On February 26, 2010, the District Court for the District of Columbia ruled against a group of providers who attempted to capitalize after the fact on the provider-friendly ruling in the Baystate case (in which the Provider Reimbursement Review Board (PRRB or Board) held that the SSI Ratios used to compute providers' disproportionate share hospital (DSH) adjustments were systemically flawed). Auburn Regional Medical Center, et al. v. Sebelius, 2010 WL 675053 (D.D.C. 2010). In Auburn, the providers appealed their fiscal year 1987-2004 notices of program reimbursement (NPRs), alleging that their DSH payment adjustments were understated because they had been calculated using inaccurate SSI Ratios. However, because the providers did not meet the 180-day deadline for filing appeals to the Board, the Board ruled that the providers' appeals were untimely. The providers readily admitted that they had not met the 180-day appeal deadline, but argued that because they did not learn of the inaccurate SSI Ratios until the Board's decision in Baystate was issued, equitable tolling should apply and the providers should be given 180 days from the Board's decision in Baystate (as opposed to 180 days from issuance of their NPRs) to file their appeals.
The Board denied the providers' appeals, stating that it had no authority to grant a request for equitable tolling. The providers appealed the Board's decision to the D.C. District Court, arguing that (1) equitable tolling should apply; (2) the court should order the use of accurate SSI Ratios through a grant of mandamus; and (3) if judicial review is not available under the Medicare statute's grant of jurisdiction, then federal court jurisdiction is appropriate under 28 USC § 1331. With respect to the providers' first argument, the court held that it was obligated to follow the D.C. Circuit's precedent in Athens Comm. Hosp. v. Schweiker, which held that the Board's dismissal of an untimely provider appeal is not a "final decision" within the meaning of 42 U.S.C. § 1395oo(f), and therefore, is not subject to judicial review. With respect to the providers' mandamus request, the court ruled that the absence of a requisite "duty" on the part of the defendant and the failure of the providers to exhaust administrative remedies precluded the court from granting mandamus relief. Finally, the court held that Congress did not intend to allow judicial review of Medicare claims under 28 U.S.C. § 1331. The lesson to be learned from this case is that the law and courts are not sympathetic to providers' untimely attempts to appeal Medicare reimbursement determinations.