Cupey Bajo Nursing Home, Inc. v. United States

37 Cont. Cas. Fed. 76,133, 23 Cl. Ct. 406, 1991 U.S. Claims LEXIS 256, 1991 WL 110983
CourtUnited States Court of Claims
DecidedJune 19, 1991
DocketNo. 685-89C
StatusPublished
Cited by19 cases

This text of 37 Cont. Cas. Fed. 76,133 (Cupey Bajo Nursing Home, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cupey Bajo Nursing Home, Inc. v. United States, 37 Cont. Cas. Fed. 76,133, 23 Cl. Ct. 406, 1991 U.S. Claims LEXIS 256, 1991 WL 110983 (cc 1991).

Opinion

OPINION

REGINALD W. GIBSON, Judge.

In this contract case, plaintiff, Cupey Bajo Nursing Home, Inc. (Cupey Bajo), seeks to recover $169,905 for an alleged underpayment on a cost-reimbursement contract that it executed with the Veterans Administration (VA or defendant) for hospital services provided to veterans. Thereunder Cupey Bajo was to provide psychiatric care and other treatment for veterans at its inpatient facility in Rio Pedras, Puer-to Rico. The VA argues, however, that Cupey Bajo was not underpaid, but rather, that it actually received $239,730 more than it was entitled to collect under the contract, a “swing” totalling $409,635. Jurisdiction is premised in this court on 28 U.S.C. § 1491.

With respect to the procedural posture of this case, Cupey Bajo alleges, in substance, that it filed a properly certified claim with the contracting officer (CO) for the $169,-905 underpayment pursuant to 41 U.S.C. § 605(c)(1) of the Contract Disputes Act (CDA), and that it also filed an appropriate and timely complaint in the Claims Court as required by the direct access provision contained in 41 U.S.C. § 609(a) of the CDA. In response, the defendant has filed a RUSCC 12(b)(1) motion to dismiss for lack of jurisdiction contending that (i) Cupey Bajo failed to submit a properly certified claim requesting the $169,905 underpayment, and (ii) moreover, it failed to present any claim whatsoever challenging the $239,730 alleged overpayment assessment by the VA.

For the reasons set forth hereinafter, we find that Cupey Bajo failed to file a properly certified CDA claim, as required, for the alleged $169,905 underpayment, and that this claim must, of course, be dismissed. However, inasmuch as Cupey Bajo was not statutorily required to file a certified claim before contesting the $239,730 overpayment demand by the VA in the Claims Court, this aspect of the complaint cannot be dismissed. Moreover, we find that we have the jurisdiction to decide the merits of that assessment even though there is no valid certified claim for money damages pending before the Claims Court. Thus, the RUSCC 12(b)(1) motion to dismiss is GRANTED IN PART and DENIED IN PART.

FACTS

On April 1, 1982, Cupey Bajo and the VA executed contract No. V 455P-1531, which commenced on January 1, 1983, and expired on November 22,1983. In substance, it obligated Cupey Bajo to provide psychiatric and other medical care for veterans being treated at its inpatient facility in Rio Pedras, Puerto Rico. The amount of contract payments to plaintiff were estab[409]*409lished by multiplying the number of inpatient service days provided to such veterans by Cupey Bajo under the contract by a set “per diem rate” for reimbursable expenses. To obtain these periodic payments, Cupey Bajo filed monthly invoices detailing the number of days of inpatient care provided to VA beneficiaries and the amount due according to the contract per diem rate. This per diem rate was calculated by ascertaining the total allowable costs for hospital inpatient services and dividing that amount by the total number of inpatient days to obtain the average computed per diem reimbursable cost.

Naturally, the parties could not compute the per diem rate with precision when the contract was originally executed, so they used an estimated per diem rate of $65.93, which was subject to adjustment at the conclusion of the contract term. Thus, upon termination of the contract, the VA was authorized to conduct an audit to determine, first, the number of days of inpatient care actually provided for veterans, and secondly, the actual per diem rate as reflected by the total number of inpatient hospital service days provided and the reimbursable costs actually incurred by Cu-pey Bajo during the contract term. The actual per diem rate was required to be based on the results of this audit, and, along with the number of inpatient service days truly provided to the veterans, would be the basis for calculating the final amount due to or from Cupey Bajo.

In addition to providing for a confirming VA audit, the contract also called on Cupey Bajo to submit a statement with certified costs and its own calculations of the actual per diem rate. Thus, approximately one year after the expiration date of the contract, the VA provided Cupey Bajo with Form JHF-001. This document, captioned “Hospital Statement of Reimbursable Cost” (the Statement), required Cupey Bajo to furnish certain relevant cost data relating to the total allowable costs for hospital inpatient services, and the total number of hospital service days provided to all patients during the contract term. Mr. Oyó-la, the hospital administrator acting for Cupey Bajo, completed the Statement on or about October 23, 1984. In determining that the actual per diem rate for the contract period was $72.95, he divided the total reimbursable costs ($3,188,443) by the total number of inpatient days (43,705) that he recorded on the Statement. In other words, he calculated that the actual per diem was $7.02 higher than the $65.93 estimated inpatient per diem rate that the VA actually paid to Cupey Bajo under the original contract terms.

The VA did not immediately respond to the October 23, 1984 Statement by plaintiff. In fact, no further action was taken by either party for two and one-half years. Finally, sometime in the late spring of 1987, the CO apparently instructed Cupey Bajo to submit a claim for any additional amounts that might be due under the contract. Thus, on June 8, 1987, Mr. Oyóla forwarded a letter to the CO which stated that Cupey Bajo was owed another $169,-905 by the VA. He calculated this amount by multiplying the $7.02 difference between the $65.93 estimated and the $72.95 actual per diem rates by 24,203, the number of inpatient service days allegedly provided by Cupey Bajo under the contract. Mr. Oyóla justified his use of the $7.02 per diem rate by attaching a copy of the October 23, 1984 Cupey Bajo per diem calculations. However, he provided no underlying supporting evidence for his claim that Cu-pey Bajo provided a total of 24,203 days of inpatient service care for VA veterans.

Ultimately, the VA responded to this submission in September of 1987, when it attempted to verify the actual per diem rate by conducting his own audit of the Cupey Bajo operation, as provided under the contract. When that audit was completed, it identified a number of alleged deficiencies. With respect to the amount of the actual per diem rate, it averred that Cupey Bajo understated the total number of hospital inpatient days and overstated the amount of reimbursable expenses incurred during the contract term, resulting in an actual inflated per diem rate calculation. Therefore, using the data obtained in the course of its audit, the VA determined that the actual per diem rate was $56.65, or [410]*410$9.28 lower than the $65.93 estimated cost and $16.30 lower than the $72.95 actual per diem rate calculated by Cupey Bajo. Moreover, the VA audit contends that Cupey Bajo also overstated the number of days of inpatient care provided to VA beneficiaries by 267 days. That is, the VA audit allegedly showed that Cupey Bajo furnished only 23,936 days of VA inpatient hospital service, as opposed to the 24,203 days alleged by Mr. Oyóla in his June 8, 1987 letter.

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37 Cont. Cas. Fed. 76,133, 23 Cl. Ct. 406, 1991 U.S. Claims LEXIS 256, 1991 WL 110983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cupey-bajo-nursing-home-inc-v-united-states-cc-1991.