reconsideration of an initial determination as provided for by 42 C.F.R. § 405.711. In the letter requesting reconsideration, the plaintiff alleged there was good cause for the untimely request, based on the confusion of the plaintiff's daughter concerning the requirements of Medicare and Medicaid. By letter dated August 11, 1992 EBCBS denied the request for reconsideration, on the grounds that it was untimely and without good cause.
The plaintiff then requested a hearing before an ALJ to address the issue of whether or not the request for reconsideration was timely filed. In an order dated October 16, 1992, ALJ Emanuel Poverstein dismissed the plaintiff's request for a hearing on the grounds that he lacked jurisdiction to adjudicate the matter. According to Judge Poverstein's order, the plaintiff did not have a right to a hearing as provided by 20 C.F.R. § 404.930(a), because no reconsideration determination was made. As a result, pursuant to 20 C.F.R. § 404.957(c)(2) he could dismiss the plaintiff's request.
However, Judge Poverstein noted that because Sanders filed her request for reconsideration "only a few weeks" beyond the expiration of the sixty day period, she should be allowed to initiate the claim process anew. Although Judge Poverstein did not cite any specific regulation, the defendant contends Sanders can do so pursuant to 42 C.F.R. § 405.750, the regulations allowing a claimant to reopen an initial determination.
The plaintiff appealed the ALJ's dismissal to the Appeals Council, and on March 23, 1993 the Appeals Council affirmed Judge Poverstein's decision to dismiss the plaintiff's request for a hearing. The Appeals Council concluded that there was no basis to review the ALJ's dismissal under 20 C.F.R. § 404.970, the regulations governing the types of cases the Appeals Council will review. In arriving at its conclusion, the Appeals Council reiterated that neither the ALJ nor the Appeals Council have the jurisdiction to review the insurer's actions pursuant to 42 C.F.R. § 405.720, because there was no actual issuance of a reconsidered determination.
The plaintiff commenced this action on May 24, a 1993 for judicial review of the Secretary's actions pursuant to 42 U.S.C. § 1395ff(b)(1)(D), and mandamus relief pursuant to 28 U.S.C. § 1361. According to the complaint, the plaintiff contends that the issues to be decided by the Court are (1) whether the Appeals Council has jurisdiction to direct EBCBS -- the intermediary -- to perform a reconsideration of its initial determination, and (2) whether good cause exists for the plaintiff's failure to timely file a request for reconsideration.
In terms of relief, the plaintiff requests that the Court hold a hearing concerning the timeliness of the request for reconsideration, and direct that a regulation be issued conferring jurisdiction on an ALJ or the Appeals Council to review the intermediary's actions. The plaintiff also seeks attorneys fees.
MOTION BEFORE THE COURT
The defendant moves to dismiss the complaint on the grounds that the Court lacks subject matter jurisdiction to hear the case. According to the Secretary, 42 U.S.C. 1395ff(b)(1)(D) incorporates the judicial review provisions for old age and disability claims arising under Title II of the Social Security Act, 42 U.S.C. § 405(g). Section 405(g) provides in relevant part for judicial review of the agency's actions "after a final decision of the Secretary made after a hearing to which [the claimant] was a party." The defendant contends that the dismissal of the plaintiff's request for a hearing was not a final decision by the Secretary made after a hearing, and accordingly does not fall within the scope of section 405(g) judicial review.
In addition, the defendant contends that mandamus jurisdiction under 28 U.S.C. § 1361 is inappropriate in this case, because there is no duty owed to the plaintiff. The defendant contends that under the applicable regulations the plaintiff has no right to an administrative hearing on the issue of the timeliness of her request for reconsideration or on the issue of good cause in filing late. Moreover, according to the defendant the intermediary's decision whether or not to grant an extension of time under the regulations is discretionary, not ministerial.
The plaintiff contends, on the other hand, that she has pressed her claim through all the designated levels of administrative review, and the Secretary has denied her claim. According to the plaintiff, the Secretary has thus rendered a final decision, and jurisdiction is proper within the meaning of section 405(g).
In addition, the plaintiff contends that the Appeals Council has jurisdiction to consider the plaintiff's request for a hearing, because 20 C.F.R. § 414.970(a)(4) provides that the Appeals Council may hear appeals in a case where "there is a broad policy or procedural issue that may affect the general public interest." The plaintiff contends that this is such a case, because the Medicare appeal process is "flawed" in so far as "there is no review by the Secretary of a private insurance company's denial of a 'good cause' request regarding an untimely filing." According to the plaintiff, this alleged procedural flaw leaves the plaintiff without an effective remedy of appeal.
Not considering the Reconsideration issued by Blue Cross as a decision on the timeliness issue which could be addressed at an ALJ hearing violates the comprehensive appeal process outlined in Medicare statute.
Plaintiff's Memorandum of Law, at 4.
The plaintiff also contends that mandamus jurisdiction is appropriate in this case, because the plaintiff has no other avenue for relief to challenge the alleged procedural decision of the Secretary.
1. Judicial Review.
Pursuant to 42 U.S.C. § 1395ff(b)(1)(D), judicial review of claims arising under the Medicare Act is governed by the provisions of 42 U.S.C. § 405(g). Section 405(g) provides, in relevant part, for judicial review "after any final decision of the Secretary after a hearing" to which the claimant was a party. The statutory provision "clearly limits judicial review to a particular type of agency action, a 'final decision of the Secretary made after a hearing.'" Califano v. Sanders, 430 U.S. 99, 108, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977). Moreover, pursuant to 42 U.S.C. § 405(h), as made applicable to Medicare claims by 42 U.S.C. § 1395ii, section 405(g) provides the exclusive jurisdictional grant for judicial review of Medicare claims. See Heckler v. Ringer, 466 U.S. 602, 614-615, 80 L. Ed. 2d 622, 104 S. Ct. 2013 (1984).
In this case, the plaintiff contends that the Court has jurisdiction under section 405(g) to review the Secretary's dismissal of the request for a hearing, because the Secretary has rendered a "final decision." To support this contention, the plaintiff argues that according to Ringer, the Secretary's final decision is rendered on a Medicare claim "only after the individual claimant has pressed his claim through all designated levels of administrative review." See 466 U.S. at 606-07. The plaintiff alleges that she has pressed her claim before the ALJ, and the Appeals Council has issued a decision that is final. Since the amount of controversy exceeds the statutory minimum, the plaintiff concludes that judicial review is proper.
In the Court's view, the plaintiff has misunderstood the relevant case law. In Heckler v. Ringer, supra, the Supreme Court delineated all of the designated levels of administrative review regarding Medicare claims, and specifically included a reconsideration determination in the chain of administrative review levels:
If the intermediary determines that a particular service is not covered under Part A, the claimant can seek reconsideration . . . . If denial of the claim is affirmed after reconsideration and if the claim exceeds $ 100, the claimant is entitled to a hearing before an administrative law judge . . . . If the claim is again denied, the claimant may seek review in the Appeals Council. . . . If the Appeals Council also denies the claim and if the claim exceeds $ 1,000, only then may the claimant seek judicial review in federal district court of the "Secretary's final decision."