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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
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No. 01-5294, Consolidated with, 01-5298
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2003.CDC.0000144< http://www.versuslaw.com>
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June 20, 2003
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PUBLIC CITIZEN, INC., APPELLEE
v.
U. S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES AND CENTERS FOR MEDICARE AND MEDICAID SERVICES, F/K/A
HEALTH CARE FINANCING ADMINISTRATION, APPELLANTS
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Appeals from the United States District Court for the District of
Columbia (No. 00cv00731)
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G. Michael Harvey, Assistant U.S. Attorney, argued the cause for
appellants. With him on the briefs were Roscoe C.
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Howard, Jr., U.S. Attorney, R. Craig Lawrence, Assistant U.S.
Attorney, Alex M. Azar II, General Counsel, U.S. Department of Health
& Human Services, and Henry R. Goldberg, Deputy Associate General
Counsel.
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Darrel J. Grinstead and Jeffrey D. Pariser were on the brief for amici
curiae The American Hospital Association, et al., in support of appellants
and reversal.
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Amanda Frost argued the cause for appellee. With her on the brief was
Allison Zieve. Brian Wolfman entered an appearance.
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Sarah Lenz Lock, Dorothy Siemon, Michael Schuster, Vicki Gottlich, and
Gill Deford were on the brief for amici curiae The Center for Medicare
Advocacy, Inc., and Aarp in support of appellee urging
affirmance.
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Before: Edwards, Rogers, and Garland, Circuit Judges.
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The opinion of the court was delivered by: Garland, Circuit
Judge
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Argued October 4, 2002
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When a Medicare beneficiary files a complaint with a Peer Review
Organization (PRO) about the quality of medical services that he or she
has received, the Peer Review Improvement Act requires the PRO to "inform
the individual ... of the organization's final disposition of the
complaint." 42 U.S.C. § 1320c-3(a)(14). According to the Health Care
Financing Administration (HCFA) of the Department of Health and Human
Services (HHS), a PRO can comply with this requirement by sending the
complainant a form letter that merely states that the PRO has examined the
complainant's concerns and that it will take appropriate action if
warranted.*fn1 Indeed, if the complainant's health care practitioner
objects to the PRO providing information that explicitly or implicitly
identifies the practitioner, HCFA bars the PRO from saying anything
more.
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We conclude that the statutory command to inform a complainant of the
"final disposition" of the complaint requires more than what HCFA
currently permits. At a minimum, it requires the organization to notify
the complainant of the results of its review. We therefore affirm the
district court's order invalidating those provisions of the Department's
Peer Review Organization Manual that bar PROs from providing such
information to complaining beneficiaries.
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I.
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A.
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In 1982, Congress amended the Social Security Act by enacting the Peer
Review Improvement Act of 1982, Pub. L. No. 97-248 §§ 141-150, 96 Stat.
324 (1982) (codified as amended at 42 U.S.C. § 1320c et seq. ). The 1982
Act called for HHS to contract with PROs to perform a range of quality
improvement and professional review activities. PROs are private,
geographically based organizations composed of licensed doctors "engaged
in the practice of medicine or surgery in the area." 42 U.S.C. § 1320c-1.
HCFA contracts with PROs to review the quality, reasonableness, and
efficiency of medical services provided under Medicare, as well as to
determine whether the services provided are within Medicare's statutory
coverage. Id. § 1320c-3(a)(1); see also id. § 1395y(g).
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Section 1320c-3(a)(1) of the statute requires each PRO to "review some
or all of the professional activities" of physicians and other providers
of services for which payment may be made under Medicare. Id. §
1320c-3(a)(1). The statute also contains a number of confidentiality
provisions, including § 1320c-9(a), which states:
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Any data or information acquired by any such organization in the
exercise of its duties and functions shall be
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held in confidence and shall not be disclosed to any person except --
(1) to the extent ... necessary to carry out the purposes of this part,
(2) in such cases and under such circumstances as the Secretary shall by
regulations provide to assure adequate protection of the rights and
interests of patients, health care practitioners, or providers of health
care, or (3) in accordance with [provisions permitting specified
disclosures to federal and state agencies]. 42 U.S.C. §
1320c-9(a).
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On April 17, 1985, pursuant to the delegation of authority contained
in § 1320c-(9)(a)(2), HCFA issued regulations defining "confidential
information" to include: "(1) Information that explicitly or implicitly
identifies an individual patient, practitioner or reviewer[;] (2) Sanction
reports and recommendations[;] (3) Quality review studies which identify
patients, practitioners or institutions[; and] (4) PRO deliberations." 42
C.F.R. § 480.101(b). The regulations, however, also incorporate the
statutory exceptions for disclosure of confidential information enumerated
in § 1320c-9(a)(1) & (3) and set out above. 42 C.F.R. § 480.103. They
further provide that a PRO "may disclose to any person, agency or
organization, information on a particular practitioner or reviewer with
the consent of that practitioner or reviewer provided that the information
does not identify other individuals." Id. § 480.133(a)(2)(iii). The
regulations became effective on May 17, 1985, and have not changed in
relevant part since that time. Compare 42 C.F.R. §§ 476.101(b), 476.103,
476.133 (1985), with 42 C.F.R. §§ 480.101(b), 480.103, 480.133
(2002).
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In October 1986, approximately a year and a half after HCFA
promulgated its confidentiality regulations, Congress amended § 1320c-3 to
impose upon PROs the further duty that is specifically at issue in this
case. The new section, § 1320c-3(a)(14), provides as
follows:
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The organization shall conduct an appropriate review of all written
complaints about the quality of services ... not meeting professionally
recognized standards of health care, if the complaint is filed with the
organization by an individual entitled to benefits for such services ...
(or a person acting on the individual's behalf). The organization shall
inform the individual (or representative) of the organization's final
disposition of the complaint. Before the organization concludes that the
quality of services does not meet professionally recognized standards of
health care, the organization must provide the practitioner or person
concerned with reasonable notice and opportunity for
discussion.
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42 U.S.C. § 1320c-3(a)(14) (emphasis added). HHS has not promulgated
any regulation that implements or addresses §
1320c-3(a)(14).
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B.
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On December 15, 1998, Doris Shipp went to Baptist East Hospital in
Louisville, Kentucky, complaining of abdominal pain. Over the next few
months, Mrs. Shipp was seen by Drs. Peter Thurman, Thomas C. Dedman, and
David Jolgren. Mrs. Shipp died of cancer in June 1999. On December 6,
1999, her husband, David Shipp, wrote to Health Care Excel (Excel), the
PRO responsible for monitoring the delivery of Medicare services in
Kentucky, and asked Excel to investigate and respond to his concerns about
the quality of care that his wife had received.
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In response, Excel sent Mr. Shipp three letters -- one for each of the
three physicians -- entitled "Notice: Quality of Care Determination." The
first letter, concerning Dr. Thurman, informed Shipp that "[n]o quality of
care concerns were identified with the services provided by Dr. Thurman,"
and that "[i]t has been determined that the examination your wife received
on March 24, 1999, was appropriate and not expected to reveal the cecal
cancer diagnosis that was discovered later." J.A. 58. This language
approximates the model response provided in HCFA's Medicare Peer Review
Organization Manual for use in situations "[w]hen the involved
practitioner consents to disclosure of information that identifies
him/her." HCFA, Medicare Peer Review Organization Manual Transmittal 84,
Ex. 5-17 (Dec. 21, 2000) [hereinafter PRO Manual].
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The letters concerning Drs. Dedman and Jolgren, by contrast, advised
Mr. Shipp that, because those doctors did not consent to the release of
information about the care they provided, Excel could not provide specific
information about the results of its review. Each letter contained the
following paragraph:
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We have carefully examined all the issues raised in your
correspondence and conducted a thorough review of the care your wife
received. Federal laws and regulations prohibit us from releasing
information about your care without the consent of your physician. Your
wife's physician did not give consent; therefore, we are unable to provide
any specific information about the results of our review. Our inability to
provide this information does not mean that we found any problem with the
care she received. However, please be assured that if we did find a
problem, we will take all necessary action when our review findings
warrant it.
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J.A. 54, 56 (emphasis added). This response approximates the model
provided in the PRO Manual for use "[w]hen the involved practitioner does
not consent to disclosure of information that explicitly or implicitly
identifies him/her," PRO Manual, Ex. 5-17,*fn2 and follows the instructions contained in the manual's
narrative sections.*fn3 PRO manuals since 1990 have expressed a similar
nondisclosure policy.*fn4
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C.
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Mr. Shipp is a member of Public Citizen, Inc., a nonprofit consumer
advocacy organization. On behalf of Mr. Shipp and other similarly situated
members, Public Citizen sued HHS and HCFA under the Administrative
Procedure Act, 5 U.S.C. § 706(2)(A), contending, inter alia, that the PRO
Manual's instructions violate § 1320c-3(a)(14)'s requirement that PROs
inform complainants of the "final disposition" of the complaint. Public
Citizen asked the district court: (i) to declare invalid the regulations
and policies that prohibit PROs from disclosing the results of PRO
investigations when to do so would identify a non-consenting practitioner;
and (ii) to direct the defendants to retract those manual provisions and
inform PROs that they must disclose the results of their investigations.
First Am. Compl. at 4-5 (J.A. 35-36).
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On cross-motions for summary judgment, the district court found it
clear from " `the history, structure, and underlying policy purpose of the
statute' ... that § 1320c-3(a)(14) requires a PRO to inform beneficiary
complainants of the substantive disposition of the complaint." Public
Citizen, Inc. v. Department of Health & Human Serv., 151 F. Supp. 2d
64, 71 (D.D.C. 2001) (quoting Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044,
1048 (D.C. Cir. 1997)). The court granted Public Citizen's motion for
summary judgment and, inter alia, held that "the provisions in HCFA's PRO
Manual prohibiting disclosure of the results of § 1320c-3(a)(14)
investigations are contrary to law." Id. at 77.
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II.
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We review the district court's grant of summary judgment de novo.
Arizona v. Thompson, 281 F.3d 248, 253 (D.C. Cir. 2002). The government
contends that our analysis is governed by the standard of review
articulated by the Supreme Court in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984). Under that decision, when
reviewing an agency's construction of a statute that it administers, we
first ask "whether Congress has directly spoken to the precise question at
issue." Chevron, 467 U.S. at 842. If so, "that is the end of the matter"
and we "must give effect to the unambiguously expressed intent of
Congress." Id. at 842-43. If, however, "the statute is silent or ambiguous
with respect to the specific issue," we move to the second step and must
defer to the agency's interpretation as long as it is "based on a
permissible construction of the statute." Id. at 843.
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The one thing that is indisputably clear about the statute at issue
here is that it does not unambiguously mandate the government 's
interpretation, and the government does not contend otherwise. See
Appellants' Br. at 14, 40-41. The district court concluded that §
1320c-3(a)(14) unambiguously supports the plaintiff 's interpretation and
requires PROs to advise complainants of the results of the peer review
investigation. It therefore held, under step one of Chevron, that the
government's interpretation -- which construes the section as requiring
PROs to do nothing more than inform beneficiaries that their complaint has
been disposed of, without describing the content of that disposition --
cannot stand. We find considerable merit in the district court's view of
congressional intent. For the reasons discussed below, however, we need
not (and therefore do not) rest our decision on Chevron 's first
step.
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Nor do we rely on the second step of Chevron. As the Supreme Court has
recently held, not all statutory interpretations by agencies qualify for
the level of deference afforded by that step. See United States v. Mead
Corp., 533 U.S. 218, 227-31 (2001); Christensen v. Harris County, 529 U.S.
576, 587 (2000). In Mead, the Court declared Chevron deference appropriate
only where Congress has "delegated authority to the agency generally to
make rules carrying the force of law, and ... the agency interpretation
claiming deference was promulgated in the exercise of that authority." 533
U.S. at 226-27.
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There is no dispute that the first part of this requirement is met by
Congress' delegation to the Secretary of the authority to promulgate
"regulations" governing PROs in general, 42 U.S.C. § 1320c-3(a)(8), and
the disclosure of PRO information in particular, id. § 1320c-9(a)
(forbidding disclosure of PRO data except in accordance with the statute,
or "in such cases and under such circumstances as the Secretary shall by
regulations provide to assure adequate protection of the rights and
interests of patients, health care practitioners, or providers of health
care" (emphasis added)). But the Secretary has not promulgated any
regulation that interprets or even mentions § 1320c-3(a)(14). The only
potentially relevant regulations, the confidentiality regulations of 42
C.F.R. pt. 480 described above, were promulgated before § 1320c-3(a)(14)
was enacted in 1986. See Medicare Program; Acquisition, Protection, and
Disclosure of Utilization and Quality Control Peer Review Organization
(PRO) Information, 50 Fed. Reg. 15,347 (Apr. 17, 1985). Accordingly, as
counsel for the government conceded at oral argument, those regulations
cannot provide a basis for deferring to the defendants' interpretation of
the meaning of the subsequently enacted phrase, "final disposition of the
complaint." See Christensen, 529 U.S. at 587 (declining to apply Chevron
deference to regulation that did not address statutory
issue).
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The only agency pronouncement upon which the defendants' claim for
deference relies is HCFA's PRO Manual. It is true, as defendants note,
that Chevron deference is not necessarily limited to regulations that are
the product of notice-and-comment rulemaking. See Barnhart v. Walton, 535
U.S. 212, 221 (2002); Mead, 533 U.S. at 231. But the Supreme Court has
twice cited "agency manuals" as an archetype of the kind of document that
is not entitled to such deference. Mead, 533 U.S. at 234 (declaring that
interpretations such as those "in policy statements, agency manuals, and
enforcement guidelines" are "beyond the Chevron pale" (internal quotation
marks omitted)); Christensen, 529 U.S. at 587 ("[I]nterpretations
contained in policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law -- do not warrant Chevron
-style deference."); see also Washington State Dep't of Soc. & Health
Serv. v. Guardianship Estate of Keffeler, 123 S.Ct. 1017, 1026 (2003)
(applying Skidmore v. Swift & Co., 323 U.S. 134 (1944), rather than
Chevron, to statutory interpretations contained in the Social Security
Administration's Program Operations Manual System).*fn5
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Whether or not some agency manuals might still be worthy of Chevron
deference, there is nothing to distinguish the one at issue here from
those disfavored by the Supreme Court. Indeed, this court has previously
held that similar sections of HCFA's PRO Manual do not involve
"substantive rights." American Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045,
1049-51 (D.C. Cir. 1987). To the contrary, we said that "[a] peer review
organization is essentially an enforcement agent of the federal
government," id. at 1048, and that the manual merely "maps out an
enforcement strategy for the PROs with whom HHS contracts," id. at 1049;
see id. at 1050-51 (holding that the manual's commands are neither
legislative nor interpretive rules); see also Mead, 533 U.S. at 234
(declaring that interpretations contained in agency "enforcement
guidelines" fail to qualify for Chevron deference). And while the PRO
statute expressly authorizes the Secretary to promulgate "regulations" to
carry out its provisions, 42 U.S.C. § 1320c-3(a)(8), it contains no
mention of agency manuals.
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In a short passage in its opening brief, the government argues that
the manual has the force of law because the contracts between HCFA and the
PROs require PROs to adhere to the confidentiality provisions of the
manual. Appellants' Br. at 43 (referring to sample contract, at J.A. 131).
But the contracts with the PROs are not materially different from a myriad
of contracts entered into by a myriad of agencies. See Bowen, 834 F.2d at
1048 ("Like an independent contractor hired to construct a government
building, the PRO carries out a task for pay at the behest of the
government.").*fn6 No court has read Mead as extending Chevron deference
to a contract entered into between an agency and a private party, and we
are loathe to permit agencies to bootstrap documents that otherwise would
not warrant Chevron deference into a more exalted status merely by
mentioning them in such a contract. Cf. J.A. 131 (sample PRO contract,
requiring PRO to adhere to "the Code of Federal Regulations, ... the PRO
Manual, and other administrative directives" (emphasis added)). Indeed,
according Chevron deference would be particularly inappropriate in this
case because the complaining Medicare recipient -- for whose benefit §
1320c-3(a)(14) was enacted -- is a stranger to the contract upon which the
government seeks to rely.
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Finally, even if we were prepared to accord Chevron deference to the
PRO Manual, that document contains no interpretation of § 1320c-3(a)(14)
to which we might defer. In an introductory paragraph, the manual does
contain a reference to § 1320c-3(a)(14)'s requirement that the PRO "inform
beneficiaries or their designated representatives of the final disposition
of the complaint," PRO Manual § 5000, but this does little more than
repeat the statutory language. As authority for its nondisclosure policy,
the manual cites only the confidentiality regulations promulgated before §
1320c-3(a)(14) appeared on the scene.*fn7 And the part of the manual that contains the model
response letters and instructions does not reference § 1320c-3(a)(14) at
all, relying instead on those pre-existing confidentiality regulations.*fn8 Most important, there is no place in the manual where
the agency explains why it believes that a PRO satisfies the statutory
injunction to inform a complainant of the "final disposition" of the
complaint simply by telling him that it has investigated the matter and
will take action if appropriate. Because the manual thus contains no
reasoning that we can evaluate for its reasonableness, the high level of
deference contemplated in Chevron 's second step is simply inapplicable.*fn9
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Although Chevron deference is unwarranted, HCFA's interpretation of §
1320c-3(a)(14) is nevertheless due a degree of deference under the rule of
Skidmore v. Swift & Co., 323 U.S. 134 (1944). As Mead explained, under
Skidmore an agency's statutory interpretation remains "eligible to claim
respect according to its persuasiveness." Mead, 533 U.S. at 221; see
Christensen, 529 U.S. at 587 (holding that where " Chevron -style
deference" is unwarranted, agency interpretations are " `entitled to
respect' ..., but only to the extent that those interpretations have the
`power to persuade' " (quoting Skidmore, 323 U.S. at 140)).
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III
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In determining the proper construction of § 1320c-3(a)(14), both
parties urge us to examine the statute's text, structure, legislative
history, and purpose. See Bell Atl. Tel. Cos., 131 F.3d at 1047. We
proceed to that task in the following sections.
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A.
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"We turn first, as we must, to the language of the statute, `the most
important manifestation of Congressional intent.' " California ex rel.
Brown v. Watt, 668 F.2d 1290, 1304 (D.C. Cir. 1981). Section
1320c-3(a)(14) states that the PRO "shall inform the individual (or
representative) of the organization's final disposition of the complaint."
HCFA contends that the term "final disposition" has merely a procedural
meaning --that the PRO must inform the complainant that the matter has
been finally disposed of, but that it need include nothing about the
substance of that disposition. As the agency points out, there are
dictionary definitions that are somewhat supportive of that view, although
even these are ambiguous. See MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 335
(10th ed. 1996) (defining "disposition" as "the act or the power of
disposing"); BLACK'S LAW DICTIONARY 423 (5th ed. 1979) (defining
"disposition" as the "[a]ct of disposing").
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We note at the outset that even if this were the appropriate
definition of "final disposition," the PRO Manual's instructions and model
letter would still be invalid. The manual's provisions do not require the
PRO to advise the complainant that the matter has been disposed of, but
only that the PRO has reviewed the matter and " will take appropriate
action if warranted by our review findings." PRO Manual, Ex. 5-17
(emphasis added); see also Letter from Excel to David Shipp (Aug. 7, 2000)
(J.A. 56) (advising that " if we did find a problem, we will take all
necessary action when our review findings warrant it" (emphasis added)).
In short, because they speak of the possibility of future action and not
of a final disposition that has already occurred, the manual's provisions
do not even comply with the defendants' own construction of §
1320c-3(a)(14).*fn10
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But we are not, in any event, persuaded by HCFA's construction. To the
contrary, the far more persuasive reading is that to inform someone of the
"final disposition" of a matter means to inform him of its substantive
result or conclusion. See, e.g., DANIEL J. ORAN, ORAN'S DICTIONARY OF THE
LAW 134 (1983) (defining "disposition" as final "settlement or result");
WILLIAM C. BURTON, BURTON'S LEGAL THESAURUS 187 (3d ed. 1998) (including
as synonyms "conclusion, decision, ... final settlement of a matter,
finding, order, pronouncement, ... resolution, settlement, [and]
solution"); BLACK'S LAW DICTIONARY 484 (7th ed. 1999) ("[a] final
settlement or determination").*fn11 The context that comes quickest
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to the judicial mind, of course, is the disposition of a case. See,
e.g., MERRIAM WEBSTER'S COLLEGIATE DICTIONARY, at 335 (defining
"disposition" as the "final arrangement" of a case); WILLIAM STATSKY,
WEST'S LEGAL THESAURUS/DICTIONARY 247 (1985) (defining "disposition" as
"[t]he final arrangement or decision (we awaited the court's
disposition)"); ORAN'S DICTIONARY OF THE LAW, at 134 ("A court's
disposition of a case may be to give a judgment, dismiss the case, pass
sentence on a criminal, etc." (emphasis omitted)). After hearing argument,
judges frequently tell the parties that they will advise them of the
disposition of the matter.*fn12 We expect that litigants, including the parties to
this appeal, would be both surprised and puzzled if all we told them at
the end of the day was that "the case has been decided" -- without telling
them what that decision was. This view is, if anything, reinforced by the
fact that the statute commands the PRO to inform the complainant "of" the
final disposition, not simply "when" that disposition has taken
place.
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This view is further reinforced by considering the context in which
the information command that is contained in § 1320c-3(a)(14)'s second
sentence appears. The preceding sentence defines the types of complaints
that PROs must investigate: " complaints about the quality of services ...
not meeting professionally recognized standards of health care." 42 U.S.C.
§ 1320c-3(a)(14) (emphasis added). The following sentence (the section's
third) imposes an administrative due process requirement before the PRO
may make a certain kind of finding: "Before the organization concludes
that the quality of services does not meet professionally recognized
standards of health care, the organization must provide the practitioner
... with reasonable notice and opportunity for discussion." Id. (emphasis
added). This context confirms that the information that is to be imparted
to the Medicare beneficiary -- after the PRO investigates the complaint
and affords the practitioner due process -- should contain the PRO's
determination as to whether the quality of services received met
"professionally recognized standards of health care."
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At oral argument, the government contended that the procedural
protections of the third sentence of § 1320c-3(a)(14) were designed not to
afford practitioners due process before sharing adverse findings with
complainants, as one would conclude from the two preceding sentences, but
rather to protect practitioners from unwarranted notification to state
licensing boards. It is true that another section, § 1320c-3(a)(9)(B),
requires a PRO to notify a state licensing board if it finds that a
physician has furnished services not meeting professionally recognized
standards of health care. 42 U.S.C. § 1320c-3(a)(9)(B). Section
1320c-3(a)(9)(B), however, contains its own due process provision,
permitting such notification only "after notice and hearing." Id. It would
be illogical to conclude that the procedural protections of §
1320c-3(a)(14) were intended not to precede the beneficiary notification
required by that section, but merely to duplicate protections that §
1320c-3(a)(9)(B) already provides as prerequisites to its state board
notification requirement. Moreover, there is an even more fundamental flaw
in the government's argument: because § 1320c-3(a)(9)(B) was not enacted
until 1990, four years after § 1320c-3(a)(14) became law,*fn13 it simply is not possible that the third sentence of
§ 1320c-3(a)(14) was intended to provide due process protections for the
not-yetenacted notification requirement of §
1320c-3(a)(9)(B).
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In sum, both the text and the context of the second sentence of §
1320c-3(a)(14) persuade us that it was intended to require a PRO to inform
a complainant of the results of its review of his complaint, and
specifically of whether the "quality of the services" that the recipient
received met "professionally recognized standards of health care." 42
U.S.C. § 1320c-3(a)(14).
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B.
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HCFA next urges us to look beyond the words of § 1320c-3(a)(14), both
to other provisions of the PRO statute and to its overall structure,
arguing that the district court's interpretation of the section is
inconsistent with the statutory scheme. We find no such
inconsistency.
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The government's first contention is that requiring PROs to notify
beneficiary complainants of the results of their reviews would abrogate
the confidentiality provisions of the PRO statute. The principal
confidentiality provision is § 1320c-9(a), which, as noted above,
states:
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Any data or information acquired by any such organization in the
exercise of its duties and functions shall be held in confidence and shall
not be disclosed to any person except -- (1) to the extent ... necessary
to carry out the purposes of this part, (2) in such cases and under such
circumstances as the Secretary shall by regulations provide to assure
adequate protection of the rights and interests of patients, health care
practitioners, or providers of health care, or (3) in accordance with
[provisions permitting specified disclosures to federal and state
agencies].
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42 U.S.C. § 1320c-9(a) (emphasis added).
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HCFA contends that requiring disclosure of the results of the PRO
review is contrary to § 1320c-9(a)(2) because such disclosure is not
affirmatively authorized by the Secretary's regulations. But §
1320c-9(a)(2) does not permit the Secretary to impose his own
nondisclosure requirements; rather, it authorizes the Secretary to
promulgate regulatory exceptions to the general nondisclosure requirement.
Other exceptions are contained in the statute itself, including the
exception for disclosures "necessary to carry out the purposes of this
part." Id. § 1320c-9(a)(1). Since one of those "purposes" is specified in
§ 1320c-3(a)(14), a disclosure made pursuant to that section cannot fairly
be said to abrogate the statutory scheme.
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| [62] |
The government's second argument invokes the canon that, where
"Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (internal
quotation marks omitted). According to the government, "Congress has
demonstrated time and again throughout the PRO statute that it knows how
to require, in plain language, the disclosure of otherwise confidential
PRO peer review results or findings," by using either of those two words
rather than "disposition." Appellants' Br. at 19 (emphasis added).*fn14
|
| [63] |
The problem with this argument is that neither of those two words,
"results" or "findings," is materially plainer -- or more substantive --
in meaning than the word "disposition." Indeed, each is a synonym for the
latter. See, e.g., ORAN'S DICTIONARY OF THE LAW, at 134 (defining
"disposition" as "[f]inal settlement or result"); BURTON'S LEGAL
THESAURUS, at 187 (listing "finding" as a synonym for "disposition").*fn15 And because we could just as readily conclude that
more detail is required to reveal the "disposition" of an investigation
than merely to disclose its "results," application of the Russello canon
to this statute is simply indeterminate.*fn16 Accordingly, we agree with the district court that,
in this case, Congress' use of slightly different words to describe
various reporting requirements shows little more than that the legislature
employed a modestly varied vocabulary to express similar meanings. Public
Citizen, 151 F. Supp. 2d at 74. Moreover, "[e]ven if Congress can be
presumed to have intended that different amounts of information be
provided" by the use of the different words, "there is no basis to infer
that ... the term `final disposition' should be limited to nothing more
than a procedural fact." Id.
|
| [64] |
The government's third contention is that requiring disclosure of the
results of PRO reviews would "effectively nullif[y] Congress' prohibition
on the discovery" of sensitive PRO information. Appellants' Br. at 22.
That prohibition is contained in § 1320c-9(d), which was enacted four
years after § 1320c-3(a)(14) and reads as follows:
|
| [65] |
No document or other information produced by such an organization in
connection with its deliberations in making determinations under section
1320c-3(a)(1)(B) or 1320c-5(a)(2) ... shall be subject to subpoena or
discovery in any administrative or civil proceeding.... 42 U.S.C. §
1320c-9(d).*fn17 The government argues that § 1320c-9(d) bars
disclosure of any document produced by a PRO "in connection with its
deliberations," and further argues that the complaint response
contemplated by the district court constitutes just such a
document.
|
| [66] |
It is plain on the face of this section, however, that the district
court's interpretation of § 1320c-3(a)(14) cannot "nullify" § 1320c-9(d),
because the latter has no application to a document that is disclosed
pursuant to § 1320c-3(a)(14).*fn18 Section 1320c-9(d) expressly protects the described
documents against being subject to "subpoena or discovery." It does not
insulate them from compliance with the statutory command of §
1320c-3(a)(14).
|
| [67] |
Indeed, if the government's construction of § 1320c-9(d) were correct,
then it would not only bar a PRO from issuing the kind of letter
contemplated by the district court, but would also bar it from issuing the
letters that Excel actually sent to Mr. Shipp. See supra Part I.B. If the
letter contemplated by the district court must be viewed as being produced
"in connection with" a PRO's deliberations, then surely the actual letters
must be as well. Section 1320c-9(d) mentions neither the degree of
substantive detail revealed by a document nor the consent of the
practitioner as a factor in its vulnerability to subpoena. It simply
states that "no" document "produced by such an organization in connection
with its deliberations" is subject to discovery. 42 U.S.C. § 1320c-9(d)
(emphasis added).
|
| [68] |
Nor is the logical difficulty of the government's construction limited
to the disclosure required by § 1320c-3(a)(14). That section is just one
of several mandating specific disclosures. See, e.g., id. §
1320c-3(a)(9)(B) (requiring disclosure to state boards); see also PRO
Manual § 5035(A) (requiring PROs to inform the complainant of "findings"
relating to institutional providers). Because § 1320c-9(d) provides
exceptions for none of these, it is not reasonable to read it as governing
the disclosure of documents in any context other than that expressly
covered by its terms: namely, disclosure in response to subpoena or other
administrative or civil discovery mechanism.
|
| [69] |
Finally, the government argues more generally that it would make no
sense for Congress to require disclosure to a beneficiary complainant of a
document that may not be disclosed in discovery to a civil litigant. They
make a similar argument based on another provision of § 1320c-9(a), which
exempts PRO documents from the requirements of the Freedom of Information
Act (FOIA), 5 U.S.C. § 552. But it is hardly surprising that Congress
would permit disclosure to the party with the most direct interest in the
information --the person who received the medical services at issue and
whose complaint initiated the investigation -- while barring disclosure to
others, or even to the same recipient in a litigation context. Indeed,
FOIA itself provides an example of such a statutory scheme. Although
certain files regarding individuals are generally unavailable to FOIA
requesters, the Privacy Act, 5 U.S.C. § 552a, permits requesters to obtain
such information pertaining to themselves.*fn19 Moreover, although "[d]iscovery limitations" may
generally bar the production of certain documents in civil or criminal
litigation, such limitations "do not apply when FOIA requests are
presented in a discrete" FOIA action. North v. Walsh, 881 F.2d 1088, 1096
(D.C. Cir. 1989).*fn20
|
| [70] |
In sum, we find no inconsistency between the requirement that a PRO
advise a complainant of the results of his complaint and the remainder of
the PRO statute. To the contrary, such a requirement is very much in
keeping with the legislative scheme.
|
| [71] |
C.
|
| [72] |
We turn next to an examination of the legislative history. Each side
points to a different precursor bill as evidence that its interpretation
of the final statute is correct. Although we do not find this exercise in
legislative tracking to be particularly productive, there is another
element of the legislative history that is helpful.
|
| [73] |
As the government points out, the original House version of §
1320c-3(a)(14) would have required a PRO to "inform the [complainant] of
the organization's conclusions ... and final disposition of the
complaint." H.R. 5300, 99th Cong. § 10241(e)(1) (1986). Because the
section as enacted speaks only of the complaint's "final disposition," the
government contends that Congress must have rejected the House's
requirement that the complainant be advised of the PRO's conclusions. It
further insists that the only meaning left for "disposition" is a
procedural one. Public Citizen, on the other hand, points out that the
original Senate bill contemplated a purely procedural notification similar
to that propounded by HCFA, requiring the PRO merely to "inform the
individual ... that the organization has received the complaint and will
take appropriate action." S. 2706, 99th Cong. § 633(b)(1) (1986). Public
Citizen contends that the absence of this language from the enacted
version indicates Congress' rejection of purely procedural
notice.
|
| [74] |
We are not persuaded by either argument. The deletion of the word
"conclusions" from the House draft could simply indicate that Congress
regarded the use of both "conclusions" and "disposition" as redundant, or
that the legislature contemplated a more bare-bones but still substantive
notification: just the bottom-line result (disposition), unencumbered by
the PRO's reasoning (conclusions). On the other hand, the deletion of the
Senate provision requiring notification that the PRO "has received" the
complaint would not by itself demonstrate that Congress would have
disapproved of HCFA's procedural construction -- which requires
notification not only that the complaint has been "received" but also that
it has been "disposed of."
|
| [75] |
Hence, if Congress had left us with these precursor bills alone,
without any explanation for its ultimate resolution of the matter, our
understanding would not be much advanced. Fortunately, Congress provided
one further piece of information. The Conference Committee explained the
final conference agreement as follows: "If a PRO makes a final
determination with respect to whether the services which are the subject
of a complaint did or did not meet professionally recognized standards of
care, the PRO would be required to inform the beneficiary ... of any final
action taken." H.R. CONF. REP. NO. 99-1012, at 361 (1986) (emphasis
added). It would be a particularly cramped reading to construe the
italicized phrase as requiring nothing more than notification that final
action was taken, rather than notification of what that action
was.
|
| [76] |
The government poses one final variant on the argument from
legislative history: implicit congressional ratification. In support, it
cites Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.
353, 382 n.66 (1982), in which the Supreme Court said: "Congress is
presumed to be aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a statute
without change." The government contends that because the PRO Act was
amended numerous times after the 1986 addition of § 1320c-3(a)(14), during
which period HCFA was interpreting that section to require nothing more
than procedural notification, Congress' failure to statutorily reverse
that interpretation demonstrates its implicit concurrence.
|
| [77] |
The Supreme Court, however, has added several caveats to the
ratification canon that render it of limited utility here. See Solid Waste
Agency v. United States Army Corps of Eng'rs, 531 U.S. 159, 169 (2001)
("Although we have recognized congressional acquiescence to administrative
interpretations of a statute in some situations, we have done so with
extreme care.").*fn21 First, the canon is of little assistance here
because, unlike Merrill Lynch, this is not a case in which "Congress
re-enact[ed] a statute without change." 456 U.S. at 382 n.66. Congress has
neither re-enacted the entire PRO statute nor amended § 1320c-3(a)(14) at
all. Rather, it has simply enacted a series of isolated amendments to
other provisions. See Appellants' Br. at 28 n.14 (collecting amendments).
Compare Alexander v. Sandoval, 532 U.S. 275, 292 (2001) ("[W]hen Congress
has not comprehensively revised a statutory scheme but has made only
isolated amendments, ... [i]t is impossible to assert with any degree of
assurance that congressional failure to act represents affirmative
congressional approval of the Court's statutory interpretation." (internal
quotation marks omitted)), with Barnhart v. Walton, 535 U.S. 212, 220
(2002) (according weight where "Congress has frequently amended or
reenacted the relevant provisions without change" (emphasis
added)).
|
| [78] |
Moreover, because "the rationale of [this] canon must be, either that
those in charge of the amendment are familiar with existing rulings, or
that they mean to incorporate them," Thompson v. Clifford, 408 F.2d 154,
164 (D.C. Cir. 1968) (internal quotation marks omitted), the government's
argument has little weight absent some evidence of (or reason to assume)
congressional familiarity with the administrative interpretation at
issue.*fn22 The government points to no such evidence here. Even
if it could be assumed that Congress was aware of HCFA's more high-profile
interpretations of the Medicare statute, its interpretation of §
1320c-3(a)(14) would hardly qualify. As we have noted above, no formal
regulation addressed the question; indeed, if any "interpretation" existed
at all, it would have to have been teased out of the model letter and
instructions buried deep within the PRO Manual.
|
| [79] |
Finally, we note that HCFA's most prominent presentation of its
position on the issue during much of the relevant period was actually one
in which the agency took the opposite view from that which it maintains on
this appeal, and precisely the position that Public Citizen urges us to
adopt. In 1989, HCFA published a notice of proposed rulemaking (NPRM)
soliciting comments on a proposed regulation that would have required PROs
to "inform the beneficiary or the beneficiary's representative whether the
quality of care meets professionally recognized standards of health care,
and, if not, the corrective action to be taken." Medicare and Medicaid
Programs; Denial of Payment for Substandard Quality Care and Review of
Beneficiary Complaints, 54 Fed. Reg. 1956, 1964 (Jan. 18, 1989). In that
NPRM, HCFA stated that while it had "considered precluding PROs from
providing any information to the beneficiary that might identify the
concerned physician or practitioner," the agency rejected that position
because " we believe that section 1154(a)(14) of the Act [42 U.S.C. §
1320c-3(a)(14)] requires that the information discussed above be provided
to the beneficiary. " Id. at 1960 (emphasis added). Although the proposed
rule was never promulgated, it remained pending at least through 1993,*fn23 and a similar rule remained under consideration
through 2001; the latter was not withdrawn until after the institution of
this lawsuit.*fn24
|
| [80] |
The interpretation contained in the agency's proposed rule does not,
of course, bind it here. See Commodity Futures Trading Comm'n v. Schor,
478 U.S. 833, 845 (1986). But it does effectively counter the government's
argument that Congress implicitly ratified the contrary interpretation by
not amending the statute. If there is any prospect that Congress was aware
of the agency's views regarding the meaning of § 1320c-3(a)(14) during the
relevant period, what it would have known was that the agency was
espousing views similar to those of Public Citizen and was moving toward
formalizing those views in a regulation. If Congress shared those views,
it would have had no reason to amend the law.
|
| [81] |
D.
|
| [82] |
Finally, the government urges us to consider the congressional purpose
underlying the PRO statute. We conclude, however, that the argument based
on legislative purpose cuts strongly against the government's
position.
|
| [83] |
The government points to the various confidentiality provisions of the
statute, and argues that they were intended both to protect the privacy of
health care practitioners and to assure the confidentiality necessary to
encourage practitioners to evaluate their peers honestly. We do not doubt
that these considerations were important to Congress and that they
underlie the confidentiality provisions of the statute. See Armstrong v.
Dwyer, 155 F.3d 211, 219 (3d Cir. 1998). As we have discussed above,
however, the confidentiality provisions are not absolute; they contain
both specific exceptions, see 42 U.S.C. § 1320c-9(a)(3), and the general
exception for disclosures "necessary to carry out the purposes of this
part," id. § 1320c-9(a)(1). The fact that § 1320c-3(a)(14) breaches
absolute confidentiality by requiring a narrow disclosure to beneficiaries
is no more remarkable than, for example, the requirement of §
1320c-3(a)(9)(B) that disclosures be made to a physician's state licensing
board.
|
| [84] |
Moreover, although protecting confidentiality was undoubtedly the
purpose of the PRO statute's confidentiality provisions, that was hardly
the only -- or even the overriding --purpose of the statute as a whole.
See S. REP. NO. 97-494, at 41 (1982) (stating that PRO contracts are for
"the purpose of promoting the effective, efficient, and economical
delivery of quality health care services under Medicare"). And when we
turn to the specific provision at issue here, § 1320c-3(a)(14), the sole
evidence we have of congressional purpose is the Conference Committee's
statement that the section was intended to "[i]mprove peer review
responsiveness to beneficiary complaints." H.R. CONF. REP. NO. 99-1012, at
361 (1986). Indeed, § 1320c-3(a)(14) is expressly phrased as a requirement
that the PRO provide information; considerations of confidentiality are
not mentioned at all.
|
| [85] |
It is hard to see how § 1320c-3(a)(14), if interpreted as the
government suggests, would improve peer review responsiveness to
beneficiary complaints. HHS's own Office of Inspector General (OIG) has
concluded that HCFA's confidentiality policy "hinder[s] the PROs' ability
to be responsive to beneficiaries who complain." HHS, OIG, The Beneficiary
Complaint Process of the Medicare Peer Review Organizations, at 6 (Nov.
1995); see HHS, OIG, The Medicare Beneficiary Complaint Process: A Rusty
Safety Valve, at ii, 16 (Aug. 2001) (stating that "current procedures ...
continue to preclude the PROs from responding substantively," resulting in
a deficiency in "responsiveness").*fn25 The government contends that, even under its limited
interpretation, § 1320c-3(a)(14) "directly improve[s] PRO responsiveness
to beneficiary complaints" because it makes the investigation of
beneficiary complaints mandatory -- which was not the case prior to 1986.
Appellants' Br. at 32. But the requirement to investigate comes from the
first sentence of § 1320c-3(a)(14), not the second. See 42 U.S.C. §
1320c-3(a)(14) (first sentence) ("The organization shall conduct an
appropriate review of all written complaints.... "). And we, of course,
are required to "give effect, if possible, to every clause and word of a
statute." Moskal v. United States, 498 U.S. 103, 109-10 (1990) (citations
and internal quotation marks omitted).
|
| [86] |
Indeed, it is hard to see what purpose the second sentence of §
1320c-3(a)(14) would serve at all under the government's construction.
According to HCFA, that sentence merely requires the PRO to advise a
complaining beneficiary of three things: that the complaint was received,
that it was investigated, and that corrective action will be taken if
appropriate. But the beneficiary could learn the first of these simply by
including a Certified Mail Return Receipt along with his complaint, and
the latter two promise nothing more than that the agency will do what the
law requires. As both Public Citizen and HHS's Inspector General suggest,
this seems little more than an empty gesture. See OIG, The Medicare
Beneficiary Complaint Process, at ii (concluding that the PRO complaint
process "fails to provide a meaningful response to complainants"). Because
"[w]hen Congress acts to amend a statute, we presume it intends its
amendment to have real and substantial effect," Stone v. INS, 514 U.S.
386, 397 (1995), we reject the government's interpretation of §
1320c-3(a)(14) as wholly unpersuasive.
|
| [87] |
IV.
|
| [88] |
We conclude that, to "inform" a Medicare beneficiary of the
organization's "final disposition" of the complaint as required by §
1320c-3(a)(14), a PRO must notify the complainant of the results of its
review. At a minimum, this means that the PRO must disclose its
determination as to whether the quality of the services that the recipient
received met "professionally recognized standards of health care." 42
U.S.C. § 1320c-3(a)(14). We therefore affirm the judgment of the district
court, which held that the provisions of the PRO Manual prohibiting
disclosure of the results of § 1320c-3(a)(14) investigations are invalid
because they are contrary to law. Public Citizen, 151 F. Supp. 2d at 77.*fn26
|
| [89] |
At one place in its brief, Public Citizen suggests that the term
"final disposition" goes further than this, requiring the PRO to advise
the complainant not only of its final judgment regarding the quality of
care received, but also of the corrective action that it has taken. See
Appellee's Br. at 15. While this suggestion certainly represents a
reasonable elaboration of the meaning of the term, it does not have -- as
does the phrase "meet[s] professionally recognized standards of health
care" -- the virtue of coming verbatim out of the first and third
sentences of § 1320c-3(a)(14). We need not decide today, however, whether
this additional information is statutorily required. The district court's
order did not expressly require it, and Public Citizen has not sought
modification of that order. Moreover, because even our more limited
"disposition" will require HCFA to rethink the kind of notification
required of PROs, there remains ample room for an administrative
resolution of this question.
|
| [90] |
The judgment of the district court is Affirmed.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [91] |
*fn1 HHS has recently renamed PROs as Quality Improvement
Organizations, and has changed the name of HCFA to the Centers for
Medicare & Medicaid Services. See 67 Fed. Reg. 36,539 (May 24, 2002);
66 Fed. Reg. 35,437 (July 5, 2001). For convenience, this opinion will
continue to use the PRO/HCFA terminology, following the practice of the
parties and of the district court.
|
| [92] |
*fn2 HCFA's model letter states: We have carefully examined
your concern(s) and conducted a thorough review of the medical records
pertaining to the services that (you or name of beneficiary) received.
Federal regulations prohibit us from releasing information that identifies
the involved practitioner without his or her consent. Because the involved
practitioner did not give (his or her) consent, we are unable to release
information that would explicitly or implicitly identify him/her. This
does not necessarily mean that we found a problem with the services (you
or name of beneficiary) received. However, we will take appropriate action
if warranted by our review findings. PRO Manual, Ex. 5-17 (italics added;
underlining in original).
|
| [93] |
*fn3 The manual instructs the PRO to write the complainant
and: (i) "Assure that you conducted a complete review of the medical
records and thoroughly examined all issues raised by the complainant";
(ii) "Explain that you are unable to provide any information that
explicitly or implicitly identifies the involved practitioner because
applicable regulations prohibit the release of such information without
the practitioner's consent"; (iii) "Explain that your inability to
disclose information that explicitly or implicitly identifies the involved
practitioner does not mean that you found any problem with the care
furnished"; and (iv) "Assure that even though you are unable to disclose
information that ... identifies the involved practitioner, you are taking
necessary action if your review warrants it." PRO Manual §
5030(C).
|
| [94] |
*fn4 See HCFA, Medicare Peer Review Organization Manual
Transmittal 76 § 5030(C) (Sept. 1999) (J.A. 99-100); HCFA, Medicare Peer
Review Organization Manual Transmittal 41 § 5250(B) (Oct. 1994) (J.A.
116); HCFA, Medicare Peer Review Organization Manual Transmittal 27 §
5045(B) (1990) (J.A. 127).
|
| [95] |
*fn5 See also Power v. Barnhart, 292 F.3d 781, 785-86 (D.C.
Cir. 2002) (noting the government's concession that Chevron did not apply
to the Social Security Administration's Hearings, Appeals and Litigation
Law Manual); American Fed'n of Gov't Employees v. Veneman, 284 F.3d 125,
129 (D.C. Cir. 2002) (holding that the model meat inspection program at
issue there had "no more status than opinion letters, policy statements,
agency manuals, and enforcement guidelines, all of which are undeserving
of Chevron deference").
|
| [96] |
*fn6 We further held in Bowen that "any contract provisions
that are legislative are subject to [5 U.S.C.] § 553's notice and comment
requirements." Id. at 1054. To our knowledge, none of the manual
provisions at issue here has been subjected to notice and
comment.
|
| [97] |
*fn7 See PRO Manual § 5000 (stating that "42 CFR 480.32
addresses disclosure of information about practitioners, reviewers, and
institutions," and that "[t]he regulations also limit your ability to give
specifying details about a complaint review"); id. § 5035 ("[D]isclosure
of PRO quality review information is governed by federal confidentiality
regulations at 42 CFR Part 480.").
|
| [98] |
*fn8 See PRO Manual § 5030(C) ("Explain that you are unable
to provide any information that explicitly or implicitly identifies the
involved practitioner because applicable regulations prohibit the release
of such information without the involved practitioner's consent."
(emphasis added)); id. Ex. 5-17 (model letter, noting that "[f]ederal
regulations" bar release of the information).
|
| [99] |
*fn9 Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275,
287 n.5 (1978) (stating that "the mere promulgation of a regulation,
without a concomitant exegesis of the statutory authority for doing so,
obviously lacks `power to persuade' as to the existence of such
authority"); SEC v. Sloan, 436 U.S. 103, 118 (1978) (reaching the same
conclusion "where this Court can only speculate as to the Commission's
reasons for reaching the conclusion that it did" because the agency's
orders did not "address[ ] in any detail the statutory authorization under
which it took [the] action").
|
| [100] |
*fn10 Compare Appellants' Br. at 16 (arguing that the
statute should be "read as permitting a PRO ... to inform the complainant
... that the complaint was received, that it was investigated, and that
corrective action was taken if appropriate" (emphasis
added)).
|
| [101] |
*fn11 See also Administrative Procedure Act § 1(6), 5
U.S.C. § 551(6) (defining "order" as "the whole or a part of a final
disposition"); 42 U.S.C. § 405(j)(6) (requiring the Social Security
Commissioner to report to Congress on the "final disposition," "including
any criminal penalties imposed," of certain restitution cases); 42 U.S.C.
§ 3759(b)(1) (requiring the improvement of criminal justice records by
"complet[ing] ... criminal histories to include the final dispositions of
all arrests for felony offenses"); 29 U.S.C. § 794a (describing remedies
for an employee "aggrieved by the final disposition of [a Rehabilitation
Act] complaint"); 42 U.S.C. § 2000e-16(c) (same for federal employee
"aggrieved by the final disposition of his [EEOC]
complaint").
|
| [102] |
*fn12 Cf. FED. R. APP. P. 21(b)(7) (directing the appeals
court's clerk to "send a copy of the final disposition" to the trial court
judge when the appellate court decides a petition for mandamus); FED. R.
APP. P. 28 (requiring that appellant's brief contain "a statement of the
case briefly indicating ... the disposition below").
|
| [103] |
*fn13 See Pub. L. No. 101-508 § 4205(d)(1)(A), 104 Stat.
1388 (1990). No similar provision existed in 1986, when § 1320c-3(a)(14)
was enacted. See 42 U.S.C. § 1320c-3 et. seq. (1982 & Supp. IV
1986).
|
| [104] |
*fn14 See, e.g., 42 U.S.C. § 1320c-3(e)(3)(A)(ii) (1982
& Supp. IV 1986) (requiring a PRO that has reviewed a hospital's
denial of inpatient care to provide the patient with "notice" of the
"results of the review"), repealed by Pub. L. No. 106-554 § 521(c), 114
Stat. 2763 (2000); 42 U.S.C. § 1320c-3(a)(9)(B) (requiring a PRO that
finds a care deficiency to notify the appropriate state licensing boards
of its "finding and of any action taken as a result of the finding"); id.
§ 1320c-3(a)(6)(B)(ii) (directing each PRO to "publish" and "distribute" a
report that includes its "findings with respect to the types of cases in
which [it] has frequently determined" that services did not meet
professionally recognized standards or were otherwise
improper).
|
| [105] |
*fn15 See also Tyler v. Cain, 533 U.S. 656, 663 n.4 (2001)
(describing "holdings" as including "the final disposition of a case as
well as the preceding determinations necessary to that result " (internal
quotation marks and emphasis omitted; emphasis added)); Green v. Bock
Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring)
(describing a particular statutory interpretation both as "an absurd, and
perhaps unconstitutional result" and as "an unthinkable
disposition").
|
| [106] |
*fn16 Application of the canon to the use of the word
"findings" is further problematic because the sections that contain it
were not enacted until after § 1320c-3(a)(14) became part of the PRO
statute in 1986. See Pub. L. No. 101-508 § 4205(d)(1), 104 Stat. 1388
(1990) (enacting 42 U.S.C. § 1320c-3(a)(9)(B)); Pub. L. No. 100-203 §
4094(c), 101 Stat. 1330 (1987) (enacting 42 U.S.C. §
1320c-3(a)(6)(B)(ii)).
|
| [107] |
*fn17 The referenced sections, § 1320c-3(a)(1)(B) and §
1320c-5(a)(2), contain general delegations of authority to PROs to conduct
quality of care reviews.
|
| [108] |
*fn18 It is also questionable whether a section like §
1320c-9(d), which was enacted four years after § 1320c-3(a)(14), can be
used to constrain the meaning of the earlier provision. There is certainly
no ground for believing that § 1320c-9(d) repealed § 1320c-3(a)(14), even
partially. See County of Yakima v. Confederated Tribes & Bands of the
Yakima Indian Nation, 502 U.S. 251, 262 (1992) ("[I]t is a cardinal rule
that repeals by implication are not favored." (internal quotation marks
omitted)).
|
| [109] |
*fn19 Compare 5 U.S.C. § 552(b)(6) (FOIA exemption for
"personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy"),
with id. § 552a(d)(1) (Privacy Act requirement that an agency permit an
individual access "to his record or to any information pertaining to
him"). See Wren v. Harris, 675 F.2d 1144, 1146 (10th Cir. 1982) ("[T]he
[Privacy Act] provides rights to the individual with respect to his own
records greater than the rights of the public generally.").
|
| [110] |
*fn20 While we have no occasion to decide the issue here,
we note that the fact that the results of a PRO's reviews must be
disclosed to a beneficiary pursuant to § 1320c-3(a)(14) does not
necessarily mean that they are admissible against a practitioner in civil
litigation.
|
| [111] |
*fn21 See also Alexander v. Sandoval, 532 U.S. 275, 292
(2001) (noting that "we recently criticized Curran 's reliance on
congressional inaction, saying that `[a]s a general matter ... [the]
argumen[t] deserve[s] little weight in the interpretive process' "
(quoting Central Bank of Denver v. First Interstate Bank of Denver, 511
U.S. 164, 187 (1994))).
|
| [112] |
*fn22 See Brown v. Gardner, 513 U.S. 115, 121 (1994)
(holding that where "there is no ... evidence to suggest that Congress was
even aware of the [agency's] interpretive position[,] ... we consider ...
re-enactment to be without significance" (quotation marks
omitted)).
|
| [113] |
*fn23 See Unified Agenda, 58 Fed. Reg. 56,355, 56,355
(Oct. 25, 1993) (mentioning 1989 proposed rule).
|
| [114] |
*fn24 See Unified Agenda, 63 Fed. Reg. 21,989, 21,996
(Apr. 27, 1998) (announcing that HCFA was considering issuing a proposed
rule that "would permit the disclosure of PRO information about physicians
... without their permission to the extent necessary to comply with
section 1154(a)(14) of the Social Security Act [42 U.S.C. §
1320c-3(a)(14)]," and noting that "[t]his section requires PROs to conduct
reviews of beneficiary complaints about the quality of services ... and
inform each beneficiary of the final disposition of his or her
complaint"); 63 Fed. Reg. 61,735, 61,737 (Nov. 9, 1998) (referencing same
rule); 64 Fed. Reg. 64,411, 64,424 (Nov. 22, 1999) (same); 65 Fed. Reg.
73,838, 73,844 (Nov. 30, 2000) (same); 66 Fed. Reg. 25,466, 25,468 (May
14, 2001) (noting withdrawal of 1998 proposed rule as of February 13,
2001).
|
| [115] |
*fn25 We agree with the government that the PRO Act
delegated policymaking authority to the Secretary and not to the OIG. We
cite the OIG's views -- supported, as they are, by that Office's
experience and expertise -- not because they legally command our
deference, but because we find them logically persuasive.
|
| [116] |
*fn26 The district court also held invalid those of
"HCFA's regulations" that prohibit such disclosures. 151 F. Supp. 2d at
77. As noted in Part I.A, however, the agency's confidentiality
regulations incorporate the statutory exception for disclosures "necessary
to carry out the purposes" of the PRO statute. 42 U.S.C. § 1320c-9(a); see
42 C.F.R. § 480.103(b)(1). Because the disclosures required by §
1320c-3(a)(14) fall within this exception, see supra Part III.B, that
portion of the district court's decision is without
effect.
|