Appeal from dismissal of complaint to enjoin regulation establishing timing of reimbursement of Medicare payments to hospitals by United States District Court for the Southern District of New York, Charles M. Metzner, Judge. Held, timing of payments committed to agency discretion under 5 U.S.C. § 701(a)(2) and not subject to judicial review.
Feinberg, Oakes and Van Graafeiland, Circuit Judges.
This appeal concerns a change in the HEW regulations affecting the method by which hospitals are reimbursed for the furnishing of services to Medicare beneficiaries. Appellants sued for declaratory and injunctive relief seeking to review the administrative regulation 20 C.F.R. § 405.454(j),*fn1 issued under 42 U.S.C. § 1395g*fn2 by the Secretary of Health, Education and Welfare (HEW), promulgated after preliminary notice in 39 Fed. Reg. 2011 on July 16, 1975, 40 Fed. Reg. 29815. The United States District Court for the Southern District of New York, Charles M. Metzner, Judge, dismissed the complaint on the ground that the challenged regulation was not subject to judicial review.*fn3 We affirm the judgment.
When Medicare first became operational in 1966, the interim payment system adopted was simply the conventional method by which health care facilities had always been reimbursed by health insurance programs. The hospitals, or "providers," submitted a billing form on which the services and charges to the patient were itemized to a Medicare intermediary, such as Blue Cross/Blue Shield of New York,*fn4 which processed the bills and sent back payments to the hospitals. But in 1968, because of delays in processing a method of interim reimbursement was made available to hospitals for inpatient services only. This permitted payments to be disbursed prior to the receipt of billing forms. Based upon estimated cost projections level amounts of payment were disbursed at set intervals, subject to adjustment at the end of a given period of time, usually a fiscal year, thus increasing the predictability of cash flow to hospitals. This system was known as Periodic Interim Payments, or PIP, and it provided for payments on a weekly or biweekly regular basis, although most hospitals elected to take weekly payments. Of about 6,700 hospitals participating in the Medicare program, between January, 1968, and January 1973, only about 800 elected to use the method, the others remaining on the conventional system of reimbursement.
The new PIP system in the regulation under challenge evidently was proposed after a determination that the old PIP method was resulting in overly generous treatment of the hospitals or at least an unnecessarily "liberal" use of the Federal Hospital Insurance Trust Fund, 42 U.S.C. § 1395i, resulting in the loss of interest on the trust fund. Under the old PIP system there was only an average three-and-a-half day lag between the delivery of services to patients and disbursement of payments. Under new PIP, the payments cover a two-week rather than a one-week period and are disbursed no earlier than two weeks after the end of the service period, see note 1 supra, resulting in an average 21-day lag between treatment and payment. The new PIP system was made available to hospitals in September, 1973, and in January, 1974, the challenged regulation was proposed to require hospitals on old PIP to convert to new PIP. The regulation was promulgated in July, 1975, with a final implementation date of May 31, 1976, and all hospitals under the old PIP system except appellants have since December, 1975, both required gradually to convert to new PIP.
In November, 1975, appellants Greater New York Hospital Association and Peninsula Hospital Center, on behalf of themselves and members of the Association on the old PIP system, together with 25 intervenor hospitals, sued to enjoin the new PIP regulation as arbitrary, capricious, and an abuse of discretion. At the consolidated hearing on the preliminary injunction and the trial on the merits, appellants presented evidence that the required conversion from old PIP to new PIP will result in a big cash flow problem for them, especially since they are located in a large urban center which necessitates a lot of work on a charity basis. Because some of the appellant hospitals already have large loans outstanding and lack additional collateral, they urge that they will be unable to borrow more money and will either have to delay payment of bills to their vendors and thereby have to pay higher prices for their goods or, if they are so fortunate as to be able to borrow to make up for the lost cash flow, will have to incur additional interest expenses. These effects seem to follow necessarily from the time lag under the new PIP system and they are the mirror reflection of the interest earnings that the Federal Hospital Insurance Trust Fund will be able to make by virtue of the time lag.*fn5
We agree with the district court, however, that in stating that each "provider of services shall be paid, at such time or times as the Secretary believes appropriate (but not less often than monthly)," the statute, 42 U.S.C. § 1395g, note 2 supra, commits the timing of Medicare payment dates to agency discretion by law within the meaning of 5 U.S.C. § 701(a)(2).*fn6 Therefore the new PIP regulation is not subject to judicial review under the Administrative Procedure Act (APA). We believe that this decision follows a correct application of the standards established by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). This is one of what must be a very limited number of cases where "statutes are drawn in such broad terms that in a given case there is no law to apply." S. Rep. No. 752, 79th Cong., 1st Sess. 26 (1945), quoted in Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 410. Unlike the statute held reviewable in Overton Park, the Medicare Act sets forth no factors that the Secretary must consider or abide by in determining the timing of payments. The language "as the Secretary believes appropriate" is as open-ended as it could conceivably be, and is limited only by the condition in the parenthetical that payments be made not less often than monthly. Because no other standards are set forth according to which the Secretary must exercise his discretion, a court has quite literally no indicia by which it may evaluate that exercise and hence no power of review under § 701(a)(2).
The holding of the district court is further supported by East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972), and our own Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969). In East Oakland-Fruitvale the decision of the Director of the Office of Economic Opportunity in determining whether a program vetoed by a state governor was "fully consistent with the provisions and in furtherance of the purposes" of the Economic Opportunity Act, 42 U.S.C. § 2834, was held nonreviewable. East Oakland-Fruitvale, supra, 471 F.2d at 528, 533. There in effect the Director simply had to determine in evaluating the program whether the particular project was wise or desirable as a means to further the act, a standard so general that a court could not practicably make any evaluation of the propriety of the determination.*fn7 In Kletschka v. Driver, decisions of the Veterans Administration concerning the awarding of research grants were held unreviewable as committed to agency discretion because of the unfeasibility of review by courts lacking a necessary considerable scientific and medical expertise. There is a point at which the nature of administrative decisions is such that they should be treated as committed to agency discretion because they are simply not subject to judicial evaluation. See K. Davis, Administrative Law Treatise § 28.08, at 947 (1970 Supp.); Saferstein, Nonreviewability: A Functional Analysis of "Committed to Agency Discretion," 82 Harv. L. Rev. 367 (1968).
Kingsbrook Jewish Medical Center v. Richardson, 486 F.2d 663 (2d Cir. 1973), and Aquavella v. Richardson, 437 F.2d 397 (2d Cir. 1971), relied on by intervenor appellants, are inapposite, in that the former involved substantive determinations as to whether a specific reimbursement under the Medicare program was correct and the latter whether the Secretary could suspend Medicare payments pending an audit to determine whether payments sought were proper or overpayments had been made. Neither case involves the timing of interim Medicare payments under 42 U.S.C. § 1395g. Kingsbrook, moreover, dealt expressly with the question whether judicial review was precluded by another statute in the Medicare Act, 42 U.S.C. § 405(h), and thus was only concerned on appeal with reviewability under § 701(a)(1) of the APA, not § 701(a) (2) as we are here.
It is true that there is dictum in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 156-57, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970), that indicates that both clauses (1) and (2) of 5 U.S.C. § 701(a) should be read restrictively to require that a statute give "clear and convincing evidence of an intent to withhold" judicial review. Data Processing, supra, 397 U.S. at 156. But as Professor Davis has pointed out, supra, there are a number of decisions, including Kletschka v. Driver, supra, in which agency action has been held unreviewable in the absence of a clear and convincing showing of legislative intent. K. Davis, supra, § 28.08, at 946-47 (1970 Supp.). He states with his customary authoritativeness that "[a] flat assertion that the dictum in Data Processing is not the law is not too strong." Id. at 947. At the very least the distinction was elucidated in Citizens to Preserve Overton Park, Inc. v. Volpe, supra. The Court analyzed the statute in question under both § 701(a)(1) and § 701(a)(2) and said that with respect to the former there must be either a specific statutory prohibition of review or a "showing of clear and convincing evidence of a legislative intent to restrict access to judicial review." Overton Park, supra, 401 U.S. at 410. The Court then stated with respect to the latter, which concerns us here, that agency action is committed to agency discretion where "statutes are drawn in such broad terms that in a given case there is no law to apply." Id. Given this delineation of the different tests to be applied under § 701(a)(1) and § 701(a)(2), we decline to accept the transportation of the requirement of "clear and convincing evidence of . . . legislative intent" to restrict review from § 701(a)(1) into § 701(a)(2), as was done in dicta in Hein v. Burns, 402 F. Supp. 398, 403 (S.D. Iowa) (three-judge court), rev'd, 429 U.S. 288, 97 S. Ct. 549, 50 L. Ed. 2d 485 (1977), citing Rockbridge v. Lincoln, 449 F.2d 567, 570 (9th Cir. 1971).
No different result in this case is dictated by Barlow v. Collins, 397 U.S. 159, 25 L. Ed. 2d 192, 90 S. Ct. 832 (1970), where rulemaking authority of the Secretary of Agriculture under 16 U.S.C. § 590d(3) was held reviewable under § 701(a)(2) since there the charge was made that the Secretary's definition of the phrase "making a crop" was in conflict with the definition of the statutory term as set forth in the legislative history of the Food and Agriculture Act.*fn8 Our case involves the challenge to the Secretary's exercise of authority in an area where the statute has granted him broad and undefined discretion with what we perceive to be no "law to apply" existing either in § 1395g itself, in its legislative history or in other statutes.
Appellants contend that there is "law to apply" in this case in that the validity of the regulation must be evaluated in the light of provisions of the Medicare Act and the regulations promulgated under it requiring that hospitals be reimbursed the reasonable cost of providing services and prohibiting the shifting of the costs of Medicare beneficiaries to non-Medicare patients. See 42 U.S.C. §§ 1395f(b), 1395x(v)(1)(A).*fn9 For purposes of determining this question, we do have the duty of and jurisdiction to review under 28 U.S.C. § 1361, but this does not mean that we may also review the regulation on the basis of whether or not it is arbitrary, capricious or an abuse of discretion. On the contrary, "to the extent" the timing of reimbursement payments is "committed to agency discretion" it is unreviewable. If indeed the timing of reimbursement were in violation of a statutory right it would, of course, be reviewable and to that extent the court below had and we have jurisdiction. See Aquavella v. Richardson, supra, 437 F.2d at 403; Kletschka v. Driver, supra, 411 F.2d at 444.
On the question of violation of the statutory requirements appellants' argument is that providers must be reimbursed the "reasonable cost" of services to Medicare beneficiaries and that working capital must be considered an element of "reasonable cost"; the new PIP system by introducing a time lag between the delivery of service and reimbursement allegedly fails to provide for working capital. As we read § 1395x(v)(1)(A), note 9 supra, which defines reasonable cost so as to provide the principles for determining the amount of reimbursement, see 20 C.F.R. § 405.402(b),*fn10 that statute defines the term as a cost "actually incurred." If appellants incur costs in the form of interest on a loan to obtain working capital, ...