applicable to social security cases. Thus, waiver may result from the
disability claimant's failure to (1) raise issues before the magistrate
judge, Marshall v. Chater, 75 F.3d 1421
, 1426 (10th Cir. 1996), (2)
object adequately to the magistrate judge's recommendation, Soliz v.
Chater, 82 F.3d 373
, 375-76 (10th Cir. 1996), (3) preserve issues in
the district court as a general matter, Crow v. Shalala, 40 F.3d 323
324 (10th Cir. 1994), or (4) present issues properly to this court,
Murrell v. Shalala, 43 F.3d 1388
, 1389-90 (10th Cir. 1994).
Id. at 632-33 (quoting James v. Chater, 96 F.3d 1341
, 1344 (10 th Cir. 1996)
(brackets and quotation marks omitted)). We further pointed out that "Marshall,
Soliz, and Crow all impose waiver consequences for procedural omissions in the
district court, illustrating that the administrative origin of a social security appeal
does not negate the legal effect of interim proceedings conducted in district
court." Id. at 634.
In this case, the district court was presented with two issues: (1) whether
the PRRB erred in determining that it did not have jurisdiction over the "general
assistance days" issue that Stormont-Vail attempted to add to its initial appeal,
and (2) whether the PRRB erred in determining that it did not have jurisdiction
over the "new EBUDs" issue. See I Aplt. App. 24; Stormont-Vail, 708 F. Supp.
2d at 1183; Aplt. Br. 5 n.3. Stormont-Vail appeals only the district court's
decision on the second issue.
As we noted supra, the sole rationale for the court's disposition of the
second issue was Stormont-Vail's apparent concession in its pleadings before the
district court. See Stormont-Vail, 708 F. Supp. 2d at 1190.
[End Page 8]
On appeal, the majority of Stormont-Vail's arguments address the merits of
the PRRB decision. See Aplt. Br. 20-24. Specifically, Stormont-Vail argues that
the PRRB erred in determining that the partial administrative resolution
encompassed the new EBUDs issue because (1) the partial resolution did not
constitute a binding settlement agreement, Aplt. Br. 28; (2) the partial resolution
did not release any claims, id. at 29; (3) the PRRB's decision was inconsistent
with its treatment of the same issue in 1995, id. at 31; (4) it had the right to add
new issues to its pending appeal, so long as the prior appeal was proper, id. at 37-
38; and (5) the PRRB's decision frustrated the national policy of including all
EBUDs in the DSH adjustment, id. at 45.
Stormont-Vail's opening brief does contain a section specifically
challenging the district courts' decision. See id. at 47. However, Stormont-Vail
does not so much as mention the district court's holding that it had conceded the
new EBUDs issue. See id. at 47-49. Most importantly, Stormont-Vail does not
argue that the district court erred in holding that it had conceded the issue below,
and it does not attempt to explain how the language quoted by the district court
did not constitute a binding concession. See id.
In contrast, the Secretary's brief specifically notes that the district court
decided the new EBUDs issue solely on concession grounds, and argues that
Stormont-Vail failed to challenge this holding on appeal. Aplee. Br. 12-14, 18-
19. Yet, in its reply brief Stormont-Vail does not even acknowledge, much less
[End Page 9]
address, the Secretary's arguments on this point.
In sum, Stormont-Vail fails to challenge the district court's holding
regarding the very issue it seeks to appeal. The district court held that Stormont-
Vail had conceded the new EBUDs issue, and Stormont-Vail does not argue that
the court erred in so holding. Nor could it do so. Although Stormont-Vail
initially challenged in district court the PRRB's decision on the ground it argues
to us, it effectively withdrew that challenged when it conceded the PRRB
correctly decided it lacked jurisdiction because the issue had been previously
settled. Having thereby failed to preserve its scope-of-the-settlement argument in
the district court, Stormont-Vail cannot now contest the scope of the settlement
on appeal to us. See Crow v. Shalala, 40 F.3d 323
, 324 (10th Cir. 1994) ("Absent
compelling reasons, we do not consider arguments that were not presented to the
district court." (citation omitted)). Accordingly, Stormont-Vail has waived any
argument that the PRRB erred when it decided it lacked jurisdiction over the
Medicare reimbursement issue. Under these circumstances, we cannot provide
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr.
[End Page 10]