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Baker v. Banner Health

United States District Court, D. Colorado

June 29, 2015

MARTHA L. BAKER, Plaintiff-Relator,


WILLIAM J. MARTÍNEZ, District Judge.

On June 12, 2015, this Court granted early partial summary judgment to Plaintiff-Relator Martha L. Baker ("Baker"), holding that Defendants Banner Health and Banner Medical Group Colorado (collectively, "Banner") do not satisfy certain Medicare requirements when they have only advanced practice nurses (as opposed to radiation oncologists) supervise radiation therapy treatments for cancer patients. (ECF No. 56.) Before the Court is Defendants' Motion for Reconsideration or, in the Alternative, Certification for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and for Stay of Proceedings (ECF No. 60). For the reasons stated below, this motion is denied.


A. Reconsideration Standard

District Courts have broad discretion to reconsider their interlocutory rulings before the entry of judgment. See Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011) ("[D]istrict courts generally remain free to reconsider their earlier interlocutory orders."). Thus, a court can alter its interlocutory orders even where the more stringent requirements applicable to a motion to alter or amend a final judgment under Rule 59(e) or a motion for relief from judgment brought pursuant to Rule 60(b) are not satisfied. See Laird v. Stilwill, 982 F.Supp. 1345, 1353-54 (N.D. Iowa 1997).

"Notwithstanding the district court's broad discretion to alter its interlocutory orders, the motion to reconsider is not at the disposal of parties who want to rehash old arguments.'" Nat'l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1256 (D. Colo. 2000) (quoting Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995)). "Rather, as a practical matter, to succeed in a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Id. Even under this lower standard, "[a] motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact or presents newly discovered evidence." Id.

B. "Personally Furnish" vs. Prescribe

Banner argues that this Court's prior order "conflates the concept of personally furnishing' a daily dose of external beam radiation therapy with the concept of prescribing' a multi-week course of radiation therapy pursuant to a written directive." (ECF No. 60 at 3.) Banner seems to contend that "personally furnish" is distinct from "prescribe" in the same way that dispensing a prescription is distinct from writing a prescription. ( Id. at 5-7.) The Court believes, however, that 42 C.F.R. § 410.27 requires treating "personally furnish" as synonymous with "prescribe, " at least under Colorado law as it currently stands.

Even if viewed as the delivery of a single daily dose, the "service" for which Medicare will pay must be under the "direct supervision" of a "physician or nonphysician practitioner [who is] immediately available to furnish assistance and direction throughout the performance of the procedure." 42 C.F.R. § 410.27(a)(1)(iv)(A). The Center for Medicare and Medicaid Services ("CMS") has specifically stated that the "direct supervision" requirement can only be met by a "supervisory practitioner or nonphysician practitioner who... [has] the training and knowledge to clinically redirect the service [ i.e., the daily dose, under Banner's theory] or provide additional orders." 75 Fed. Reg. 71800, 72012 (Nov. 24, 2010) (emphasis added). It cannot be met by someone who only has access ( e.g., by phone) "to a specialist who is able to change the plan of care should the need arise." Id. Thus, "direct supervision" must be performed by someone capable of changing the radiation dose.

Returning again to the words of the regulation, "[n]onphysician practitioners may provide the required supervision [ i.e., direct supervision'] of services [ i.e., the daily dose] that they may personally furnish in accordance with State law." 42 C.F.R. § 410.27(a)(1)(iv)(C). As explained in the previous order, nurses in Colorado cannot "personally furnish" (prescribe or change the dose of) radiation therapy, whether a course of therapy or a single dose. (ECF No. 56 at 5-6.)

Without citation, Banner argues that its advanced practice nurses "are qualified by licensure and scope of practice to clinically redirect therapy sessions" in the sense of "deciding not to treat" the patient. (ECF No. 60 at 8.) But even if true, and if (as Banner also contends) the "service" at issue is the daily dose of radiation, then choosing not to deliver a daily dose would be, by definition, choosing not to provide the "service." In that circumstance, Banner would not be seeking payment for the "service" and would not trigger 42 C.F.R. § 410.27 and its supervision requirements.

The Court is not without sympathy for Banner. It appears that most, perhaps all, daily doses of radiation cannot be changed in mid-course, but can only be completely delivered or cut off prematurely. ( Id. at 8-9.) Thus, as the Court stated previously, "Banner's explanation of the practical realities of radiation therapy raises an interesting question about why CMS requires supervision by a highly trained specialist." ( Id. at 10.) Nonetheless, CMS directly addressed this concern and rejected it in the Federal Register commentary quoted above, which Banner has never challenged as, e.g., unworthy of deference. ( See also id. at 9-10.)

For all these reasons, and for those stated in the Court's previous order (ECF No. 56), the Court declines to reconsider its holding that, as applied in Colorado, 42 C.F.R. § ...

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