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DAVIS v. UNITED STATES DEPT. OF HEALTH

June 11, 1976

Philip DAVIS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, and Group Health Incorporated, Defendants



The opinion of the court was delivered by: LASKER

LASKER, District Judge.

 Philip Davis seeks a judgment declaring invalid certain hearing procedures established by the Secretary of the Department of Health, Education § Welfare (HEW) regarding disputed claims of medicare benefits under Title XVIII, Part B of the Social Security Act, 42 U.S.C.§§ 1395, et seq. Specifically, Davis alleges that the procedures for the appointment of persons who conduct hearings as to disputed claims resulted, in his and in all cases, in the appointment of a biased hearing officer and, therefore, violate his rights under the Act and the due process clause. Davis moves for summary judgment. Defendants move to dismiss for lack of jurisdiction and failure to state a claim.

 I.

 Under Part B of the Medicare program, persons who enroll pay monthly premiums, matched by federal contributions, and are entitled to insurance benefits for covered services. See 42 U.S.C. §§ 1395y(a)(1), 1395k.

 The Act authorizes the Secretary of HEW to promulgate regulations governing eligibility and review of disputed claims. See 42 U.S.C. § 1395ff. A dissatisfied claimant obtains review of disputed Part B claims by filing a request for reconsideration. The Secretary of HEW is authorized by statute to enter into agreements with health insurance carriers to perform certain functions, including the determination of the amount of reimbursement due individual claimants. Group Health Incorporated (GHI), a defendant in this case, is the insurance carrier in charge of Davis' claims.

 The Act sets forth the manner in which hearings of disputed Part B claims are to be conducted and provides in pertinent part:

 
"(3) Each such contract [between the carrier and the Secretary] shall provide that the carrier -
 
* * *
 
(C) will establish and maintain procedures pursuant to which an individual enrolled under this part will be granted an opportunity for a fair hearing by the carrier, in any case where the amount in controversy is $100 or more, when requests for payment under this part with respect to services furnished him are denied or are not acted upon with reasonable promptness or when the amount of such payment is in controversy."
 
42 U.S.C. § 1395u(b)(3)(C) (emphasis added)

 Pursuant to the Statute, the Secretary of HEW promulgated regulations which establish the hearing procedures and provide:

 
"20 C.F.R. § 405. Hearing officer.
 
Any hearing provided for in this subpart shall be conducted by a hearing officer designated by the ...

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