Texas Clinical Labs, et al v. Thompson, et al

*Judge, U.S. Court of International Trade, sitting by
designation.
**Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-10099
TEXAS CLINICAL LABS, INC., a Texas Corporation; TEXAS CLINICAL
LABS-GULF DIVISION, INC., a Texas Corporation,
Plaintiffs-Appellants,
VERSUS
KENNETH S. APFEL, Secretary, U.S. Dept. of Health & Human
Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
3:96-CV-571-R
December 22, 2000
Before JOLLY and DAVIS, Circuit Judges and RESTANI*, Judge.
PER CURIAM:**
The appellant, Clinical Laboratories, challenges as arbitrary
and capricious a formula approved by the Secretary to compute

-- 1 of 2 --

2
reimbursement for certain health care providers for travel
expenses. Appellants challenge two elements of the agency’s travel
allowance formula: (l) the 35 mile per hour average used as the
standard speed for delivery of services, and (2) the median cost
per specimen.
Based upon our review of the record and considering the briefs
and argument of counsel, we are satisfied that the Secretary’s
conclusions with respect to this second element–the median cost per
specimen–is fully supported by the record and therefore is not
arbitrary or capricious. However, with respect to the first
element, the 35 mile per hour average speed, we are not satisfied
that the record supports this figure. From the briefs, it appears
that the Secretary relied on documents which were not made a part
of the record to support this figure. Because the record does not
provide a basis for the Secretary’s use of the 35 mile per hour
figure, we remand this case to the Secretary to give it an
opportunity to include in the administrative record those documents
it relied upon to support that decision and to provide a complete
explanation for this decision. We find appellant’s remaining
arguments unpersuasive.
Accordingly, we remand this case to the Secretary for further
proceedings consistent with this order.

-- 2 of 2 --