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DESOTO GEN. HOSP. v. HECKLER

No. 84-3577.

766 F.2d 182 (1985)

DESOTO GENERAL HOSPITAL, et al., Plaintiffs-Appellees, v. Margaret M. HECKLER, Secretary of Health and Human Services, et al., Defendants-Appellants.

United States Court of Appeals, Fifth Circuit.

Opinion on Denial of Rehearing August 19, 1985.

Attorney(s) appearing for the Case

Stanford O. Bardwell, U.S. Atty., Joseph G. Simmons, Asst. U.S. Atty., Baton Rouge, La., Barbara C. Biddle, U.S. Dept. of Justice, Anthony J. Steinmeyer, Washington, D.C., Jeanne Schulte Scott, Arlington, Va., for defendants-appellants.

Ronald L. Roland, Ricardo M. Guevara, Baton Rouge, La., Powers, Pyles, Sutter & O'Hare, Ronald N. Sutter, Washington, D.C., for plaintiffs-appellees.

Joseph E. Casson, Thomas H. Brock, Beverly P. Jennison, Washington, D.C., for amicus curiae Brentwood Hosp.

Before GARZA, POLITZ and DAVIS, Circuit Judges.

POLITZ, Circuit Judge:

The Secretary of Health and Human Services appeals a summary judgment invalidating the 1979 medicare regulation known as the Malpractice Rule, now 42 C.F.R. § 405.452(a)(1)(ii) (1984). The district court found the rule arbitrary and capricious, contrary to 5 U.S.C. § 706(2)(A). We modify the judgment and, as modified, affirm.

Facts and Procedural Background

The Malpractice Rule was promulgated by the Secretary...

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