FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOMA LINDA UNIVERSITY MEDICAL
CENTER,
Plaintiff-Appellee, No. 05-56341
v. D.C. No.
MICHAEL O. LEAVITT, Secretary of CV-02-00025-RT
Health and Human Services,
Defendant-Appellant.
LOMA LINDA UNIVERSITY MEDICAL
CENTER,
No. 05-56497
Plaintiff-Appellant,
v. D.C. No.
CV-02-00025-RT
MICHAEL O. LEAVITT, Secretary of
OPINION
Health and Human Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior Judge, Presiding
Argued and Submitted
June 11, 2007—Pasadena, California
Filed July 9, 2007
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Rymer
8199
8202 LOMA LINDA UNIV. MED. CENTER v. LEAVITT
COUNSEL
Susan Maxson Lyons, United States Department of Justice,
Washington, D.C., for defendant-appellant-appellee.
Lloyd A. Bookman, Los Angeles, California, for the plaintiff-
appellee-appellant.
OPINION
RYMER, Circuit Judge:
The main problem presented in these appeals by the Secre-
tary of Health and Human Services (HHS) and Loma Linda
LOMA LINDA UNIV. MED. CENTER v. LEAVITT 8203
University Medical Center, arising from a dispute over reim-
bursement under the Medicare program, is one of statutory
interpretation. The question is whether the Provider Reim-
bursement Review Board has jurisdiction over a Medicare
provider’s appeal of a cost that was allowable under the Medi-
care regulations, but that the provider failed to include in the
cost report submitted to the fiscal intermediary. The Supreme
Court has commented on the issue, but not resolved it;1 and
the First and Seventh Circuits, which have decided it, answer
the question differently.2
We conclude that once the Board acquires jurisdiction pur-
suant to 42 U.S.C. § 1395oo(a)3 over a dissatisfied provider’s
1
Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 404-05 (1988) (holding
that a provider could be “dissatisfied” when it “self-disallowed” a cost,
i.e., it purposefully did not claim it, due to regulations that prohibited it,
but indicating that providers who bypass an exhaustion requirement or fail
to request reimbursement for all costs to which they are entitled under
applicable rules may stand on different ground).
2
Compare St. Luke’s Hosp. v. Sec’y of Health & Human Servs., 810
F.2d 325, 330 (1st Cir. 1987) (holding the Board has jurisdiction and may
decide issues not resolved first by the intermediary), and MaineGeneral
Med. Ctr. v. Shalala, 205 F.3d 493, 500 (1st Cir. 2000) (reaffirming this
holding), with Little Co. of Mary Hosp. & Health Care Ctrs. v. Shalala,
165 F.3d 1162, 1165 (7th Cir. 1999) (holding that intermediaries must get
the first shot). But see St. Mary of Nazareth Hosp. Ctr. v. Dep’t of Health
& Human Servs., 698 F.2d 1337, 1346 (7th Cir. 1983) (holding that com-
pletely omitted matters may be reviewed by the Board given that 42
U.S.C. § 1395oo(d) provides Board review for matters not considered by
the intermediary).
3
Section 1395oo(a) provides, in pertinent part:
Any provider of services which has filed a required cost report
. . . may obtain a hearing with respect to such cost report by a . . .
Board . . . if—
(1) such provider—
(A)(i) is dissatisfied with a final determination of . . . its fis-
cal intermediary . . . as to the amount of total program reim-
bursement due the provider . . .
(2) the amount in controversy is $10,000 or more, and
(3) such provider files a request for a hearing within 180 days
after notice of the intermediary’s final determination . . . .
8204 LOMA LINDA UNIV. MED. CENTER v. LEAVITT
cost report on appeal from the intermediary’s final determina-
tion of total reimbursement due for a covered year, it has dis-
cretion under § 1395oo(d)4 to decide whether to order
reimbursement of a cost or expense that was incurred within
the period for which the cost report was filed, even though
that particular expense was not expressly claimed or explicitly
considered by the intermediary. In this, we join the First Cir-
cuit’s similar view. MaineGeneral Med. Ctr. v. Shalala, 205
F.3d 493 (1st Cir. 2000), reh’g denied, 210 F.3d 420 (1st Cir.
2000); St. Luke’s Hosp. v. Sec’y of Health & Human Servs.,
810 F.2d 325 (1st Cir. 1987). We therefore affirm on the Sec-
retary’s appeal, as well as on Loma Linda’s cross-appeal
which in the main raises issues on which federal jurisdiction
is lacking.
I
As a Medicare provider, Loma Linda University Medical
Center gets repaid for its services by submitting a cost report
to a fiscal intermediary, in this case, Blue Cross of California,
which audits the report and processes reimbursements on
behalf of the Secretary of HHS. Intermediaries calculate the
amount of total reimbursement due to providers and transmit
the results in a “notice of program reimbursement” (NPR). 42
U.S.C. § 1395h(a); 42 C.F.R. §§ 405.1803; 421.100(c). A pro-
vider which has filed a cost report and is “dissatisfied” with
4
Section 1395oo(d) provides:
A decision by the Board shall be based upon the record made at
such hearing, which shall include the evidence considered by the
intermediary and such other evidence as may be obtained or
received by the Board, and shall be supported by substantial evi-
dence when the record is viewed as a whole. The Board shall
have the power to affirm, modify, or reverse a final determination
of the fiscal intermediary with respect to a cost report and to
make any other revisions on matters covered by such cost report
(including revisions adverse to the provider of services) even
though such matters were not considered by the intermediary in
making such final determination.
LOMA LINDA UNIV. MED. CENTER v. LEAVITT 8205
the intermediary’s “final determination . . . as to the amount
of total program reimbursement” may obtain a hearing before
the Provider Reimbursement Review Board (PRRB, Board)
“with respect to such cost report.” 42 U.S.C. § 1395oo(a). The
PRRB’s decision is final unless the Secretary, acting through
the Administrator of the Health Care Financing Administra-
tion (HCFA),5 reverses, affirms, or modifies the decision. Id.
§ 1395oo(f)(1). In either case, the final decision is subject to
judicial review. Id.
Some 20 years ago, Loma Linda inadvertently zeroed out
reimbursable interest expenses in its cost report for the 1985
fiscal year, which it timely filed without any claim for interest
expense. On September 14, 1988, the intermediary issued an
NPR; it included no adjustments for interest expense. Loma
Linda appealed to the Board on March 7, 1989, identifying six
aspects of the intermediary’s determination with which it was
dissatisfied,6 not including interest expense. Eventually realiz-
ing its error, the hospital on May 6, 1996 filed a request with
the Board to add the interest expense issue to its pending appeal.7
Blue Cross contested the Board’s jurisdiction to entertain this
request as there had been no intermediary determination con-
cerning the issue and it was untimely.8 The Board issued a let-
5
We refer to the administrator as HCFA because that is what the entity
which administered the Medicare program was known as at the time.
Now, the administrator is the Centers for Medicare and Medicaid Services.
6
This comported with the regulation at 42 C.F.R. § 405.1841(a)(1),
which provides that a request for Board hearing “must identify the aspects
of the determination with which the provider is dissatisfied, explain why
the provider believes the determination is incorrect in such particulars, and
be accompanied by any documenting evidence the provider considers nec-
essary to support its position.”
7
This also comported with the regulation at 42 C.F.R. § 405.1841(a)(1),
which provides that “[p]rior to the commencement of the hearing proceed-
ings, the provider may identify in writing additional aspects of the inter-
mediary’s determination with which it is dissatisfied and furnish any
documentary evidence in support thereof.”
8
Appeals must be taken within 180 days of notice of the intermediary’s
final determination, 42 U.S.C. § 1395oo(a)(3); and requests to reopen
must be made within three years, 42 C.F.R. § 405.1885(a).
8206 LOMA LINDA UNIV. MED. CENTER v. LEAVITT
ter decision on August 8, 1996 accepting jurisdiction pursuant
to § 1395oo(a)(1) and 42 C.F.R. § 405.1841(a)(1).
All issues but for interest were resolved and the parties stip-
ulated that if the correct income offset had been used in the
1985 cost report, the allowable interest expense would have
been $1,029,279. This left the Board’s jurisdiction as the dis-
positive issue. In a decision filed September 17, 1998, the
Board found that no statutory or regulatory provision makes
an audit adjustment a prerequisite for an appeal or a determi-
nation; the intermediary actually made an audit determination
regarding the offset amount when it accepted the interest
income offset that eliminated the entire interest expense
incurred by Loma Linda; and both the interest expense
incurred and the amount of the offset were covered on the
cost report which was reviewed by the intermediary’s auditor.
In its view, the error was clear and obvious, and should have
been corrected by the intermediary. Thus, the PRRB con-
cluded that jurisdiction was appropriate under § 1395oo(a)
and 42 C.F.R. § 405.1841(a)(1), as well as under § 1395oo(d)
because both the offset amount and the incurred expense were
covered by the cost report even if the intermediary had not
considered the matter. On the merits, the Board found that
Blue Cross had incorrectly determined Loma Linda’s total
reimbursable cost due to the understatement of interest
expense in the amount of $1,029,279.
The HCFA Administrator reversed.9 He found Bethesda
Hospital inapposite as no Medicare law impeded Loma Linda
from properly claiming a portion of the interest expense as
reimbursable on its cost report; a provider cannot be “dissatis-
fied” with an NPR when its cost report did not claim reim-
bursement as to a particular item; therefore, this case “lacks
9
This followed remand for the Board to include the NPR and cost report
in the record and to issue a new decision. The Board again found that it
had jurisdiction and ordered the intermediary to include $1,029,279 in
Loma Linda’s total allowable reimbursable cost.
LOMA LINDA UNIV. MED. CENTER v. LEAVITT 8207
one of the core requirements of Board jurisdiction: provider
dissatisfaction of a program reimbursement determination
made by its Intermediary.” The Administrator further
observed that other routes are available for providers to cor-
rect cost reporting errors. Finally, he noted that § 1395oo(d)
does not itself confer jurisdiction, but rather sets the Board’s
powers and duties after its jurisdiction has properly been
established under § 1395oo(a).
The Administrator’s decision was the agency’s final deci-
sion on the matter, from which Loma Linda sought review in
district court under 42 U.S.C. § 1395oo(f)(1). The court
rejected Loma Linda’s threshold contention that the Secretary
waived his right to review the jurisdictional determination by
ignoring the Board’s pre-hearing determinations, reasoning
that what mattered was the Administrator’s reversal of the
Board’s actual hearing decisions. The court held that the
Administrator’s interpretation of the Medicare Act was arbi-
trary and capricious as it was contrary to the language and
intent of § 1395oo(a). Finally, it refused to reach the merits of
the interest expense issue on the ground that it only had juris-
diction over the final agency decision, i.e., the Administra-
tor’s dismissal of the administrative appeal for lack of
jurisdiction. The district court ordered that the Board’s last
decision be reinstated, subject to the Secretary reviewing the
merits. Both parties have appealed.
II
There is no dispute that § 1395oo(a) is the gateway provi-
sion for Board jurisdiction. Rather, the parties disagree about
what § 1395oo(a) means when it allows a Board hearing for
a provider who is “dissatisfied” with a final determination of
its intermediary. The Secretary’s position is that a provider
cannot be “dissatisfied” with respect to costs for which it
could have claimed reimbursement from its intermediary but
did not. He maintains that the district court failed to recognize
that his interpretation comports with the Supreme Court’s
8208 LOMA LINDA UNIV. MED. CENTER v. LEAVITT
opinion in Bethesda Hospital, and further erred by relying on
§ 1395oo(d) as well as the First Circuit’s reasoning in Maine-
General. Loma Linda, on the other hand, contends that the
Board obtained jurisdiction “with respect to” its 1985 cost
report when it filed an appeal from Blue Cross’s final deter-
mination, and that the PRRB thereafter had power under
§ 1395oo(d) to make revisions to matters covered by that cost
report regardless of whether such matters were considered by
the intermediary.
[1] Mindful of our obligations under Chevron, we cannot
read the statute as the Secretary does. Chevron USA, Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)
(holding that courts owe deference to an agency’s permissible
interpretation of a statute it administers when the statute is
silent or ambiguous with respect to the particular issue). Sec-
tion 1395oo(a) plainly says that a provider, such as Loma
Linda, may obtain a Board hearing with respect to the cost
report when it is dissatisfied with the intermediary’s final
determination of the amount of total reimbursement.10 Section
1395oo(a) does not say that a hearing may be obtained “with
respect to items claimed on the cost report if the provider is
dissatisfied with a final determination of its intermediary as to
the amount of reimbursement due on each claim” — which
the statute would do, in sum or substance, if the Secretary’s
interpretation were plausible.
[2] Loma Linda was undoubtedly “dissatisfied” with Blue
Cross’s final determination of “the total program reimburse-
ment due,” for it appealed. Its appeal was on time and the
10
42 C.F.R. § 405.1801(a) defines the “intermediary determination”
with which a provider must be dissatisfied as “a determination of the
amount of total reimbursement due the provider . . .” This is furnished in
the NPR, which is the “written notice reflecting the intermediary’s deter-
mination of the total amount of reimbursement due the provider.” Id.
§ 405.1803(a); see also Provider Reimbursement Manual, Chapter 29,
§ 2905 (stating than an “NPR is considered the intermediary’s final deter-
mination for purposes of any future appeal rights.”).
LOMA LINDA UNIV. MED. CENTER v. LEAVITT 8209
amount exceeded the jurisdictional minimum. At this point,
the Board had jurisdiction for a hearing that, according to the
clear language of the text, was “with respect to [the 1985] cost
report.” This being so, § 1395oo(d) kicked in. As the Supreme
Court put it, § 1395oo(d) “sets forth the powers and duties of
the Board once its jurisdiction has been invoked.” Bethesda
Hosp., 485 U.S. at 405. Those powers and duties are to base
its decision on the record, which is to include the evidence
considered by the intermediary “and such other evidence as
may be obtained or received by the Board”; to affirm, modify,
or reverse a final determination “with respect to a cost
report”; and to make other revisions “on matters covered by
such cost report . . . even though such matters were not con-
sidered by the intermediary in making such final determina-
tion.” A “matter covered by such cost report” is “a cost or
expense that was incurred within the period for which the cost
report was filed, even if such cost or expense was not
expressly claimed.” Id. at 406; Adams House Health Care v.
Bowen, 862 F.2d 1371, 1375 (9th Cir. 1988) (adopting the
Bethesda Hospital definition). Thus, § 1395oo(d) squarely
allows the Board to modify a final determination based on
evidence that was not considered by the intermediary, and to
make revisions on a cost or expense incurred during the year
being reported even though the cost wasn’t claimed and the
matter wasn’t considered by the intermediary. We cannot see
how Congress could have intended an absolute exhaustion
rule in the face of this explicit power. To the contrary, it
appears to have spoken quite directly to the precise question
and opted for Board discretion to go beyond the record
adduced for, and considered by, the intermediary. So, once
jurisdiction over the 1985 cost report attached, and before a
hearing had been held, Loma Linda could identify additional
aspects of the intermediary’s determination that were covered
in the cost report, and the Board had authority to deal with
them.11
11
See HCA Health Servs. of Okla., Inc. v. Shalala, 27 F.3d 614, 617
(D.C. Cir. 1994) (holding that “once Board jurisdiction pursuant to sub-
section (a) obtains, anything in the original cost report is fair game for a
challenge by virtue of subsection (d).” (emphasis added)).
8210 LOMA LINDA UNIV. MED. CENTER v. LEAVITT
Why this is so was explained in depth by then-Judge Breyer
in St. Luke’s. 810 F.2d at 327-330. We understand the Secre-
tary’s argument that St. Luke’s preceded Bethesda Hospital
and could have been undermined by the Supreme Court’s
rationale, but the First Circuit persuasively rejected this possi-
bility in MaineGeneral. 205 F.3d at 498-500.12
In Bethesda Hospital, the Court resolved a circuit split on
whether a provider could meet the “dissatisfied” prerequisite
of § 1395oo(a) by deliberately failing to seek (“self-
disallowing”) reimbursement for a particular cost on its cost
report that was disallowed by regulation, only to challenge the
regulation before the Board. It held that the plain language of
§ 1395oo(a) gave the Board jurisdiction to hear such a chal-
lenge even though it had not previously been submitted to the
intermediary.13 485 U.S. at 404. However, in a passage upon
which the Secretary relies, the Court noted that providers who
wish to contest a regulation that the intermediary is bound to
follow “stand on different ground” from providers “who fail
to request . . . reimbursement for all costs to which they are
entitled under applicable rules. While such defaults might
well establish that a provider was satisfied with the amounts
12
We recognize that this inevitably makes us part of an already-existing
circuit split between the First and Seventh Circuits. The Seventh Circuit’s
view is that § 1395oo(a), “while curiously worded,” manifests the plain
intent that the provider give the intermediary “a first shot at the issue.” Lit-
tle Co. of Mary, 165 F.3d at 1165. We have not read § 1395oo(a) this way
before, see Adams House, 862 F.2d at 1375-76, and, for reasons we have
explained, we see subsection (a), in conjunction with subsection (d), as the
First Circuit does. In any event, the exhaustion at stake here is internal to
the administrative agency. There is no question that Loma Linda
exhausted its administrative remedies before seeking judicial review.
13
We have also found nothing “puzzling or ambiguous” in the statutory
language, which “plainly requires the Board to consider matters included
in a cost report and timely appealed, even if not expressly claimed before
an intermediary.” Adams House, 862 F.2d at 1376 (applying Bethesda
Hospital to providers who purposely failed to claim costs listed in their
cost report and then challenged the applicable provisions of the Reim-
bursement Manual before the Board).
LOMA LINDA UNIV. MED. CENTER v. LEAVITT 8211
requested in its cost report and awarded by the fiscal interme-
diary, those circumstances are not presented here.” Id. at 404-
05. Although the contrast drawn is supportive of the Secre-
tary’s position, the Court’s obiter dictum stops short of com-
pelling a conclusion that a provider can never claim
dissatisfaction unless it has included an allowable claim in the
cost report. At most it suggests that failing to do so “might
well establish” satisfaction. This is consistent with our inter-
pretation of the interplay between §§ 1395oo(a) and (d) as
conferring discretion on a Board with jurisdiction over a cost
report under § 1395oo(a) to base its decision on evidence or
costs and expenses not claimed by the provider or considered
by the intermediary if the cost or expense were incurred
within the period for which the cost report was prepared. See
Bethesda Hosp., 485 U.S. at 405-06 (finding that its conclu-
sion was required by § 1395oo(a) but was supported by the
design of the statute as a whole as well as by § 1395oo(d), and
observing of § 1395oo(d) that it “allows the Board, once it
obtains jurisdiction pursuant to subsection (a), to review and
revise a cost report with respect to matters not contested
before the fiscal intermediary” so long as the matter is cov-
ered by the cost report).
Nor is our construction inconsistent with French Hospital
Medical Center v. Shalala, 89 F.3d 1411 (9th Cir. 1996), as
the Secretary submits. French Hospital involved post-
reopening review of a final determination in a revised NPR.
We thought it was unclear whether § 1395oo(a) included
revised as well as original NPRs and deferred to the Secre-
tary’s issue-specific interpretation, holding that in the context
of cost report reopening, the Board is constrained by the spe-
cific issues raised. Id. at 1420. This makes sense because, at
that point, a provider should not be able to bootstrap dissatis-
faction with a determination on reopening into a fresh look at
the entire, original NPR. By comparison, we stressed that
“[w]hen a provider appeals an initial NPR under 42 U.S.C.
§ 1395oo(a), the scope of review is quite broad. Once the
8212 LOMA LINDA UNIV. MED. CENTER v. LEAVITT
three jurisdictional prerequisites are satisfied, the PRRB has
jurisdiction to review a broad range of issues.” Id. at 1418.
Likewise, we disagree with the Secretary’s suggestion that
Adams House rejected the First Circuit’s view that Board
jurisdiction is discretionary. What we did there was explain
that the discretionary language in St. Luke’s does not describe
the Board’s power to accept or reject appeals; rather, “[i]t
describes the Board’s options once an appeal is filed.” 862
F.2d at 1375. We are guided by this construct here in holding
that once jurisdiction has been obtained over a cost report
because of a provider’s dissatisfaction with the intermediary’s
final determination of the total reimbursable amount due, the
Board then has discretion to consider evidence that was not
before the intermediary; to affirm, modify or reverse the final
determination; and to revise matters covered in the cost report
that the intermediary did not consider.
Finally, the Secretary urges us to accept his position for
reasons of policy. He is particularly troubled by the prospect
of increased, time-consuming and complicated appeals, skirt-
ing available remedies and time limits, and gamesmanship.
The short answer is that Congress chose to give the Board
wiggle room to decide matters covered by a cost report that
is properly before it which were not explicitly presented to, or
considered by, the intermediary. A longer-term answer is that
the Board may address these or other concerns by making
rules and establishing procedures “necessary or appropriate to
carry out the provisions of [§ 1395oo].” 42 U.S.C.
§ 1395oo(e). And the specter of “placeholder” appeals seems
counter-intuitive; provider economics, sophisticated though
they may be, cannot seriously be enhanced by 20 plus years
delay in resolving disputes over reimbursement.
[3] Consequently, we hold that the Board had jurisdiction
pursuant to § 1395oo(a) for a hearing with respect to Loma
Linda’s 1985 cost report because the provider was dissatisfied
with a final determination by Blue Cross as to the amount of
LOMA LINDA UNIV. MED. CENTER v. LEAVITT 8213
total reimbursement due and other jurisdictional prerequisites
were met. As a hearing had not yet been held when Loma
Linda sought relief on an additional aspect of the intermedi-
ary’s final determination that was covered by the 1985 cost
report, that is, a cost or expense that was incurred within the
period for which the cost report was filed, the Board had dis-
cretion to receive evidence and take action in accord with
§ 1395oo(d) on this matter even though the interest expense
was not expressly claimed and had not been explicitly consid-
ered by the intermediary.
III
A
[4] In its cross-appeal, Loma Linda first asserts that the
Administrator had no authority to reverse the Board’s juris-
dictional decision because the Board circulated a letter ruling
that it had jurisdiction which the Secretary did not review
within the 60 days allowed by § 1395oo(f)(1).14 Aside from
one exception not relevant here, the Administrator “may
review any final decision of the Board, including a decision
under § 405.1873 about the Board’s jurisdiction to grant a
hearing.” 42 C.F.R. § 405.1875(a) (emphasis added). Nothing
in the regulatory framework indicates that a pre-hearing deci-
sion to accept jurisdiction is in any sense “final.” The Board
itself did not treat its letter rulings as final as it made findings
and conclusions concerning jurisdiction in its hearing deci-
14
Section 1395oo(f)(1) states, in relevant part:
A decision of the Board shall be final unless the Secretary, on his
own motion, and within 60 days after the provider of services is
notified of the Board’s decision, reverses, affirms, or modifies the
Board’s decision. Providers shall have the right to obtain judicial
review of any final decision of the Board, or of any reversal,
affirmance, or modification by the Secretary, by a civil action
commenced within 60 days of the date on which notice of any
final decision by the Board or of any reversal, affirmance, or
modification by the Secretary is received.
8214 LOMA LINDA UNIV. MED. CENTER v. LEAVITT
sions. Those decisions triggered the Administrator’s 60-day
window.
B
Before the district court, Loma Linda sought, in addition to
Medicare reimbursement for interest expenses, an award of
interest pursuant to 42 U.S.C. § 1395oo(f)(2).15 The court con-
cluded that its own scope of review was limited to what the
agency actually decided, i.e., the jurisdictional issue, and so
it left the merits and Loma Linda’s request for statutory inter-
est untouched. We agree.
[5] Federal courts “have jurisdiction over Medicare reim-
bursement disputes only to the extent provided by 42 U.S.C.
§ 1395oo.” Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845,
853 (9th Cir. 1997) (citations omitted). Section 1395oo(f)(1)
gives providers “the right to obtain judicial review of any
final decision of the Board, or of any reversal, affirmance, or
modification by the Secretary.” Id. Here, the Secretary’s
reversal was only for lack of jurisdiction; there is no final
decision on the merits that is ripe for judicial review. This is
so even though, as Loma Linda points out, its stipulation with
Blue Cross disposes of the issue of the amount of reimburs-
able interest as between the two of them. The stipulation was
not necessarily binding even at the Board level, as it expressly
acknowledges that the parties could not dictate to the PRRB
what its decision should be. Beyond this, while a fiscal inter-
mediary is, at least for certain functions, an agent of the Sec-
retary, see Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1110
(9th Cir. 2003); Monmouth Med. Ctr. v. Thompson, 257 F.3d
807, 813 (D.C. Cir. 2001) (intermediary, as agent, may be
bound by writ of mandamus against Secretary), and stipula-
15
Section 1395oo(f)(2) states:
Where a provider seeks judicial review . . . the amount in contro-
versy shall be subject to annual interest . . . to be awarded by the
reviewing court in favor of the prevailing party.
LOMA LINDA UNIV. MED. CENTER v. LEAVITT 8215
tions are encouraged, see 42 C.F.R. § 405.1853(a), the Secre-
tary is not necessarily bound by stipulations entered into at the
PRRB hearing by an intermediary. See Howard Young Med.
Ctr., Inc. v. Shalala, 207 F.3d 437, 443 (7th Cir. 2000). In any
event, the critical predicate for judicial review — a final deci-
sion of the Board or a reversal, affirmance, or modification by
the Secretary — is missing.
[6] Loma Linda’s request that it be awarded statutory inter-
est fails for the same reasons. Given the scope of the agency’s
final decision, the district court had no jurisdiction to order
payment of any portion of the amount in controversy, and
therefore, none to award statutory interest. See Riley Hosp. &
Benev. Ass’n v. Bowen, 804 F.2d 302, 305 (5th Cir. 1986)
(“Because there had been no final decision by the Board, the
cost payments for these years were not within the jurisdiction
of the district court . . . . [W]ith no jurisdiction, there can be
no court order compelling the payment of interest.”).
IV
We affirm on the Secretary’s appeal because we conclude
that the Board had jurisdiction over Loma Linda’s 1985 cost
report and, having obtained jurisdiction over it, had power to
decide the issue of interest expense that was incurred during
the period covered by the 1985 report even though that
expense had not been claimed, or considered, by the interme-
diary. We also affirm on Loma Linda’s cross-appeal. The pre-
hearing letters accepting jurisdiction were not final PRRB
decisions that started the 60-day clock for review by the Sec-
retary, and there is no final agency decision on the merits for
purposes of federal court jurisdiction to award reimbursement
for interest expense or statutory interest.
AFFIRMED.