United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED November 2, 2021 No. 20-10271 Lyle W. Cayce Clerk

Family Rehabilitation, Incorporated, doing business as Family Care Texas, doing business as Angels Care Home Health,

Plaintiff—Appellee,

versus

Xavier Becerra, Secretary, U.S. Department of Health and Human Services; Seema Verma, Acting Administrator for the Centers for Medicare and Medicaid Services,

Defendants—Appellants.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17-CV-454

Before Stewart, Ho, and Engelhardt, Circuit Judges. Per Curiam: Under the Medicare program, the Department of Health and Human Services (“HHS”) can recoup overpayments made to a health care provider. 42 U.S.C. § 1395ddd. A provider can challenge an HHS overpayment determination by pursuing four steps of administrative review, followed by review in federal district court. 42 U.S.C. § 1395ff. The first two steps, 42 Case: 20-10271 Document: 00516078606 Page: 2 Date Filed: 11/02/2021

No. 20-10271

U.S.C. § 1395ff(a)–(c), and the fourth step, 42 C.F.R. § 405.1100 (2017), involve paper hearings, while the third step can include an in-person hearing with the opportunity to have oral testimony and cross-examination, 42 C.F.R.§ 405.1036(c)–(d). The Medicare statute allows HHS to recoup overpayments after the second step of review, and a provider who is successful at a later stage of review can seek repayment at that time. 42 C.F.R. § 405.379(d)(4)–(5). Family Rehabilitation (“Family Rehab”) is currently facing an impending recoupment after two steps of administrative review. Due to significant delays in third step review, Family Rehab brought a procedural due process claim, arguing that it is entitled to third step review before recoupment, because in-person cross-examination and testimony are critical to the resolution of its claim. The district court granted summary judgment in favor of Family Rehab, and entered a permanent injunction barring HHS from recouping the disputed funds until the completion of third step review. In reaching this decision, the district court did not have the benefit of this court’s decision in Sahara Health Care Inc. v. Azar, 975 F.3d 523 (5th Cir. 2020), in which we rejected a similar due process claim under nearly identical facts. Id. at 525. We accordingly reverse. We apply de novo review to a grant of summary judgment, using the same standards as the district court. See, e.g., Petro Harvester Operating Co. v. Keith, 954 F.3d 686, 691 (5th Cir. 2020). We review permanent injunctions for abuse of discretion, but any issue of law underlying that decision is reviewed de novo. See, e.g., BNSF Ry. Co. v. Int’l Ass’n of Sheet Metal, Air, Rail & Transp. Workers – Transp. Div., 973 F.3d 326, 333–34 (5th Cir. 2020). In Sahara, this court found it dispositive that the healthcare provider could not explain why “steps one and two, standing alone, fail to satisfy the

2 Case: 20-10271 Document: 00516078606 Page: 3 Date Filed: 11/02/2021

No