995 F.3d 737
9th Cir.2021Background:
- Dr. Willie Goffney, a surgical oncologist, had Medicare billing privileges deactivated in 2008 for nonsubmission of claims and continued treating Medicare patients without payments.
- In 2015 Goffney submitted CMS enrollment forms (CMS-855 series), checking a box indicating revalidation/recertification, seeking to reactivate and preserve his original effective billing date.
- Noridian (the Medicare contractor) approved the reactivation but set a new effective billing date of August 31, 2015, precluding payment for services rendered during the deactivation period.
- Goffney exhausted administrative remedies (ALJ and Departmental Appeals Board denied relief) and sought review in district court, which granted summary judgment for HHS; Goffney appealed.
- The Ninth Circuit affirmed, holding the relevant regulation (42 C.F.R. § 424.520(d)) genuinely ambiguous and that the agency’s interpretation—treating the reactivation/recertification as an "enrollment application" resetting the effective date—was reasonable and entitled to Auer/Kisor deference.
- The court also affirmed denial of Goffney’s request to supplement the administrative record, finding no clear evidence the record was incomplete or that extra-record review was warranted.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a recertification/reactivation submission qualifies as a "Medicare enrollment application" under 42 C.F.R. § 424.520(d) | Goffney: recertification is not a "new enrollment application" and thus should not reset the effective billing date | HHS/Noridian: recertification/reactivation is an "enrollment application" for purposes of § 424.520(d), so effective date is the filing date | Court: regulation ambiguous; agency reasonably interpreted recertification/reactivation as an enrollment application, so Aug. 31, 2015 is the effective date |
| Whether the agency’s interpretation receives deference under Auer/Kisor | Goffney: agency interpretation is inconsistent with plain language and ad hoc | HHS: interpretation is longstanding, reflected in PIM, implicates agency expertise, and is reasonable | Court: Kisor standards met — regulation genuinely ambiguous, agency position authoritative, expert, and a fair/considered judgment; Auer deference applies |
| Whether the district court abused discretion by denying supplementation of the administrative record | Goffney: agency omitted materials; additional records likely show arbitrary/capricious action | HHS: administrative record was complete; Goffney identifies no specific missing documents or bad faith | Court: no clear evidence the record was incomplete or that extra-record exceptions apply; denial affirmed |
Key Cases Cited
- Kisor v. Wilkie, 139 S. Ct. 2400 (reaffirmed Auer deference but limited it by requiring genuine ambiguity and several prudential checks)
- Auer v. Robbins, 519 U.S. 452 (agency interpretations of their own regulations ordinarily receive controlling deference unless plainly erroneous)
- Chevron U.S.A. Inc. v. Natural Resources Def. Council, 467 U.S. 837 (two-step framework for judicial review of agency statutory interpretations)
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (earlier articulation of deference to agency interpretations of regulations)
- Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (discusses deference and agency expertise in Medicare context)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (an agency interpretation must reflect a fair and considered judgment to receive deference)