United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-5327 September Term, 2020

FILED ON: JANUARY 29, 2021

AKRON GENERAL MEDICAL CENTER,

APPELLANT

v.

ALEX MICHAEL AZAR, II, SECRETARY OF HEALTH AND HUMAN SERVICES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-02137)

Before: TATEL and GARLAND*, Circuit Judges, and GINSBURG, Senior Circuit Judge.

J U D G M E N T

This appeal from the United States District Court for the District of Columbia was 

considered on the record and on the briefs of the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. 

R. 34(j). The court has afforded the issues full consideration and has determined that they do not 

warrant a published opinion. See D.C. Cir. R. 36(d). It is 

ORDERED and ADJUDGED that the judgment of the district court be AFFIRMED.

Akron General Medical Center (“Akron General”) challenges the Provider Reimbursement 

Review Board’s order dismissing in part and remanding in part its appeal of Medicare 

reimbursement amounts determined by its Medicare contractor. Akron General raises three issues. 

First, Akron General argues that the Board erroneously remanded its challenge of the contractor’s 

calculation of the “SSI fraction,” an adjustment factor for the overall reimbursement amount. The 

Board found that the challenge was subject to Centers for Medicare & Medicaid Services (CMS)

Ruling 1498-R, which directed the Board to remand all pending SSI fraction-related claims to the 

contractor to apply a revised methodology. Second, Akron General argues that the Board dismissed 

its “DSH sub-issues” based on an unlawful regulation setting deadlines for adding issues to 

* Judge Garland was a member of the panel at the time this case was argued but did not participate 

in the final disposition of the case. 
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pending appeals. Third, Akron General argues that the Board erroneously dismissed its “Medicaid 

eligible patient days” claim, which the Board found abandoned because Akron General had failed 

to discuss the issue in its final position paper, as required by a Board rule. 

Akron General sought judicial review of the Board’s decision in the district court. The 

district court found that it lacked jurisdiction to review the Board’s order remanding the SSI 

fraction issue because the remand order was not a final agency order subject to judicial review 

under the Medicare statute. See Akron General Medical Center v. Azar, 414 F. Supp. 3d 73, 78–79 

(D.D.C. 2019) (citing 42 U.S.C. § 1395oo(f)(1)). The district court then found that the Board had 

properly dismissed the remaining claims because Akron General failed to follow the Board’s 

claims-processing rules, granting summary judgment in favor of the Board. Id. at 84. Our review 

is de novo. See St. Luke’s Hospital v. Sebelius, 611 F.3d 900, 904 (D.C. Cir. 2010).

Central to Akron General’s claims is the question whether the Board’s decision and 

regulations unlawfully limit the Board’s jurisdiction. Because the answer is no with respect to each 

claim, we affirm the district court’s grant of summary judgment. 

First, as the district court concluded, the Board’s order remanding the SSI fraction issue 

was not a final agency order subject to judicial review because the Board had not yet reached the 

end of its decision-making process. See National Ass’n of Home Builders v. Norton, 415 F.3d 8,

13 (D.C. Cir. 2005) (to be considered a final agency order, “the action under review must mark 

the consummation of the agency’s decisionmaking process—it must not be of a merely tentative 

or interlocutory nature” (internal quotation marks omitted)). In fact, the remand order marks the 

beginning of the agency’s decision-making process, as it sends the claim back to the contractor to 

apply a new methodology. See Meredith v. Federal Mine Safety & Health Review Commission, 

177 F.3d 1042, 1047 (D.C. Cir. 1999) (finding that an agency order remanding to the ALJ fell 

“outside the heartland of final action”). 

Attempting to sidestep this inconvenient fact, Akron General argues that this court should 

treat the Board’s remand order relying on CMS Ruling 1498-R as a final order because the ruling 

unlawfully removed the Board’s jurisdiction from cases that challenge the SSI fraction 

methodology. But viewed in its entirety, the ruling leaves the Board’s jurisdiction undisturbed. It 

directs the Board to identify appeals to remand to Medicare contractors and explains that the Board 

retains jurisdiction over those same reimbursement appeals after recalculation. See, e.g., CMS 

Ruling 1498–R, 2010 WL 3492477, at *14 (Apr. 28, 2010); see also Empire Health Foundation v. 

Burwell, 209 F. Supp. 3d 261, 269 (D.D.C. 2016) (explaining that CMS Ruling 1498-R, “[f]ar 

from being jurisdictional by peremptorily removing certain cases from the [Board’s] purview 

entirely,” is “more similar to a claim-processing rule that seeks to maximize administrative 

economy” (internal quotation marks omitted)). Although the ruling refers to the Board’s 

jurisdiction, mere references to the word “jurisdiction”—a “‘word of many, too many, meanings’” 

that is “often thrown around in a hapless manner”—are insufficient to transform a clear remand 

order into final agency action. Empire Health, 209 F. Supp. 3d at 268 (quoting Steel Co. v. Citizens 

for a Better Environment, 523 U.S. 83, 90 (1998)).
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As to the “DSH sub-issues” that it failed to raise until after the deadline to add new issues, 

Akron General argues that the regulation setting that deadline, Provider Reimbursement 

Determinations and Appeals, 73 Fed. Reg. 30,190 (May 23, 2008), unlawfully limits the Board’s 

jurisdiction. But the regulation does no such thing. Although describing itself as “prescrib[ing]” 

the Board’s authority, the regulation acknowledges that the Medicare statute defines the Board’s 

jurisdiction but concludes that the statute “does not prevent [CMS] from limiting the period a 

provider has to add issues [on appeal].” Id. at 30,203–04. The Board’s decision likewise described 

itself as a “decision regarding jurisdiction,” but the rest of the decision makes clear that the Board

dismissed the DSH sub-issues not because it lacked jurisdiction, but because “these issues were 

not properly added to the appeal” “prior to the October 20, 2008 deadline.” May 14, 2015 Board 

Decision Letter at 3, 8, Joint Appendix 15, 20. The Medicare statute and regulations plainly allow 

the Board to do so. See 42 U.S.C. § 1395oo(e) (granting the Board “full power and authority to 

make rules and establish procedures . . . which are necessary or appropriate to carry out the 

provisions of this section”); 42 C.F.R. § 405.1868(b) (“If a provider fails to meet a filing deadline 

or other requirement established by the Board in a rule or order, the Board may . . . [d]ismiss the 

appeal with prejudice[.]”).

Finally, the Board properly dismissed the “Medicaid eligible patient days” issue because 

Akron General failed to brief the issue on the merits as required by regulations. See Provider 

Reimbursement Review Board Rule 27 (Mar. 1, 2013), https://www.cms.gov/Regulationsand-Guidance/Review-Boards/PRRBReview/Downloads/PRRBRules_03_01_2013.pdf. Akron 

General argues that the Board’s dismissal was a jurisdictional ruling, but the Board’s decision is 

patently to the contrary: as the district court found, “the text of the Board’s decision makes clear 

that it was not dismissing the Medicaid Eligible Patient Days issue on jurisdictional grounds—

indeed, it was not addressing the jurisdictional arguments at all because Akron General had 

abandoned the Medicaid Eligible Patient Days issue altogether by failing to include that issue in 

its final position paper.” Akron General Medical Center, 414 F. Supp. 3d at 82. As with the DSH 

sub-issues claim, the Board has authority to dismiss the claim for failing to meet a procedural 

requirement. See 42 C.F.R. § 405.1868(b).

The Clerk is directed to withhold issuance of the mandate herein until seven days after 

resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. 

P. 41(b); D.C. Cir. R. 41.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk