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MASON GEN. HOSP. v. SECRETARY OF DEPT. OF H.H.S.

No. 86-1011.

809 F.2d 1220 (1987)

MASON GENERAL HOSPITAL; Edward W. Sparrow Hospital; Mary Free Bed Hospital; Oaklawn Hospital; Community Health Center; and St. Francis Hospital, Plaintiffs-Appellants, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES; Carolyn K. Davis, Adm'r., Health Care Financing Admin., Defendants-Appellees.

United States Court of Appeals, Sixth Circuit.

Decided January 21, 1987.

Attorney(s) appearing for the Case

Chris Rossman, David A. Ettinger, Todd B. Adams, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., William G. Christopher, argued, Kenneth R. Marcus, for plaintiffs-appellants.

Stuart M. Gerson/Wm. G. Kopit, David H. Larry, Washington, D.C., for amicus curiae.

Martin F. Palus, Asst. U.S. Atty., Grand Rapids, Mich., Ann T. Hunsaker, Asst. Gen. Counsel, Dept. of H.H.S., Edgar C. Morrison, Jr., argued, Washington, D.C., for defendants-appellees.

Before KEITH and GUY, Circuit Judges and EDGAR, District Judge.

RALPH B. GUY JR., Circuit Judge.

This case represents one of a long line of cases challenging the promulgation by the Secretary of Health and Human Services of the 1979 Medicare Malpractice Rule, 42 C.F.R. § 405.452(b)(1)(ii) (subsequently renumbered § 405.452(a)(1)(ii) (1985)) (the 1979 Rule). The procedural history set forth below is complicated but important to our resolution of the issues on appeal.

On March 28, 1983, plaintiff hospitals (the...

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