Burwell

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The issue in this case is whether Kaiser must pay for emergency care provided to its Medicare enrollee by an out-of-network hospital until the treating physician determines the enrollee is stable to be transferred even if Kaiser believes the physician was mistaken. The dispute centers on the governing Medicare regulation which provides: “[t]he physician treating the en-rollee must decide when the enrollee may be considered stabilized for transfer or discharge, and that decision is binding on *900 the' • MA organization.” ' 42 C.F.R. § 422.113 (b)(3). The Secretary of Health & Human Services construes this regulation as making the treating physician’s determination binding on Kaiser, effectively fixing Kaiser’s financial responsibility. Kaiser contends that the Secretary has misinterpreted its own regulation, and that the treating'physician’s determination is subject to review; the Secretary’s interpretation would violate Kaiser’s Fifth Amendment right against Takings and Due Process. For the reasons stated herein, the Court finds Kaiser’s arguments…