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BERNSTEIN v. SHALALA

May 27, 1994

GEORGE BERNSTEIN o/b/o THEODORE BERNSTEIN, Plaintiffs, against DONNA SHALALA, Secretary of the Department of Health and Human Services, Defendant.


The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 On behalf of the plaintiff Theodore Bernstein ("Bernstein" or "plaintiff"), George Bernstein commenced this action pursuant to 42 U.S.C. § 405(g) to appeal the denial of Medicare benefits to the plaintiff based on the finding that the Request for Reconsideration of the denial of the benefits was not timely filed. The defendant Donna E. Shalala, Secretary of Health and Human Services, moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) based on the failure to state a claim and Fed. R. Civ. P. 12(b)(1) based on a lack of jurisdiction.

 Although the plaintiff opposed this motion, the papers filed in opposition to the motion were untimely and therefore the Court indicated to the plaintiff that the Court would not consider the opposition papers. However, upon reconsideration, the Court will consider the papers filed by the plaintiff in opposition to the motion to dismiss.

 BACKGROUND

 On or about November 12, 1992, the plaintiff Theodore Bernstein was admitted into the Rockville Nursing Center and, thereafter, claims for Medicare benefits were submitted. On or about February 24, 1992, the defendant denied Medicare benefits for the period November 12, 1991 through December 11, 1991 in a Notice of Claim Determination (See Complaint, at P 8). It is alleged by the plaintiff that this Notice of Claim Determination stated "Rockville Nursing Center has determined that the services [plaintiff] needed from November 12, 1991 through December 11, 1991 did not meet the requirements for payment under Medicare because [he] did not need skilled nursing or skilled rehabilitation services or did not need them on a daily basis" (Complaint, at P 8). Further, the complaint alleges that on or about March 19, 1992, the defendant denied Medicare benefits for the period December, 12, 1991 through December 31, 1991 based on the same reasons (See Complaint, at P 9).

 On or about March 24, 1992, the plaintiff alleges that he appealed the decision to deny Medicare benefits by submitting a Request for Reconsideration to fiscal intermediary, The Travelers Insurance Company ("Travelers") (See Complaint, at P 10). However, on May 21, 1992, The Travelers informed the plaintiff that it was not the proper fiscal intermediary. On or about May 27, 1991, the Request for Reconsideration was filed with the proper fiscal intermediary, Empire Blue Cross/Blue Shield (See Complaint, at P 12). However, "on June 10, 1992, defendant, through Medicare's fiscal intermediary, Empire Blue Cross/Blue Shield dismissed the request for reconsideration as being untimely and without good cause" (Complaint, at P 13).

 On or about June 15, 1992, the plaintiff requested a hearing before an Administrative Law Judge "to address the issue of whether or not the request was timely filed in May, 1992" (Complaint, at P 14). According to the complaint,

 On or about August 21, 1992, the complaint alleges that the plaintiff requested that the Appeals Council reverse the decision to dismiss the Request for a Hearing and that a hearing be set down "to decide the factual issue of whether the Request for Reconsideration had been timely filed" (Complaint, at P 16). Apparently, on or about November 25, 1992, the Appeals Council determined that "since there was no reconsideration determination, there was no right to a hearing under 20 C.F.R. 404.930 or 42 C.F.R. 405.720" (Complaint, at P 17).

 It is based on the above determinations that the plaintiff commenced this action. The defendant moves to dismiss the complaint.

 DISCUSSION

 Motion to Dismiss:

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'" ( Goldman v. Belden, 754 F.2d 1059, 1065 [2d Cir. 1985] [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)]; see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 [2d Cir. 1993]). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken" ( Samuels v. Air Transport ...


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