UNITED STATES COURT 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. (AllCare) provides hospice services to 

terminally ill patients. AllCare receives reimbursement from 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 reimbursement for hospice 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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
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services provided to these Medicare recipients. In the event that the amount 

reimbursed to a provider such as AllCare exceeds the cap, the Secretary 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 years 2003 through 2009. AllCare did not 

immediately contest these overpayment notices, 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 notices in question, 

challenging the Secretary’s regulation used to calculate the amounts due. 

The PRRB dismissed AllCare’s appeals because they had not been filed within 

the prescribed 180-day period for appeal, see 42 U.S.C. § 1395oo(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 district 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” that was subject to judicial review and the 

decision whether to grant such an extension was in any event committed to agency 

discretion and therefore unreviewable. Given AllCare’s failure to timely exhaust its 

claims before the PRRB, the district court determined it lacked jurisdiction to address 

the merits of AllCare’s claims. Nor was jurisdiction available under the federal 
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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) (internal 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 following arguments: (1) the district court 

erred in finding it lacked subject-matter jurisdiction to review AllCare’s claims; 

(2) the district court erred in its determination concerning AllCare’s standing; and 

(3) jurisdiction over its claims was available 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 reasons stated in its 

well-reasoned Order and Opinion of October 23, 2012. 

 Entered for the Court 

 John C. Porfilio 

 Senior Circuit Judge 
12-7081, AllCare Hospice v. Sebelius 

O’BRIEN, J., concurring in the result 

 AllCare is not entitled to judicial relief from the Board’s decision. My only 

concern with the district court’s decision is the dismissal of Count Five for lack of 

jurisdiction (it alleged the Board arbitrarily 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 same regulation, 42 C.F.R. § 405.1836(e)(4), insulates the 

Board’s good cause determination from judicial review. 

 Concern arises from an immigration case, Kucana v. Holder, 558 U.S. 233 

(2010). What I take away from that decision is that Congress can insulate agency 

decisions from judicial review but an agency cannot, without congressional 

authorization, do the same. Whether such authorization exists is, at bottom, 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 district court determined “final decision of 

the Board” to be an ambiguous phrase and afforded Chevron1

 deference to 

regulations defining final decision and specifying the type of decisions subject to 

 

1 Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984). 
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judicial review. It did not mention Kucana, probably because the case was not 

argued (it is not mentioned in AllCare’s filings in this Court). 

 The district court’s dismissal of Court Five for lack of jurisdiction may be 

correct even though the Kucana decision was not considered. In any event, the Board 

was not arbitrary and capricious in refusing to extend the filing date beyond the 180 

days provided by the statutes. Accordingly, I readily vote to affirm, but am unwilling 

to do so “for substantially the reasons stated in [the district court’s] well-reasoned 

Order and Opinion of October 23, 2012.”