Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ASCENSION BORGESS HOSPITAL, et al. ,
Plaintiffs,
Civil Action No. 20-139 (BAH) v.
Chief Judge Beryl A. Howell XAVIER BECERRA, Secretary of Health and
Human Services,
Defendant. MEMORANDUM OPINION
Pending before the Court are cross-motions for summary judgment regarding the dismissal of claims asserted by forty-eight plaintiff hospitals before the U.S. Department of Health and Human Services’ (“HHS”) Provider Reimbursement Review Board (“PRRB”) for lack of jurisdiction. Plaintiffs challenged their reimbursement from HHS for serving a disproportionate share of low-income patients, arguing before the PRRB that the use of an undisclosed audit protocol to estimate the relevant factors and determine the amounts of reimbursements was improper because the protocol is a substantive rule that HHS failed to properly promulgate through notice-and-comment rulemaking. The PRRB dismissed for lack of jurisdiction, on the ground that, pursuant to a statutory bar on administrative and judicial review codified at 42 U.S.C. § 1395ww(r)(3), challenges to the methodology used in calculating the disproportionate share payments are precluded regardless of whether the challenge is characterized as procedural or substantive.
In this appeal of the PRRB rulings, plaintiffs contend that notice-and-comment challenges fall outside the scope of the statutory preclusion provision and that the relevant audit protocols are ultra vires . Plaintiffs’ attempts to evade the statutory bar on administrative or judicial review are foreclosed, however, by binding precent. For the reasons set forth below, HHS’s motion for summary judgment is granted, and plaintiffs’ motion for summary judgment is denied.
I. BACKGROUND
Resolving the instant motions requires navigating the “labyrinthine world” of Medicare
reimbursements.
See Adirondack Med. Ctr. v. Sebelius
,
A. Statutory Background
The Medicare program was established by Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq ., to pay for health-care services furnished to eligible beneficiaries, who are generally individuals over the age of sixty-five or individuals with disabilities. See id. § 1395c. A sub-agency of HHS, the Centers for Medicare and Medicaid Services (“CMS”) administers Medicare, id. § 1395kk, and, among other responsibilities, pays hospitals for providing inpatient hospital services, § 1395ww(d).
The dispute between the parties here is narrow, but requires some background on the key
statutory provision, 42 U.S.C. § 1395ww(r). Section 1395ww governs payments to hospitals for
inpatient hospital services, and § 1395ww(d)(5)(F) directs HHS to make supplementary
payments to certain hospitals that serve a disproportionate number of low-income patients
(known as Disproportionate Share Hospitals or “DSHs”). § 1395ww(d)(5)(F);
see also Fla.
Health Scis. Ctr., Inc. v. Sec’y of Health & Human Servs.
(“
Florida Health II
”),
The amended DSH criteria, which became effective in fiscal year (“FY”) 2014, create two payments: An “empirically justified” payment equal to twenty-five percent of the amount due to a hospital based on the pre-ACA formula, 42 U.S.C. § 1395ww(r)(1), and an “additional payment” for uncompensated care based on a hospital’s estimated proportional share of the uncompensated care of all DSHs, § 1395ww(r)(2). This additional payment is calculated by multiplying three factors: (a) seventy-five percent of the Secretary’s estimate of the upcoming fiscal year’s DSH payments nationwide based on the pre-ACA formula; (b) an estimate of the decline in the national uninsured rate for the fiscal year as compared to 2013; and (c) an estimate of each qualifying hospital’s proportional share of the total nationwide amount of uncompensated care. § 1395ww(r)(2)(A)–(C). Paragraph 3 of § 1395ww(r)—the Preclusion Provision—limits review as follows:
There shall be no administrative or judicial review under section 1395ff of this title, section 1395oo of this title, or otherwise of the following: (A) Any estimate of the Secretary for purposes of determining the factors described in paragraph (2);
(B) Any period selected by the Secretary for such purposes.
42 U.S.C. § 1395ww(r)(3).
Paragraphs (2)(c) and (3) of § 1395ww(r) are implicated in this suit. Plaintiffs challenge the auditing procedure used by the Secretary in calculating Factor Three of their uncompensated care payments, see 42 U.S.C. § 1395ww(r)(2)(C), and HHS argues that such a challenge is foreclosed by the Preclusion Provision.
B. Regulatory Background
To implement the mandates of § 1395ww(r), HHS employs a data collection tool known as “Worksheet S-10,” which is a component of the Medicare cost report submitted annually to HHS by hospitals. FY 2020 Final Rule, 84 Fed. Reg. 42,044, 42,359, 42,364–68 (Aug. 16, 2019). In Worksheet S-10, hospitals provide data on the volume and value of uncompensated care provided to low-income patients, and Worksheet S-10 is “the only national data source that includes data for all Medicare hospitals.” FY 2014 Final Rule, 78 Fed. Reg. 50,496, 50,635 (Aug. 19, 2013). Until recently, “most of the data elements reported on Worksheet S-10” were “unused for payment purposes.” Medicare Administrative Contractors (“MACs”) are hired by HHS to carry out “certain auditing and payment functions for” the agency, including managing payments for inpatient services and, relevant here, auditing hospitals’ Worksheet S-10 submissions. Def.’s Mem. Supp. Mot. Dismiss & Mot. Summ. J. (“Def.’s Mem.”) at 3, ECF No. 24-2 (citing 42 U.S.C. §§ 1395h, 1395x(u), 1395kk-1).
Each year since 2013, HHS has proposed and adopted the methodology for calculating
the estimates underlying the following year’s uncompensated care through rulemaking.
See
generally, e.g.
, 84 Fed. Reg. 42,044; 78 Fed. Reg. 50,496. Although HHS has long used
Worksheet S-10 to collect uncompensated care data from hospitals, the agency used other proxy
data to calculate Factor 3 in the DSH rulemaking process through FY 2017 because of concerns
“that hospitals [had] not had enough time to learn how to submit accurate and consistent data
through this reporting mechanism.”
After years of proposing to use Worksheet S-10 data, and “[l]ong after the S-10 audits were completed,” Pls.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n Def.’s Mot. Dismiss & Mot. Summ. J. (“Pls.’ Opp’n”) at 6, ECF No. 30, HHS announced via notice-and-comment rulemaking that its FY 2020 estimates of Factor 3—the proportions of hospitals’ uncompensated care—would be based on the data provided in Worksheet S-10 for FY 2015. 84 Fed. Reg. at 42,048. HHS justified its decision to use FY 2015 data from Worksheet S-10, in part, because “this was the most recent year of data that [it] had broadly allowed to be resubmitted by hospitals.” at 42,364. Since “it was not feasible to audit all hospitals,” id. at 42,365, the decision of which hospitals to audit was “based on a risk-based assessment process,” id. , resulting in a selection of hospitals for audit whose combined uncompensated care payments “represented approximately half of the proposed total uncompensated care payments for FY 2020,” at 42,364.
C. Factual & Procedural Background
Plaintiffs are forty-eight hospitals eligible to receive uncompensated care payments under 42 U.S.C. § 1395ww(r). Consolidated Compl. (“Compl.”) ¶ 14, ECF No. 21. [1] Each hospital had its Worksheet S-10 for FY 2015 audited by MACs, and, per the FY 2020 final rule, those audits resulted in “changes to the Worksheets S-10 [that] reduced or otherwise altered the amounts of payments made by CMS,” id. ¶ 51, for FY 2020, id. ¶ 60. Plaintiffs timely administratively appealed these reimbursement decisions to the PRRB, arguing that HHS’s use of unpublished audit protocols to establish uncompensated care payments violated the notice-and-comment rulemaking requirements of the Medicare Act and Administrative Procedure Act. [2] Compl. ¶¶ 59–60, 64–65. The PRRB determined that administrative review of the uncompensated care payments was barred by § 1395ww(r)’s preclusion provision and, consequently, that it did not have jurisdiction over the issues in the appeals. AR ( Ascension Borgess ) 4–5, ECF No. 37-1; AR ( Atrium ) 5–6, ECF No. 37-2. [3]
Plaintiffs subsequently appealed the PRRB’s final decisions to this Court, challenging the PRRB’s dismissal of their reimbursement appeals for lack of jurisdiction. Compl. ¶¶ 2, 80, 88; see also 42 U.S.C. § 1395oo(f)(1) (“Providers shall have the right to obtain judicial review of any final decision of the [PRRB.]”). Count I of the complaint alleges violations of the Medicare Act predicated on the alleged failure of the Secretary to implement the Worksheet S-10 audit protocol without promulgating the protocol through notice-and-comment rulemaking. Compl. ¶¶ 75–80. Count II of the complaint alleges that, for various reasons, the Worksheet S-10 audit protocol was contrary to law and arbitrary and capricious under the APA. Id. ¶¶ 81–88.
Plaintiffs’ complaint seeks an order declaring the Worksheet S-10 audit protocol unlawful, vacating the payments based on the Worksheet S-10 audit, requiring the Secretary to recalculate those payments, and setting aside the PRRB decisions refusing to exercise jurisdiction over their appeals. at 17 (“Request for Relief”). [4] Defendant filed a motion for summary judgment, see Def.’s Mot., and plaintiffs responded with a cross-motion for summary judgment, both of which motions have been fully briefed and are ripe for resolution. See Pls.’ Cross-Mot. Summ. J., ECF No. 28; Def.’s Opp’n; Pls.’ Reply.
II. LEGAL STANDARD
Summary judgment will be granted when the court finds, based upon the pleadings and
other factual materials in the record, “that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” F ED . R. C IV . P. 56(a);
see also Anderson
v. Liberty Lobby, Inc.
,
A district court considering a challenge to agency action under the APA treats the “entire
case on review [as] a question of law,”
Rempfer v. Sharfstein
,
Under the APA, a court must “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A); in excess of statutory authority,
id.
§ 706(2)(C); or
“without observance of procedure required by law,” § 706(2)(D). “The scope of review under
the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for
that of the agency.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.
,
III. DISCUSSION
The parties’ cross-motions for summary judgment present a single issue within the jurisdiction of this Court: whether 42 U.S.C. § 1395ww(r)(3) precludes administrative and judicial review of the Secretary’s decision to use the audited Worksheet S-10 data in his calculation of plaintiffs’ uncompensated care factor. See Pls.’ Opp’n at 29 (conceding that “the scope of this Court’s jurisdiction is currently limited to only review of the PRRB’s dismissal of the Hospitals’ appeals under the Preclusion [Provision]”). For the reasons explained below, plaintiffs’ challenge to the audit protocol is precluded, and HHS’s motion for summary judgment is granted.
A. Preclusion
Although “plaintiffs bear the burden of establishing jurisdiction,” courts must “presume
the Congress intends that agency action be judicially reviewable.”
Knapp Med. Ctr. v. Hargan
,
The subsection of the Medicare statute at issue here, governing calculation of uncompensated care payments to Disproportionate Share Hospitals, has been the subject of much litigation. As described above, see supra Part I.A, 42 U.S.C. § 1395ww(r) contains three paragraphs. Paragraph 1 establishes the “[e]mpirically justified DSH payments,” paragraph 2 establishes the “[a]dditional payment” for uncompensated care, and paragraph 3 limits administrative and judicial review of specific aspects of the Secretary’s calculation of the uncompensated care payments. 42 U.S.C. § 1395ww(r)(1)–(3).
Before the PRRB, plaintiffs challenged an audit procedure for the Worksheet S-10 used to estimate each hospital’s share of uncompensated care and, ultimately, determine their DSH payments under 42 U.S.C. § 1395ww(r)(2). See Compl. ¶ 84 (“The Secretary’s inclusion of the S-10 Audits in the adjustments that reduced the Hospitals’ [uncompensated care] DSH payments is thus contrary to the law.”); see also Pls.’ Opp’n at 1. Aware that “the Preclusion Provision applies to substantive challenges to the Secretary’s [uncompensated care] DSH estimates and time periods,” Pls.’ Opp’n at 15, plaintiffs frame their challenge as a procedural one, asserting that “procedural challenges to the Secretary’s improper establishment of reimbursement policy” fall outside the scope of the Preclusion Provision, at 16. HHS argues that, regardless of whether the plaintiffs’ challenge is characterized as procedural, their claims are precluded because plaintiffs’ ultimate aim is to force HHS to re-calculate one of the factors articulated in § 1395ww(r)(2). See Def.’s Mem. at 27.
B. Scope of the Preclusion Provision
The D.C. Circuit has instructed that, when determining whether review is barred by
§ 1395ww(r)(3), “[t]he dispositive issue is whether the challenged [action is] inextricably
intertwined with an action that all agree is shielded from review, regardless of where that action
lies in the agency’s decision tree.”
Florida Health II,
The D.C. Circuit expanded upon the reasoning of
Florida Health II
in
DCH Regional
Medical Center v. Azar
(“
DCH II
”),
Here, plaintiffs’ challenge to the Worksheet S-10 audit protocol is inextricably
intertwined with the Secretary’s Factor 3 estimates used to calculate the plaintiffs’
uncompensated care payments, and therefore is precluded from administrative and judicial
review by § 1395ww(r)(3). Plaintiffs acknowledge that their claims “focus” on Factor 3 of
§ 1395ww(r)(2) because “if a hospital’s uncompensated care is understated by an audit, it will
receive a reduced percentage of the ‘total uncompensated care.’” Compl. ¶ 34;
see also
Pls.’
Opp’n at 6 (“Using the 2015 audited and unaudited S-10 data reported by MACs in the February
2019 Healthcare Cost Report Information System (HCRIS) data files, CMS proposed calculating
each DSH hospital’s Factor 3, which is their
pro rata
share of the [uncompensated care] pool, in
their usual manner for Factor 3.”) As HHS correctly argues,
see
Def.’s Opp’n at 2, the audit
protocols at issue are part of the methodology used by the Secretary to determine “the amount of
uncompensated care for [each] hospital.” 42 U.S.C. § 1395ww(r)(2)(C)(i). These protocols are
therefore “inextricably intertwined” with the resulting uncompensated care estimates.
Florida
Health II
,
The structure of the statute lends further support to HHS’s reading of the Preclusion
Provision. An individual hospital’s reimbursement under § 1395ww(r)(2) is dependent on the
fraction of the amount of that hospital’s uncompensated care over “the aggregate amount of
uncompensated care for all subsection (d) hospitals that receive a payment under this
subsection.” § 1395ww(r)(2)(C). As HHS correctly observes, this payment structure means
that a change to any of the § 1395ww(r)(2) factors would require “changes to every single
provider’s DSH payment.” Def.’s Mem. at 26. The D.C. Circuit noted in interpreting a different
Medicare subsection precluding review that “piecemeal review of individual payment
determinations could frustrate the efficient operation of the complex prospective payment system
. . . [and] review could result in the retroactive ordering of payment adjustments after hospitals
have already received their payments for the year.”
Amgen
,
Where the ultimate relief sought is recalculation of the estimates used to determine DSH
payments—which are themselves precluded from review—the statute precludes review
regardless of whether the challenge is characterized as substantive or procedural, or whether the
estimates themselves are directly challenged.
See DCH II
,
Plaintiffs’ arguments to the contrary are unpersuasive. In an attempt to distinguish
Florida Health II
and
DCH II
, plaintiffs argue that their claims are distinct by alleging a
procedural
failure by the Secretary to abide by “the Medicare Act’s express notice-and-comment
obligations,” Pls.’ Opp’n at 16, and that this kind of claim is distinct from the “substantive
appeals” that were at issue in those cases,
id
at 15. In plaintiffs’ reasoning,
Allina Health
Services v. Price
(“
Allina I
”),
As HHS points out, however, both
Florida Health II
and
DCH II
involved procedural
rulemaking requirements.
See
Def.’s Opp’n at 8. In
Florida Health Sciences Center, Inc. v.
Secretary of U.S. Department of Health and Human Services
. (“
Florida Health I
”),
Plaintiffs observe that both Florida Health II and DCH II were decided before the Supreme Court’s decision in Allina II , see Pls.’ Opp’n at 15–16, but overlook the fact that Allina II affirms the D.C. Circuit’s opinion in Allina I , and that DCH II was decided after Allina I was binding law in this Circuit. Moreover, despite the amount of ink spilled by plaintiffs discussing Allina I and Allina II , see Pls.’ Opp’n at 3, 20–21; Pls.’ Reply at 12–13, 16–17, these cases address the generally applicable Medicare notice-and-comment requirement set out in 42 U.S.C. § 1395hh(a)(2), and have limited relevance here. The scope of the Medicare Act’s notice-and- comment requirement would be relevant in evaluating the merits of plaintiffs’ claims—i.e., that the Worksheet S-10 audit protocol establishes or changes a substantive legal standard within the meaning of § 1395hh(a)(2)—but has no bearing on whether these claims are barred by the Preclusion Provision.
Plaintiffs also attempt to distinguish these cases by noting that, purportedly in contrast to
plaintiffs’ claims here, “[t]he notice-and-comment claims brought in
Florida Health
and
DCH
were still claims seeking review of the Secretary’s estimates, underlying data, or methodology.”
Pls.’ Reply at 9. The premise that plaintiffs’ claims do not challenge estimates, underlying data,
or methodology is simply wrong. The challenged audit procedures are part of the methodology
behind the Factor 3 estimate because the data being audited are used to calculate the hospitals’
uncompensated care amounts under § 1395ww(r)(2)(C). The statute vests the Secretary with
broad discretion in determining hospitals’ uncompensated care, allowing the agency to estimate
such care based on “appropriate data” and to use “alternative data” determined to be a better
proxy in making the estimate.
Scranton Quincy Hosp. Co.
,
Plaintiffs’ reliance on
American Clinical
and three out-of-circuit cases is similarly
misplaced. In
American Clinical
, the D.C. Circuit addressed a provision of the Protecting
Access to Medicare Act, Pub. L. No. 113-93, 128 Stat. 1040 (2014), that sets Medicare
reimbursement rates for laboratory tests and requires certain laboratories to report private payor
data to HHS.
Plaintiffs point to the D.C. Circuit’s reliance on statutory language “that the parameters
for that data collection be established through notice and comment rulemaking,”
American
Clinical
,
Moreover, the reasoning of
American Clinical
relied heavily on the bifurcated structure
of the relevant statute, which contained
separate
provisions addressing payment rates and
addressing data collection parameters.
Plaintiffs also cite out-of-circuit cases holding—in line with plaintiffs’ position in this
case—that the Preclusion Provision does not reach procedural challenges to policies that affect
DSH payments.
See
Pls.’ Opp’n at 16–20. Specifically, plaintiffs rely primarily on
Yale New
Haven Hospital v. Azar
,
§ 1395hh(a)(2), and challenges to the “ substance of any such rules or policies or the determination of its estimates based on the substance of those rules or policies.” (emphasis in original). The district court noted that “Congress has demonstrated it knows how to encompass the process of establishing rules within the ambit of preclusion provisions,” , pointing to another Medicare statutory preclusion provision that applies to “the process under this paragraph ( including the establishment of such process ),” 42 U.S.C. § 1395nn(i)(3)(I) (emphasis added).
That district court did not, however, apply the D.C. Circuit’s functional analysis that
looks to whether the challenged agency action is “inextricably intertwined” with the estimates
the review of which is expressly precluded,
see Florida Health II
,
Plaintiffs also cite
North Oaks Medical Center v. Azar
, Case No. 18-cv-9088, 2020 WL
1502185 (E.D. La. Mar. 25, 2020), and
Regeneron Pharmaceuticals, Inc. v. U.S. Department of
Health and Human Services
,
C. Ultra Vires Action
Finally, plaintiffs argue that HHS’s application of the audited 2015 Worksheet S-10 data
in implementing the FY 2020 Final Rule was
ultra vires
, and that the Court has jurisdiction to
review this agency action regardless of statutory bar on judicial review. Compl. ¶¶ 88; Pls.’
Opp’n at 28–29. Claims of
ultra vires
acts may be subject to judicial review in “narrow”
circumstances “where Congress is understood generally to have precluded review.”
Griffith v.
Fed. Lab. Rels. Auth.
,
HHS argues that plaintiffs fail to meet either the first or the third requirements for application of the Kyne exception to overcome the statutory preclusion provision. See Def.’s Mem. at 33–35. As support, HHS points out that the Preclusion Provision is express and that the agency did not plainly act contrary to a statutory prohibition because the use of the audited 2015 Worksheet S-10 was implemented through notice-and-comment rulemaking. See id. Plaintiffs respond that because § 1395ww(r)(3) refers to “estimates” and “periods,” the statute only expressly precludes direct challenges to those estimates and periods. Pls.’ Opp’n at 28 (citing 42 U.S.C. § 1395ww(r)(3)).
Plaintiffs’
ultra vires
argument falls short of satisfying the first and third factors. First,
plaintiffs are wrong about the proper level of analysis in considering whether the statutory
preclusion is “express.” Under binding precedent, the Preclusion Provision is express with
regard to challenges to the methodology used to the establish the § 1395ww(r)(2) estimates.
See
DCH II
,
Second, plaintiffs have failed to establish that the Secretary “plainly act[ed] in excess of
[his] delegated powers and contrary to a specific prohibition in the statute that is clear and
mandatory.”
DCH II
,
Accordingly, plaintiffs may not avoid the statutory bar on review by arguing that the Secretary’s actions are ultra vires .
IV. CONCLUSION
For the foregoing reasons, the applicable Preclusion Provision of 42 U.S.C. § 1395ww(r)(3) bars administrative and judicial review of plaintiffs’ claims. HHS’s motion for summary judgment is therefore granted, HHS’s motion to dismiss is denied as moot, and plaintiffs’ motion for summary judgment is denied.
An order consistent with this Memorandum Opinion will be entered contemporaneously. Date: August 30, 2021
__________________________ BERYL A. HOWELL Chief Judge
Notes
[1] This is a consolidated action combining the complaints of two groups of plaintiff-hospitals. Compl. ¶ 15; see also Min. Order (Aug. 18, 2020) (consolidating Atrium Medical Center. v. Azar , Case No. 20-cv-1957, with Ascension Borgess Hospital v. Azar , Case No. 20-cv-193). The only difference between the groups of plaintiffs is that one group initially appealed HHS’s decision based on Notices of Program Reimbursement, while the other appealed from payment adjustments published in the Federal Register. Compl. ¶¶ 16–17. The distinction has since blurred since, by the time plaintiffs filed a consolidated complaint, nine of the plaintiffs in the first group alleged that they were adversely affected by the Federal Register publication as well, ¶ 18, and plaintiffs represented in subsequent briefing “that by the time of the Government’s reply deadline, [plaintiffs] anticipate this issue will be moot and that all of the Hospitals will then be pursuing only Federal Register appeal denials from the PRRB,” Pls.’ Opp’n at 30.
[2] The PRRB is charged with reviewing challenges to DSH payments. 42 U.S.C. § 1395oo(a).
[3] HHS submitted a certified list of the contents of the administrative record, in accordance with Local Civil Rule 7(n)(1). See Index of Admin. Record, ECF No. 25. Consistent with Local Civil Rule 7(n)(1), the portions of the administrative record cited or otherwise relied upon in the parties’ briefing have been separately docketed. See J.A., ECF No. 37. For clarity, “AR” citations are to the full administrative records, rather than to the joint appendix. The administrative records for the two consolidated cases are separately designated.
[4] In requesting relief beyond review of the PRRB decision, plaintiffs prematurely raised merits challenges under the Administrative Procedure Act and Medicare Act, Compl. ¶¶ 75–79, 82–87, prompting HHS to move for dismissal under Federal Rule of Civil Procedure 12(b)(1), Def.’s Mot. Dismiss & Mot. Summ. J, ECF No. 24. The parties now agree, however, that the only issue properly before the Court is whether the PRRB erred in dismissing plaintiffs’ complaint for lack of jurisdiction. Pls.’ Opp’n. at 13; Pls.’ Reply Supp. Cross-Mot. Summ. J. (“Pls.’ Reply”) at 2, ECF No. 36; Def.’s Reply Supp. Mot. Dismiss & Mot. Summ. J. & Opp’n Pls.’ Cross-Mot. Summ. J. (“Def.’s Opp’n”) at 16, ECF 33.
[5] Although HHS also filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), Def.’s Mot., plaintiffs have conceded that the only issue currently before the Court is the jurisdictional decision of the PRRB, Pls.’ Opp’n at 22 n.7 (noting that “the Hospitals believe it more appropriate for the Court to rule on the cross- motions for summary judgment”); Pls.’ Reply at 2 (requesting remand to the PRRB for further proceedings), making HHS’s Rule 12(b)(1) motion moot.
[6] Another Judge on this Court recently applied
Florida Health II
and
DCH II
to a challenge to “the manner in
which [the Secretary] calculated [plaintiffs’] uncompensated care adjustment,”
Scranton Quincy Hospital Co. v.
Azar
,
[7] To the extent that plaintiffs independently seek relief under the Mandamus Act, 28 U.S.C. § 1361, see Pls.’ Opp’n at 16–17, that relief is also barred by the Preclusion Provision which categorically bars review under the Medicare Act “or otherwise,” 42 U.S.C. § 139ww(r)(3).