a single physician or supplier to aggregate claims assigned by the same beneficiary if the claims involve the delivery of similar or related services. Also, a single physician or supplier would be able to aggregate claims assigned by several different beneficiaries if common questions of law and fact are involved. The proposed regulations do not allow two or more physicians or suppliers to aggregate claims under any circumstances.
In the view of the court, the proposed regulations are contrary to the requirements of the statute.
Congress was undoubtedly well aware of the fact that claims for payment of Medicare benefits are sometimes made by the individual beneficiaries and sometimes made by physicians or other suppliers of services, as assignees. In the statutory provision for aggregation, Congress established certain criteria. But these criteria have nothing to do with whether the claims are made by individual beneficiaries or by physicians or suppliers. No greater or lesser right of aggregation is conferred depending on who is making the claim. Indeed, the statute does not even deal with the question of who is making the claim. The statute speaks in terms of the services delivered or supplied. Limits on the right of aggregation are defined in terms of the services and the issue which these services give rise to, but no limit is imposed on aggregation because the claimant is a physician or supplier instead of an individual beneficiary.
The portion of the statute relevant to the present case provides that where the "services furnished to two or more individuals" give rise to "common issues of law and fact" the Secretary "shall allow" the claims to be aggregated. No one doubts that where there are common issues of law and fact two or more individual beneficiaries may aggregate their claims. It should be equally clear that where such claims have been assigned to physicians or suppliers, the claims may be aggregated. Here, however, the Secretary proposes to inject a limitation. The Secretary would allow aggregation of claims assigned to a single physician or other supplier, but not to several physicians or suppliers.
Not a word in the statute authorizes or even suggests this distinction. One cannot imagine Congress contemplating that only patients of a single physician could have claims involving common questions of law and fact. There is no basis in the statute for limiting the aggregation to patients of a single physician, either where the patients themselves are making the claims or where the physicians are making the claims as assignees.
A proper interpretation of the statute requires that where claims involve common issues of law and fact arising from services furnished to two or more individuals, aggregation of those claims must be allowed, whether the claims are presented for payment by the individuals themselves or their several physicians or other suppliers of services.
It is now necessary to decide what form of remedy is appropriate in this case. Neither side has been able to cite any controlling judicial decision on the question of remedy. However, it is the view of the court that plaintiffs are entitled to avail themselves of the right of aggregation so clearly conferred by the statute. The application of the statute should not be forestalled by the unreasonable delay in issuing the regulations.
Therefore, the court grants the relief requested in plaintiffs' first cause of action, to have the claims remanded to the Secretary with the direction that they be aggregated and heard by an administrative law judge.
With regard to the second cause of action, it now appears that the Secretary is in the process of considering the comments made in respect to the proposed regulations in order to decide what are to be issued as final regulations. A writ of mandamus directing the promulgation of regulations would be inappropriate at this juncture. The second cause of action is dismissed.
Dated: New York, New York
February 5, 1992
THOMAS P. GRIESA
© 1992-2004 VersusLaw Inc.