Filed: Oct. 17, 2002
Latest Update: Feb. 22, 2020
Summary: At the end of the paragraph on page 11, line 2, add new, footnote 4. In, these matters, the Board, relying in large, part on the district court's opinion in this, case, rejected the Secretary's interpretation, of the new provider exemption. v., Shalala, 130 F.3d 845, 850-51 (9th Cir.
United States Court of Appeals
For the First Circuit
No. 02-1284
SOUTH SHORE HOSPITAL, INC., D/B/A SOUTH SHORE HOSPITAL
TRANSITIONAL CARE CENTER,
Petitioner, Appellee,
v.
TOMMY G. THOMPSON, SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent, Appellant.
ERRATA SHEET
The opinion of this Court issued on October 16, 2002 is
corrected as follows:
1. At the end of the paragraph on page 11, line 2, add new
footnote 4.
4.After this opinion had gone to the printers,
a divided panel of the Fourth Circuit issued a
contrary decision on a case very similar to
this one. Md. Gen. Hosp., Inc. v. Thompson,
No. 01-2012, 2002 WL 31254029 (4th Cir. Oct.
9, 2002) (rejecting Paragon and holding the
Secretary's interpretation of 42 C.F.R. §
413.30(e)(2) to be inconsistent with what it
deemed to be the regulation's unambiguous
language). We have given that opinion careful
consideration but find it unpersuasive.
2. Replace former footnote 5 (which will now be footnote 6),
on page 16, with the following:
6.The Hospital and the Secretary have called
to our attention through successive post-
argument letters, see Fed. R. App. P. 28(j);
1st Cir. R. 28(j), the Board's recent
decisions in four other cases, including Mercy
Med. SNF v. Mut. of Omaha Ins. Co., No. 97-
0135, 2002 WL 1906219 (PRRB Aug. 7, 2002). In
these matters, the Board, relying in large
part on the district court's opinion in this
case, rejected the Secretary's interpretation
of the new provider exemption. See, e.g., id.
at *17. However, the Secretary, exercising
his discretion under 42 U.S.C. § 1395oo(f)(1),
subsequently granted reconsideration and
reversed the Board's determination in Mercy
Med. See Mercy Med. SNF v. Mut. of Omaha Ins.
Co., No. 2002-D31 (CMS Admin. Oct. 8, 2002)
(citing Paragon, 251 F.3d at 1150-51, with
approval). We presume that the Secretary will
reverse the other three Board decisions in due
course. Consequently, we cede deference to
the Secretary's determination, not the
Board's, as the definitive statement of the
agency's position. See 42 U.S.C. §
1395oo(f)(1); see also Anaheim Mem'l Hosp. v.
Shalala, 130 F.3d 845, 850-51 (9th Cir. 1997).
3. Change the numbers of all the succeeding footnotes
accordingly.
