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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 4, 2002 Decided June 20, 2003
No. 01-5294
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
Consolidated with
01–5298
Appeals from the United States District Court
for the District of Columbia
(No. 00cv00731)
G. Michael Harvey, Assistant U.S. Attorney, argued the
cause for appellants. With him on the briefs were Roscoe C.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard, Jr., U.S. Attorney, R. Craig Lawrence, Assistant
U.S. Attorney, Alex M. Azar II, General Counsel, U.S. De-
partment of Health & Human Services, and Henry R.
Goldberg, Deputy Associate General Counsel.
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.
Amanda Frost argued the cause for appellee. With her on
the brief was Allison Zieve. Brian Wolfman entered an
appearance.
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.
Before: EDWARDS, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by GARLAND, Circuit Judge.
GARLAND, Circuit Judge: 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 TTT of the organization’s final disposi-
tion of the complaint.’’ 42 U.S.C. § 1320c–3(a)(14). Accord-
ing 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 com-
plainant a form letter that merely states that the PRO has
examined the complainant’s concerns and that it will take
appropriate action if warranted.1 Indeed, if the complainant’s
health care practitioner objects to the PRO providing infor-
1 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.
3
mation that explicitly or implicitly identifies the practitioner,
HCFA bars the PRO from saying anything more.
We conclude that the statutory command to inform a
complainant of the ‘‘final disposition’’ of the complaint re-
quires more than what HCFA currently permits. At a
minimum, it requires the organization to notify the complain-
ant 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 benefi-
ciaries.
I
A
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 li-
censed doctors ‘‘engaged in the practice of medicine or sur-
gery in the area.’’ 42 U.S.C. § 1320c–1. HCFA contracts
with PROs to review the quality, reasonableness, and efficien-
cy of medical services provided under Medicare, as well as to
determine whether the services provided are within Medi-
care’s statutory coverage. Id. § 1320c–3(a)(1); see also id.
§ 1395y(g).
Section 1320c–3(a)(1) of the statute requires each PRO to
‘‘review some or all of the professional activities’’ of physi-
cians 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:
Any data or information acquired by any such organiza-
tion in the exercise of its duties and functions shall be
held in confidence and shall not be disclosed to any
4
person except—(1) to the extent TTT 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 provid-
ers of health care, or (3) in accordance with [provisions
permitting specified disclosures to federal and state
agencies].
42 U.S.C. § 1320c–9(a).
On April 17, 1985, pursuant to the delegation of authority
contained in § 1320c-(9)(a)(2), HCFA issued regulations de-
fining ‘‘confidential information’’ to include: ‘‘(1) Information
that explicitly or implicitly identifies an individual patient,
practitioner or reviewer[;] (2) Sanction reports and recom-
mendations[;] (3) Quality review studies which identify pa-
tients, practitioners or institutions[; and] (4) PRO delibera-
tions.’’ 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 re-
viewer with the consent of that practitioner or reviewer
provided that the information does not identify other individu-
als.’’ Id. § 480.133(a)(2)(iii). The regulations became effec-
tive 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).
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:
The organization shall conduct an appropriate review of
all written complaints about the quality of services TTT
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 TTT
(or a person acting on the individual’s behalf). The
5
organization shall inform the individual (or representa-
tive) of the organization’s final disposition of the com-
plaint. Before the organization concludes that the quali-
ty 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.
42 U.S.C. § 1320c–3(a)(14) (emphasis added). HHS has not
promulgated any regulation that implements or addresses
§ 1320c–3(a)(14).
B
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 investi-
gate and respond to his concerns about the quality of care
that his wife had received.
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. Thur-
man, 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 Organi-
zation Manual for use in situations ‘‘[w]hen the involved
practitioner consents to disclosure of information that identi-
fies him/her.’’ HCFA, Medicare Peer Review Organization
Manual Transmittal 84, Ex. 5–17 (Dec. 21, 2000) [hereinafter
PRO Manual].
The letters concerning Drs. Dedman and Jolgren, by con-
trast, advised Mr. Shipp that, because those doctors did not
6
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:
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 phy-
sician 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.
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 infor-
mation that explicitly or implicitly identifies him/her,’’ PRO
Manual, Ex. 5–17,2 and follows the instructions contained in
the manual’s narrative sections.3 PRO manuals since 1990
2 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 identi-
fies the involved practitioner without his or her consent. Be-
cause 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 ac-
tion if warranted by our review findings.
PRO Manual, Ex. 5–17 (italics added; underlining in original).
3 The manual instructs the PRO to write the complainant and: (i)
‘‘Assure that you conducted a complete review of the medical
7
have expressed a similar nondisclosure policy.4
C
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 com-
plaint. 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 nonconsenting practitioner; and (ii) to direct
the defendants to retract those manual provisions and inform
PROs that they must disclose the results of their investiga-
tions. First Am. Compl. at 4–5 (J.A. 35–36).
On cross-motions for summary judgment, the district court
found it clear from ‘‘ ‘the history, structure, and underlying
policy purpose of the statute’ TTT that § 1320c–3(a)(14) re-
quires a PRO to inform beneficiary complainants of the
substantive disposition of the complaint.’’ Public Citizen,
Inc. v. Department of Health & Human Servs., 151 F. Supp.
records and thoroughly examined all issues raised by the complain-
ant’’; (ii) ‘‘Explain that you are unable to provide any information
that explicitly or implicitly identifies the involved practitioner be-
cause 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 TTT identifies the involved
practitioner, you are taking necessary action if your review war-
rants it.’’ PRO Manual § 5030(C).
4 See HCFA, Medicare Peer Review Organization Manual Trans-
mittal 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 Man-
ual Transmittal 27 § 5045(B) (1990) (J.A. 127).
8
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.
II
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 gov-
erned 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 admin-
isters, 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.
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 investi-
gation. 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 con-
siderable merit in the district court’s view of congressional
9
intent. For the reasons discussed below, however, we need
not (and therefore do not) rest our decision on Chevron’s first
step.
Nor do we rely on the second step of Chevron. As the
Supreme Court has recently held, not all statutory interpreta-
tions 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 TTT the agency interpretation claiming deference was
promulgated in the exercise of that authority.’’ 533 U.S. at
226–27.
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 Secre-
tary has not promulgated any regulation that interprets or
even mentions § 1320c–3(a)(14). The only potentially rele-
vant 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; Acqui-
sition, 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’ inter-
pretation 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 regula-
tion that did not address statutory issue).
10
The only agency pronouncement upon which the defen-
dants’ 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 interpreta-
tions 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 Servs. 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).5
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
5 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 en-
forcement guidelines, all of which are undeserving of Chevron
deference’’).
11
‘‘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 interpre-
tive 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.
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. Ap-
pellants’ 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 indepen-
dent contractor hired to construct a government building, the
PRO carries out a task for pay at the behest of the govern-
ment.’’).6 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 Chev-
ron deference into a more exalted status merely by mention-
ing them in such a contract. Cf. J.A. 131 (sample PRO
contract, requiring PRO to adhere to ‘‘the Code of Federal
Regulations, TTT the PRO Manual, and other administrative
directives’’ (emphasis added)). Indeed, according Chevron
deference would be particularly inappropriate in this case be-
cause 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.
Finally, even if we were prepared to accord Chevron defer-
ence to the PRO Manual, that document contains no interpre-
6 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.
12
tation 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 bene-
ficiaries or their designated representatives of the final dispo-
sition 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 confi-
dentiality regulations promulgated before § 1320c–3(a)(14)
appeared on the scene.7 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
preexisting confidentiality regulations.8 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.9
7 See PRO Manual § 5000 (stating that ‘‘42 CFR 480.32 addresses
disclosure of information about practitioners, reviewers, and institu-
tions,’’ and that ‘‘[t]he regulations also limit your ability to give
specifying details about a complaint review’’); id. § 5035 (‘‘[D]isclo-
sure of PRO quality review information is governed by federal
confidentiality regulations at 42 CFR Part 480.’’).
8 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 con-
sent.’’ (emphasis added)); id. Ex. 5–17 (model letter, noting that
‘‘[f]ederal regulations’’ bar release of the information).
9 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’’
13
Although Chevron deference is unwarranted, HCFA’s in-
terpretation 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 interpreta-
tions are ‘‘ ‘entitled to respect’ TTT, but only to the extent that
those interpretations have the ‘power to persuade’ ’’ (quoting
Skidmore, 323 U.S. at 140)).
III
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.
A
‘‘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 sup-
portive 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’’);
because the agency’s orders did not ‘‘address[ ] in any detail the
statutory authorization under which it took [the] action’’).
14
BLACK’S LAW DICTIONARY 423 (5th ed. 1979) (defining ‘‘disposi-
tion’’ as the ‘‘[a]ct of disposing’’).
We note at the outset that even if this were the appropriate
definition of ‘‘final disposition,’’ the PRO Manual’s instruc-
tions 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).10
But we are not, in any event, persuaded by HCFA’s
construction. To the contrary, the far more persuasive read-
ing 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, deci-
sion, TTT final settlement of a matter, finding, order, pro-
nouncement, TTT resolution, settlement, [and] solution’’);
BLACK’S LAW DICTIONARY 484 (7th ed. 1999) (‘‘[a] final settle-
ment or determination’’).11 The context that comes quickest
10 Compare Appellants’ Br. at 16 (arguing that the statute should
be ‘‘read as permitting a PRO TTT to inform the complainant TTT
that the complaint was received, that it was investigated, and that
corrective action was taken if appropriate’’ (emphasis added)).
11 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 crimi-
nal penalties imposed,’’ of certain restitution cases); 42 U.S.C.
15
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 DICTIO-
NARY 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.12 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 complain-
ant ‘‘of’’ the final disposition, not simply ‘‘when’’ that disposi-
tion has taken place.
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 TTT 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
§ 3759(b)(1) (requiring the improvement of criminal justice records
by ‘‘complet[ing] TTT criminal histories to include the final disposi-
tions of all arrests for felony offenses’’); 29 U.S.C. § 794a (describ-
ing 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’’).
12 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 TTT the disposition below’’).
16
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 TTT 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.’’
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, con-
tains its own due process provision, permitting such notifica-
tion 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 notifica-
tion required by that section, but merely to duplicate protec-
tions that § 1320c–3(a)(9)(B) already provides as prerequi-
sites 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,13 it simply
is not possible that the third sentence of § 1320c–3(a)(14) was
intended to provide due process protections for the not-yet-
enacted notification requirement of § 1320c–3(a)(9)(B).
13See 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).
17
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 ‘‘quali-
ty of the services’’ that the recipient received met ‘‘profession-
ally recognized standards of health care.’’ 42 U.S.C.
§ 1320c–3(a)(14).
B
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 interpreta-
tion of the section is inconsistent with the statutory scheme.
We find no such inconsistency.
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:
Any data or information acquired by any such organiza-
tion 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 TTT 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 provid-
ers of health care, or (3) in accordance with [provisions
permitting specified disclosures to federal and state
agencies].
42 U.S.C. § 1320c–9(a) (emphasis added).
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 Secre-
tary to impose his own nondisclosure requirements; rather, it
authorizes the Secretary to promulgate regulatory exceptions
to the general nondisclosure requirement. Other exceptions
18
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 speci-
fied in § 1320c–3(a)(14), a disclosure made pursuant to that
section cannot fairly be said to abrogate the statutory
scheme.
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 find-
ings,’’ by using either of those two words rather than ‘‘dispo-
sition.’’ Appellants’ Br. at 19 (emphasis added).14
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’’).15 And
14 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 ‘‘pub-
lish’’ and ‘‘distribute’’ a report that includes its ‘‘findings with
respect to the types of cases in which [it] has frequently deter-
mined’’ that services did not meet professionally recognized stan-
dards or were otherwise improper).
15 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
19
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.16 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 TTT the
term ‘final disposition’ should be limited to nothing more than
a procedural fact.’’ Id.
The government’s third contention is that requiring disclo-
sure 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 con-
tained in § 1320c–9(d), which was enacted four years after
§ 1320c–3(a)(14) and reads as follows:
No document or other information produced by such an
organization in connection with its deliberations in mak-
ing determinations under section 1320c–3(a)(1)(B) or
1320c–5(a)(2) TTT shall be subject to subpoena or discov-
ery in any administrative or civil proceedingTTTT
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 un-
thinkable disposition’’).
16 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)).
20
42 U.S.C. § 1320c–9(d).17 The government argues that
§ 1320c–9(d) bars disclosure of any document produced by a
PRO ‘‘in connection with its deliberations,’’ and further ar-
gues that the complaint response contemplated by the district
court constitutes just such a document.
It is plain on the face of this section, however, that the
district court’s interpretation of § 1320c–3(a)(14) cannot ‘‘nul-
lify’’ § 1320c–9(d), because the latter has no application to a
document that is disclosed pursuant to § 1320c–3(a)(14).18
Section 1320c–9(d) expressly protects the described docu-
ments against being subject to ‘‘subpoena or discovery.’’ It
does not insulate them from compliance with the statutory
command of § 1320c–3(a)(14).
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 contem-
plated 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 docu-
ment nor the consent of the practitioner as a factor in its
vulnerability to subpoena. It simply states that ‘‘no’’ docu-
ment ‘‘produced by such an organization in connection with its
deliberations’’ is subject to discovery. 42 U.S.C. § 1320c–9(d)
(emphasis added).
17 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.
18 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)).
21
Nor is the logical difficulty of the government’s construc-
tion limited to the disclosure required by § 1320c–3(a)(14).
That section is just one of several mandating specific disclo-
sures. 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 ex-
ceptions 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.
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 Free-
dom 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.19 Moreover, al-
19 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.’’).
22
though ‘‘[d]iscovery limitations’’ may generally bar the pro-
duction 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).20
In sum, we find no inconsistency between the requirement
that a PRO advise a complainant of the results of his com-
plaint and the remainder of the PRO statute. To the con-
trary, such a requirement is very much in keeping with the
legislative scheme.
C
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 particu-
larly productive, there is another element of the legislative
history that is helpful.
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 TTT 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 re-
quirement 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
TTT that the organization has received the complaint and will
take appropriate action.’’ S. 2706, 99th Cong. § 633(b)(1)
20 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 litiga-
tion.
23
(1986). Public Citizen contends that the absence of this
language from the enacted version indicates Congress’ rejec-
tion of purely procedural notice.
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 con-
templated 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 dele-
tion of the Senate provision requiring notification that the
PRO ‘‘has received’’ the complaint would not by itself demon-
strate 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.’’
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 informa-
tion. The Conference Committee explained the final confer-
ence agreement as follows: ‘‘If a PRO makes a final determi-
nation 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 TTT 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.
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
24
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 interpret-
ing that section to require nothing more than procedural
notification, Congress’ failure to statutorily reverse that inter-
pretation demonstrates its implicit concurrence.
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 recog-
nized congressional acquiescence to administrative interpreta-
tions of a statute in some situations, we have done so with
extreme care.’’).21 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 amend-
ments). 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,
TTT [i]t is impossible to assert with any degree of assurance
that congressional failure to act represents affirmative con-
gressional 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)).
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,’’
21 See also Alexander v. Sandoval, 532 U.S. 275, 292 (2001)
(noting that ‘‘we recently criticized Curran’s reliance on congres-
sional inaction, saying that ‘[a]s a general matter TTT [the] argu-
men[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))).
25
Thompson v. Clifford, 408 F.2d 154, 164 (D.C. Cir. 1968)
(internal quotation marks omitted), the government’s argu-
ment has little weight absent some evidence of (or reason to
assume) congressional familiarity with the administrative in-
terpretation at issue.22 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’’ exist-
ed at all, it would have to have been teased out of the model
letter and instructions buried deep within the PRO Manual.
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 professional-
ly recognized standards of health care, and, if not, the correc-
tive 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,
22 See Brown v. Gardner, 513 U.S. 115, 121 (1994) (holding that
where ‘‘there is no TTT evidence to suggest that Congress was even
aware of the [agency’s] interpretive position[,] TTT we consider TTT
re-enactment to be without significance’’ (quotation marks omit-
ted)).
26
it remained pending at least through 1993,23 and a similar rule
remained under consideration through 2001; the latter was
not withdrawn until after the institution of this lawsuit.24
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 Con-
gress 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.
D
Finally, the government urges us to consider the congres-
sional purpose underlying the PRO statute. We conclude,
however, that the argument based on legislative purpose cuts
strongly against the government’s position.
The government points to the various confidentiality provi-
sions of the statute, and argues that they were intended both
23 See Unified Agenda, 58 Fed. Reg. 56,355, 56,355 (Oct. 25, 1993)
(mentioning 1989 proposed rule).
24 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 physi-
cians TTT 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 TTT 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).
27
to protect the privacy of health care practitioners and to
assure the confidentiality necessary to encourage practition-
ers 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 excep-
tions, 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 dis-
closure to beneficiaries is no more remarkable than, for
example, the requirement of § 1320c–3(a)(9)(B) that disclo-
sures be made to a physician’s state licensing board.
Moreover, although protecting confidentiality was undoubt-
edly the purpose of the PRO statute’s confidentiality provi-
sions, 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 in-
tended to ‘‘[i]mprove peer review responsiveness to beneficia-
ry complaints.’’ H.R. CONF. REP. NO. 99–1012, at 361 (1986).
Indeed, § 1320c–3(a)(14) is expressly phrased as a require-
ment that the PRO provide information; considerations of
confidentiality are not mentioned at all.
It is hard to see how § 1320c–3(a)(14), if interpreted as the
government suggests, would improve peer review responsive-
ness to beneficiary complaints. HHS’s own Office of Inspec-
tor General (OIG) has concluded that HCFA’s confidentiality
policy ‘‘hinder[s] the PROs’ ability to be responsive to benefi-
ciaries who complain.’’ HHS, OIG, The Beneficiary Com-
plaint 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.
28
2001) (stating that ‘‘current procedures TTT continue to pre-
clude the PROs from responding substantively,’’ resulting in a
deficiency in ‘‘responsiveness’’).25 The government contends
that, even under its limited interpretation, § 1320c–3(a)(14)
‘‘directly improve[s] PRO responsiveness to beneficiary com-
plaints’’ 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
complaintsTTTT ’’). 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) (cita-
tions and internal quotation marks omitted).
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 investi-
gated, 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.
25 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.
29
IV
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 quali-
ty of the services that the recipient received met ‘‘profession-
ally 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 77.26
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 correc-
tive 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 statu-
torily 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 ‘‘dispo-
sition’’ will require HCFA to rethink the kind of notification
26 The district court also held invalid those of ‘‘HCFA’s regula-
tions’’ 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 re-
quired 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.
30
required of PROs, there remains ample room for an adminis-
trative resolution of this question.
The judgment of the district court is
Affirmed.