Board AR 012. Accordingly, this Court has subject matter jurisdiction over the merits of the Hospitals’ outlier payment claims based on the EJR provisions of the Medicare statute, 42 U.S.C. § 1395oo(f)(1). Case 1:14-cv-01195-APM Document 23 Filed 06/01/15 Page 51 of 52 44 CONCLUSION For the foregoing reasons, the Hospitals respectfully request that this Court enter an order holding (a) that HHS’s renewed self-disallowance regulation, as applied to challenges to HHS’s regulations, is invalid, (b) that the Hospitals’ appeals satisfy all of the jurisdictional requirements of section 1395oo, (c) that there is no need to remand to the Board because it has no authority to hear the merits of the Hospitals’ substantive claims, and (d) that the Hospitals shall be permitted to file an amended complaint pleading their substantive claims within 20 days after the Court’s order.

255. The Deputy Administrator’s order of July 29, 2004, was effected through an extraordinary interlocutory administrative appeal process that the Administrator had previously ruled (in other cases) to be categorically unavailable in the Medicare administrative appeal process established under 42 U.S.C. § 1395oo. See Texas Disproportionate Share Group Appeal, Adm’r Dec. (July 22, 1996) Medicare & Medicaid Guide (CCH) ¶ 44,581 fn.

12. This action is timely filed under 42 U.S.C. § 1395oo(f), in that it has been brought within 60 days of Hospital Plaintiffs’ date of receipt of the Secretary’s final decisions on their administrative appeals. Case 1:13-cv-00643-RMC Document 65 Filed 06/17/15 Page 15 of 384 1220 C Document 92-2 2 09 7 6 9 16 4831-2220-7524.

106(h) (emphasis added). Accordingly, because DCH has sought to challenge its payment prior to receiving a final determination, its claim is premature and inconsistent with the Medicare review scheme set forth in 42 U.S.C. § 1395oo(a). DCH’s claim must therefore be dismissed.

By statute, the Board “has full power and authority to make rules and establish procedures, not inconsistent with the provisions of this title or regulations of the Secretary, which are necessary or appropriate to carry out the provisions of this section.” 42 U.S.C. § 1395oo(e). Accordingly, the Board was well within its authority under 42 C.F.R. § 405.

42 C.F.R. § 405.1868(b)(3); see 42 U.S.C. § 1395oo(e). Substantial evidence further supported the PRRB decision that HRS violated PRRB Rules 5 and 11 because HRS even acknowledged it was not the representative in the appeal, then explicitly claimed it was the representative in the March filing to add new issues, but admitted on the included Model Form C that it was not the representative on file, and then failed to provide the required authorization letter.

Case 1:16-cv-00099-RBW-AK Document 16 Filed 07/22/16 Page 18 of 50 4828-4620-3957.2 V. STANDARD OF REVIEW The Medicare Act provides for judicial review of a final decision made by the PRRB or the Secretary. 42 U.S.C. § 1395oo(f)(1). It instructs the reviewing court to apply the provisions of the Administrative Procedure Act.

See Shands MSJ at 24-30; St. Helena MSJ at 19-30; Bakersfield MSJ at 9-30; AHA MSJ at 13- 24; Athens Regional MSJ at 12-27. Judicial review of the challenged rulemaking is provided for under 42 U.S.C. § 1395oo(f)(1), which incorporates the APA’s deferential arbitrary-and- capricious standard of review. See id.

The IPPS payment rate is based on hospitals’ average costs per discharge in a base period, updated annually. See 42 U.S.C. § 1395oo(d)(2)(A). Similarly, the SNF PPS payment rate is based on facilities’ allowable costs in a base period, updated annually.

Ctr. v. Heckler, 714 F.2d 872, 874 (7th Cir. 1983); 42 U.S.C. § 1395oo(f). II.