The opinion of the court was delivered by: LEONARD D. WEXLER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1361 challenging the Secretary of Health and Human Services' ("Secretary") determination that plaintiff's request for reconsideration of an unfavorable initial determination of a Medicare claim was untimely filed. Presently before the Court is the Secretary's motion to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that this Court lacks subject matter jurisdiction over this action. For the reasons below, the motion is denied, and this matter is remanded to the Secretary for a prompt determination of the timeliness of plaintiff's request for reconsideration.
The background as alleged in the complaint is as follows. On January 7, 1991, Empire Blue Cross ("Empire"), the Secretary's fiscal intermediary,
mailed to plaintiff a Notice of Medicare Claim Determination informing him that his claim for nursing home benefits for the period of November 1, 1990 to November 30, 1990 was denied because plaintiff "did not need skilled nursing or skilled rehabilitation services or did not need them on a daily basis." Complaint P 8. On January 25, 1991, plaintiff submitted, through his counsel, a request for reconsideration to Empire of Empire's initial determination denying benefits. Complaint P 9.
Under applicable regulations, a request for reconsideration of an initial determination denying benefits must be filed within 60 days after receipt of notice of the initial determination unless the claimant obtains an extension of time to file such a request by showing "good cause." See 42 C.F.R. §§ 405.710-712. Absent a showing of good cause, the individual loses his right to further administrative and judicial review. 20 C.F.R. § 404.900(b). A reconsidered determination is final and binding on the parties unless a request for a hearing before an administrative law judge is filed within 60 days of receipt of the notice of the reconsidered determination. 42 C.F.R. § 405.717.
By letter dated July 15, 1991, plaintiff's counsel inquired of Empire as to the status of the reconsideration request. Complaint P 10. In response, by letter to plaintiff's counsel dated July 23, 1991, Empire stated that it had "no record of receipt of a reconsideration request from your office in January for [plaintiff]," and was "returning [plaintiff's] request . . . as it is now too late to file a reconsideration request for this claim period." The July 23 letter also stated that "in the future, if you do not receive a letter acknowledging the reconsideration request within 15 days, you should contact this office to see if we received your request." Complaint P 11. By letter dated August 1, 1991, plaintiff's counsel responded to Empire's July 23 letter. Complaint P 12.
In the August 1 letter, plaintiff's counsel again advised Empire that a request for reconsideration was sent to Empire on January 25, 1991 and, therefore, was timely. Accordingly, plaintiff's counsel requested that Empire perform a reconsideration. In response to the August 1 letter, Empire informed plaintiff's counsel, by letter dated August 15, 1991, that it would not perform a reconsideration. Complaint P 13. In the August 15 letter, Empire explained that it had previously informed plaintiff's counsel that the "July 15, 1991 request was late filed." Empire further wrote:
Your office has filed enough reconsideration requests to be aware of our procedures. When we receive a reconsideration request, we respond with an acknowledgement letter. Since you state that you submitted a reconsideration request in January 1991, you should have received an acknowledgement letter in early February 1991, if we had received your request. If you received no letter, your office should have followed-up on the request and failed to do so until July 15, 1991. Waiting almost 6 months to inquire on the status of the reconsideration does not fall under good cause for late filing.
On August 22, 1991, plaintiff requested a hearing before an administrative law judge to "address the issue of whether or not the request [for reconsideration] was timely filed in January, 1991." Complaint P 14. Under applicable regulations, an individual does not have a right to a hearing upon an initial determination if the initial determination has not been reconsidered. 42 C.F.R. § 405.720. Accordingly, an administrative law judge may dismiss a request for a hearing when the claimant has no right to a hearing under 20 C.F.R. § 404.930(a) because a reconsidered determination has not been made. See 20 C.F.R. § 404.957(c)(2). According to the complaint,
On November 27, 1991, an Order of Dismissal was issued by [the Administrative Law Judge (the "ALJ")] citing 20 C.F.R. § 404.930(a), which does not provide a right to a hearing unless a reconsideration determination has been rendered on the matter in issue, and 20 C.F.R. § 404.957(c)(2), allowing the request for a hearing to be dismissed where the party making the request does not have a right to a hearing under section 404.930.
On January 6, 1993, plaintiff commenced the present action. The Secretary moves to dismiss the complaint, contending that this Court lacks subject ...