Shalala

Opinion by Judge HAWKINS; Concurrence by Judge KOZINSKI.

OPINION

This appeal requires us to decide whether a health care provider may seek administrative review of a Medicare cost limit formula, where the provider first challenged that formula in its revised notice of Medicare reimbursement, but had not challenged that same formula in its original notice of reimbursement. We hold that the cost limit formula is not within the scope of administrative review because that formula was not at issue in the revised notice of Medicare reimbursement.

I. BACKGROUND

A. Statutory and Regulatory Framework

Under the Medicare statute, Title XVIII of the Social Security Act, Pub.L. No. 89-97, 79 Stat. 291 (1965)(codified as amended at 42 U.S.C. §§ 1395 to 1395ccc (1988)), the Secretary of Health and Human Services (“Secre *1413 tary”) reimburses health care providers for services provided Medicare patients. Medicare reimbursement is typically handled by “fiscal intermediaries,” such as insurance companies, who make interim payments to health care providers, then determine the proper amount of reimbursement for the entire fiscal year. 42 U.S.C. § 1395h(a). A health care provider seeking…

concurring:

I have no quarrel with the majority’s basic reasoning: 42 U.S.C. § 1395oo(a) doesn’t specifically anticipate revised NPRs and is, thus, ambiguous as to how much of a revised NPR constitutes a “final determination” for purposes of PRRB review. In 42 C.F.R. § 405.1889 , the Secretary has interpreted “final determination” to refer only to the actual revisions made (and, perhaps, those explicitly requested and refused) on reopening. Faced with an ambiguity in the statute and a reasonable agency interpretation, we must defer.

I write separately to point out that the majority errs and, in so doing, creates a potential for confusion and mischief in taking seriously French Hospital’s argument that 42 U.S.C. § 1395oo(d) expands the PRRB’s jurisdiction. Section 1395oo(d) is titled “Decisions of Board” and it does grant the PRRB very broad powers to review cost reports. There’s a big difference, however, between what a reviewing body has power to do once a cost report is properly before it on appeal and what appeals are proper in the first place. Subsection (d) defines the PRRB’s powers only “once it obtains jurisdiction pursuant to subsection (a).” Bethesda Hosp. Ass’n v.…