UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ALLCARE HOSPICE, INC., f/k/a Comforting Care Hospice, Inc., Plaintiff-Appellant,

v. KATHLEEN SEBELIUS, Secretary, United States Department of Health and Human Services, Defendant-Appellee. No. 12-7081 (D.C. No. 6:11-CV-00365-FHS) (E.D. Okla.)

ORDER AND JUDGMENT *

Before MATHESON , Circuit Judge, PORFILIO , Senior Circuit Judge, and O’BRIEN , Circuit Judge.
Plaintiff AllCare Hospice, Inc. (A llCare) provides hosp ice services to terminally ill patients. AllC are receives reimbursement fro m the Secretary of Health and Human Services (Secretary) for hospice care provided to Medicare recipients. Congress has set an annual limit, or cap, on aggregate reim bursement for hospice

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 4, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - services provided to these Medicare reci pients. In the ev ent that the amount reimbursed to a provider such as AllCare exceeds the cap, the Secr etary is entitled to seek repayment from the provider. Between April 4, 2007 and December 7, 2010, the Secretary, acting through a fiscal intermediary, issued several overpayment notices to AllCare seeking repayment of amounts allegedly overpaid during the y ears 2003 through 2009. AllCare did not immediately contest these overpayment no tices, but instead made arrangements to pay the amounts due. On July 21, 2011, however, AllCare filed appeals with the Provider Reimbursement Review Board (PRRB) from each of the no tices in question, challenging the Secretary’s regulation us ed to calculate the amounts due. The PRRB dismissed AllCare’ s appeals because they ha d not been filed within the prescribed 180-da y period for appeal, see 42 U.S.C. § 1395 oo (a)(3) (establishing 180-day deadline for appeal to PRRB), and because AllCare had failed to show good cause to receive an extension of time for appeal. AllCare then sought review of the PRRB’s decision in district court. The dist rict court dismissed AllCare’s petition for review, reasoning that the PRRB’s dismissal of AllCare’s appeal and denial of a good cause extension was not a “final decision” th at was subject to judicial review and the decision whether to grant such an extens ion was in any event committed to agency discretion and therefore unreviewable. Give n AllCare’s failure to timely exhaust its claims before the PRRB, the district court determined it lacked ju risdiction to address the merits of AllCare’s claims. Nor wa s jurisdiction available under the federal- 3 - question statute, 28 U.S.C. § 1331, the so-called Bowen exception, the Kyne doctrine, or through a petition for writ of mandamus. Finally, AllCare lacked standing to assert one of its arguments—a challenge to the Secretary’s regulation concerning expedited judicial review. “Our review of the district court’ s dismissal for lack of subject matter jurisdiction is de novo,” Full Life Hospice, LLC v. Sebelius , 709 F.3d 1012, 1016 (10th Cir. 2013) (int ernal quotation marks omitted), as is our review of a dismissal based on lack of standing, Petrella v. Brownback , 697 F.3d 1285, 1292 (10th Cir. 2012). On appeal, AllCare raises the follo wing arguments: (1) the district court erred in finding it lacked s ubject-matter jurisdiction to review AllCare’s claims; (2) the district court erred in its determ ination concerning AllC are’s standing; and (3) jurisdiction over its claims was ava ilable under the Mandamus Act, 28 U.S.C. § 1361. Having carefully reviewed the briefs , the record, and the applicable law, we affirm the district court’s judgment for substantially the reas ons stated in its well-reasoned Order and Opin ion of October 23, 2012.

Entered for the Court

John C. Porfilio Senior Circuit Judge12-7081, AllCare Hospice v. Sebelius O’BRIEN , J., concurring in the result
AllCare is not entitled to j udicial relief from the Bo ard’s decision. My only concern with the district cour t’s decision is the dismissal of Count Five for lack of jurisdiction (it alleged the Board arbitraril y and capriciously denied its motion for an extension of time to file its claim). AllCare sought a good cause extension of time to file the subject claim. Such an extension is permitted by regulation, 42 C.F.R. § 405.1836, but not expressly permitted by statute. The sa me regulation, 42 C. F.R. § 405.1836(e)(4 ), insulates the Board’s good cause determinat ion from judicial review. Concern arises from an immigration case, Kucana v. Holder , 558 U.S. 233 (2010). What I take away from that deci sion is that Congress can insulate agency decisions from judicial review but an agency cannot, without congressional authorization, do the same. Whether such authorization ex ists is, at bo ttom, a matter of statutory construction. The Medicare statute permits judicial review of “any final decision of the Board.” 42 U.S.C. § 1395oo(f)(1). The dist rict court determined “final decision of the Board” to be an ambiguous phrase and afforded Chevron 1 deference to regulations defining final decision and speci fying the type of decisions subject to

1 Chevron U.S.A., Inc. v. Nat’l Res. Def. Council , 467 U.S. 837 (1984).- 2 - judicial review. It did not mention Kucana , probably because the case was not argued (it is not mentioned in A llCare’s filings in this Court). The district court’s dism issal of Court Five for la ck of jurisdiction may be correct even though the Kucana decision was not considered. In any event, the Board was not arbitrary and capricious in refusi ng to extend the filing date beyond the 180 days provided by the st atutes. Accordingly, I readil y vote to affirm, but am unwilling to do so “for substantially th e reasons stated in [the di strict court’s] well-reasoned Order and Opinion of October 23, 2012.”