L. Ed. 2d 715 (1986) (applying this principle to Medicaid statute).
Our deference to agency action is not without limitation, however. If Congress has explicitly spoken on a issue, we, like the agency, are bound to follow the congressional directive. Therefore, when a court reviews agency action, it is faced with two questions: 1) whether Congress addressed the issue in question directly; and if not, 2) whether the agency's resolution of the issue was based on a valid construction of the statute at issue in light of the deferential standard articulated above. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Under this review scheme, our starting place for evaluating the PRRB's decision is the express language of § 1395oo(a) governing appeals from the intermediary.
1. The Intermediary Review Statute
Although neither the Supreme Court, nor the Second Circuit, has expressly addressed this precise issue, it is not novel within this circuit. Indeed, this Court has previously held that § 1395oo(a) does not expressly require the PRRB to exercise jurisdiction over an intermediary's denial of a motion to reopen. Binghamton, 856 F. Supp. at 795 (Sand, J.). In Binghamton, as here, the plaintiffs challenged the PRRB's determination that it was without jurisdiction to review a reopening denial by their intermediary. The Court, concluding that the most reasonable construction of the Medicare statute was "that Congress intended that denials of reopening not be considered appealable 'final determinations' under § 1395oo(a)," held that Congress had not directly addressed the precise question at issue and proceeded to defer to the Secretary's interpretation as contained in the regulations and Program instructions. Id.
Binghamton is in line with the District of Columbia Circuit, which has held that not only does § 1395oo(a) not unambiguously provide an appeal from an intermediary's decision not to reopen, but it does not provide appeals of reopening dispositions in general.
HCA Health Services of Oklahoma, Inc. v. Shalala, 307 U.S. App. D.C. 164, 27 F.3d 614, 618 (D.C. Cir. 1994). Other decisions within and by that circuit, while not extending that far, like Binghamton have held that § 1395oo(a) does not provide for appeals of reopening denials. See Memorial Hosp. v. Sullivan, 779 F. Supp. 1406, 1409 (D.D.C. 1991) (Memorial I) (section 1395oo(a) does not govern appeals from an intermediary's decision not to reopen); Athens Community Hosp. v. Schweiker, 240 U.S. App. D.C. 1, 743 F.2d 1, 4 n.4 (D.C. Cir. 1984), overruled on other grounds, Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 99 L. Ed. 2d 460, 108 S. Ct. 1255 (1988) (same); St. Mary's of Nazareth Hosp. Ctr. v. Schweiker, 239 U.S. App. D.C. 288, 741 F.2d 1447, 1449 (D.C. Cir. 1984) (per curiam) (same).
The Ninth Circuit, on the other hand, has held that § 1395oo(a) expressly provides for such appeals. State of Oregon On Behalf Of The Oregon Health Sciences Univ. v. Bowen, 854 F.2d 346, 348-49 (9th Cir. 1988). See also Kootenai Hosp. District v. Bowen, 650 F. Supp. 1513, 1520 (N.D. Cal. 1987). Finding that an intermediary's decision not to reopen was a "final decision" within the meaning of § 1395oo(a), that court overturned the PRRB's determination that it had no jurisdiction to hear an appeal from such a decision. State of Oregon, 854 F.2d at 349.
In addressing whether the plain language of § 1395oo(a) provides appeals of an intermediary's decision not to reopen a cost report, we need only decide whether such decision is a "final determination . . . as to the amount of total program reimbursement . . . ." 42 U.S.C. § 1395oo(a)(1)(A)(i).
If it is, then the express language of § 1395oo(a) grants the PRRB jurisdiction to review such decisions and our inquiry is finished. If it is not, however, we must turn to the implementing regulations to determine whether the Board's interpretation of those regulations in light of § 1395oo(a) was an abuse of its discretion.
We are mindful that the Secretary's reopening scheme is a product of the implementing regulations and, while arguably authorized,
was not expressly contemplated by Congress in enacting the Medicare statute; Memorial I, 779 F. Supp. at 1409 ("Plaintiff's 'rights' in the reopening process are defined by the agency's regulations and not by Congressional directive."); Binghamton, 856 F. Supp. at 793 (reopening authorized solely by the implementing regulations). Obviously, appeals from denials of reopening requests are even farther from the expressed intent of Congress. Therefore, plaintiffs' contention that an agency created "reopening right" is governed by the plain language of a statute admittedly not specifically creating that right seems somewhat strained.
Even apart from this fact, however, we concur in the holding of Binghamton that the plain meaning of § 1395oo(a)(1)(A)(i) does not compel a holding that the denial of a motion to reopen is a "final determination . . . as to the amount of total program reimbursement." While we agree with plaintiffs that a decision not to reopen is in some sense "final," it does not, in and of itself, establish an "amount of total program reimbursement." Instead, it is a final determination that there are not grounds on which to reconsider a previous final determination as to the amount of total program reimbursement. Staten Island Hosp. v. Sullivan, Civ. A. No. 91-0733 (RCL), 1992 WL 675952, at *5 n.6 (D.D.C. March 31, 1992). As this Court previously stated:
[A decision not to reopen] is akin to the decision of a judicial panel or en banc court to deny rehearing, and no one supposes that that denial, as opposed to the panel opinion, is an appealable action.
Binghamton, 856 F. Supp. at 794 (citation omitted).
Although this distinction might appear technical, a holding that such denial "establishes the amount of total program reimbursement," as did the Ninth Circuit, would allow a provider to challenge not only the denial on appeal to the PRRB, but the underlying reimbursement amount, effectively gutting the 180-day appeal limitation expressly provided by § 1395oo(a)(3).
Successive three year reopening requests would keep a provider's cost report subject to review indefinitely. We cannot suppose, as plaintiffs would have us hold, that the plain meaning of one statutory subsection that reduces another subsection to mere surplusage is inherently unambiguous.
In support of their motion, plaintiffs argue that when read in conjunction with other statutes, § 1395oo(a) must be interpreted as granting the Board jurisdiction to review reopening denials. First, plaintiffs cite § 1395oo(g) which prevents review of certain findings of the intermediary.
Plaintiffs contend that by carving out specific exceptions for these two cases, Congress intended all other findings of the intermediary to be reviewable.
Plaintiffs apparently ignore the plain language of § 1395oo(a). It states that only "final determinations . . . as to the amount of total program reimbursement" are reviewable by the Board. Section 1395oo(g) carves out two exceptions to that limited grant of jurisdiction. While we agree with plaintiffs that the Secretary might not be able to carve out further exceptions to the reviewability provided by § 1395oo(a), the fact remains that review of a reopening denial is not expressly provided by § 1395oo(a). Therefore, our denial of such review does not create an additional exception to § 1395oo(a)'s jurisdictional grant.
Plaintiffs would have us stop reading § 1395oo(a)(1)(A)(i) after the words "final determination." Apparently, they claim that § 1395oo(g) mandates that construction.
However, if Congress wished to make all "final determinations" of the intermediary reviewable, they could have done so. Indeed, Congress made all "final decisions" of the Board, irrespective of what those final determinations were, subject to judicial review. 42 U.S.C. § 1395oo(f)(1). Instead, Congress provided the Board under § 1395oo(a)(1)(A)(i) with jurisdiction to review only determinations as to the amount of total program reimbursement. In interpreting § 1395oo(a)(1)(A)(i), we must "give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U.S. 330, 339, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979). A reopening denial is not a final determination of the amount of total program reimbursement.
Finally, plaintiffs argue in their reply memorandum that in light of § 1395oo(a)(1)(A)(ii),
the "final determination" language of § 1395oo(a)(1)(A)(i) should be read broadly to include reopening denials. In Washington Hosp. Ctr. v. Bowen, 254 U.S. App. D.C. 94, 795 F.2d 139 (D.C. Cir. 1986), the court held that under § 1395oo(a)(1)(A)(ii) the issuance of an NPR was not a prerequisite to review of by the Board of a hospitals PPS payment. Once the intermediary had determined a hospital's HSP, the hospital could appeal to the Board pursuant to that subsection.
Id. at 148. Citing this case, plaintiffs apparently argue that an "amount of total program reimbursement" is not confined to an NPR.
Whether or not this is true, it does not alter our holding that a denial of a motion to reopen is not a determination as to the amount of total program reimbursement. While under Washington Hospital, plaintiffs may not have had to wait until their intermediary had issued their NPRs to appeal to the Board, plaintiffs offer no explanation as to how this interpretation of § 1395oo(a) changes the fact that a reopening denial does not establish an amount of program reimbursement. Washington Hospital merely held that a final determination by the Secretary of a hospital's HSP and PPS amounts triggered appealability under § 1395oo(a)(1)(A)(ii). A denial of a motion to reopen does not "determine" those amounts, however.
Because in reading the plain language § 1395oo(a)(1)(A)(i) we cannot hold that Congress unambiguously resolved the issue before us, we must proceed to the second Chevron question.
2. The Reopening Regulation
As indicated above, § 1395oo(a) does not mention reopening of NPRs and other intermediary determinations, but such action is authorized in the implementing regulations. See 42 C.F.R. §§ 405.1885-405.1889 (1994). Those regulations provide in pertinent part:
(a) A determination of an intermediary .. . may be reopened with respect to findings on matters at issue in such determination or decision, by such intermediary . . . on the motion of the provider affected by such determination or decision to revise any matter in issue at any such proceedings. Any such request to reopen must be made within 3 years of the date of the notice of the intermediary.
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(c) Jurisdiction for reopening a determination or decision rests exclusively with that administrative body that rendered the last determination or decision.