
    DeSOTO GENERAL HOSPITAL, et al. v. Margaret M. HECKLER, et al.
    No. CA 83-1050-B.
    United States District Court, M.D. Louisiana.
    June 20, 1984.
   POLOZOLA, District Judge.

This matter is before the Court on cross-motions for summary judgment. Oral argument was heard on these motions on December 14, 1983.

The Court finds that the regulation regarding reimbursement for malpractice costs (the “Malpractice Rule”), § 405.-452(b)(l)(ii), promulgated by the Secretary of Health, Education, and Welfare (now the Department of Health and Human Services), is arbitrary and capricious under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). The Court adopts the reasoning set forth in Lloyd Noland Hospital and Clinic v. Heckler, 619 F.Supp. 1 (N.D.Ala. 1984); Bedford County Memorial Hospital v. Heckler, 583 F.Supp. 367 (W.D.Va.1984); St. James Hospital v. Heckler, 579 F.Supp. 757 (N.D.Ill.1984); Abington Memorial Hospital v. Heckler, 576 F.Supp. 1081 (E.D.Pa.1983), and Mt. Carmel Mercy Hospital v. Heckler, 581 F.Supp. 1311 (E.D.Mich.1983).

The Court expresses no opinion at this time as to whether or not the regulation was promulgated in a manner inconsistent with the notice and comment procedures of the APA, 5 U.S.C. § 553.

In addition, the Court does not reach the question of whether the Malpractice Rule is substantively invalid because the rule fails to reimburse reasonable costs and allegedly results in the shifting of Medicare costs to non-Medieare patients.

The Court reserves the right to assign additional written reasons at a later date.

Therefore:

IT IS ORDERED that the plaintiffs’ motion for summary judgment be, and it is hereby GRANTED.

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment be, and it is hereby DENIED.

IT IS FURTHER ORDERED that this matter be, and it is hereby remanded to the Secretary for further consideration in accordance with this opinion.

IT IS FURTHER ORDERED that judgment shall be entered accordingly.  