Opinion
No. 99-1085
May 18, 2000
Before BOUDIN, Circuit Judge, CYR, Senior Circuit Judge, AND LYNCH, Circuit Judge.
ORDER OF COURT
The petition for rehearing by the panel is denied. The panel opinion holds that the statute neither prohibits the Provider Reimbursement Review Board from taking jurisdiction, nor requires it to do so. In its petition, the government asserts that "[p]ermitting providers to entirely bypass the intermediary's expertise in favor of initial PRRB consideration of cost claims will have potentially disastrous consequences for Medicare's carefully-constructed system of review of such claims." (Pet. at 13.) That is not so. As the panel opinion states, the Board may, in its discretion, take steps to prevent providers from bypassing intermediaries. The Board need notreview on a case-by-case basis claims not presented to intermediaries; it can adopt an across-the-board policy of refusing to hear such claims. "In light of the statutory scheme here, a rule of consistently refusing to hear inadvertently omitted claims would be rational. . . ."MaineGeneral Med. Ctr. v. Shalala, 205 F.3d 493, 501 (1st Cir. 2000).
For the reasons stated in my dissent, I believe the panel majority disregards the central reality that the ultimate ratio decidendi in this case is whether the method chosen by the Secretary to deter the types of appeals here involved rests on a rational interpretation of the medicare statute, per Chevron. It is not the function of the courts to suggest that the Secretary must consider other rational means for accomplishing the same end. I therefore respectfully dissent from the denial of the government's petition for panel rehearing.