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TUDOR v. SHALALA

September 29, 1994

EVELYN TUDOR o/b/o ANNA SANDERS, SS#: 113-26-6171, Plaintiff, against DONNA SHALALA, Secretary of the Department of Health & Human Services, Defendants.


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

 SPATT, District Judge:

 The plaintiff Anna Sanders ("Sanders"), through her daughter Evelyn Tudor, has commenced this action for judicial review of a decision by the Secretary of Health and Human Services ("defendant" or "Secretary"). The decision at issue is a dismissal of Sanders' request for a hearing to review the denial by her health insurer of a reconsideration of its initial determination denying a Medicare claim submitted by Sanders.

 The United States of America on behalf of the defendant moves pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss the plaintiff's complaint, on the grounds that the Court lacks subject matter jurisdiction.

 STATUTORY AND REGULATORY FRAMEWORK

 The Medicare claims that are at issue here are governed by Title XVIII of the Social Security Act, a amended, 42 U.S.C. § 1395 et seq., 79 Stat. 291, commonly known as the Medicare Act ("Act"). The regulatory provisions governing Medicare claims are set forth at 42 C.F.R. subchapter B, §§ 405-424.

 The Medicare Act establishes a federally subsidized health insurance program to be administered by the Secretary. Part A of the Act, 42 U.S.C. § 1395c et seq. provides insurance for, among other things, the cost of hospital and post-hospital services. Pursuant to 42 U.S.C. § 1395h, Part A of the Act is also administered by private insurers under contract with the Department of Health and Human Services ("HHS"). The private insurer is designated by HHS as a "fiscal intermediary," and is authorized, among other things, to review and determine benefit claims, and to pay such claims. 42 C.F.R. § 421.200.

 Appeals and reviews of claim determinations under Part A of the Medicare Act, including determinations by fiscal intermediaries, are governed by the regulatory scheme set forth in 42 C.F.R. §§ 405.701-750 and 20 C.F.R. Subpart J, §§ 404.900-999d, incorporated by reference at 42 C.F.R. § 405.701(c).

 The regulatory scheme essentially provides that the intermediary must notify the individual claimant in a writing of its initial determination regarding a § submitted claim for benefits payments. 42 C.F.R. 405.702. The initial determination is final and binding upon the individual on whose behalf the claim was submitted, unless it is reconsidered or revised. The individual is also considered a party to the initial determination. Id.

 If good cause is shown, then the extension is granted and the initial determination is reconsidered. The intermediary then notifies the individual in writing of the reconsideration determination, 42 C.F.R. § 405.716. The reconsidered determination is final and binding on the individual unless (i) the individual requests a hearing before an Administrative Law Judge ("ALJ") within sixty days from receiving the notice of a reconsidered determination, or (ii) the reconsidered determination is revised by reopening the determination pursuant to section 405.750, or an expedited appeal of the reconsidered determination is taken. See 42 C.F.R. § 405.717.

 The regulations further provide that an individual has "a right to a hearing" before an ALJ regarding an initial determination if the initial determination has been reconsidered by the intermediary, the individual was a party to the reconsidered determination, the individual properly files a request for a hearing, and the amount of controversy exceeds $ 100. 42 C.F.R. § 405.720; see also 20 C.F.R. § 404.930(a)(1) (a hearing is available before an ALJ if a reconsideration determination has been made).

 If, on the other hand, good cause is not shown, then there is no reconsideration, and the individual looses their right to further administrative review and judicial review. See 20 C.F.R. § 404.900(b); 20 C.F.R. § 404.903(j) (denying the request to extend the time period for requesting review of a determination is an administrative action that is not subject to the administrative review process or to judicial review). Thus, the net effect of filing an untimely request for reconsideration and subsequently being denied an extension to file the request is that the individual looses his or her right to a hearing before the ALJ.

 With respect to the jurisdiction of the ALJ and the Appeals Council, the regulations provide that an ALJ may dismiss a request for a hearing if the ALJ decides there is cause to dismiss a hearing request entirely because "the person requesting the hearing has no right to it under § 404.930." See 20 C.F.R. § 404.957(c)(2). Thus, an ALJ may dismiss a request for a hearing in the situation where a reconsideration determination has not been made.

 Finally, 20 C.F.R. § 404.970 provides in relevant part that the Appeals Council will review a case if:

 
(1) There appears to be an abuse of discretion by the administrative law judge;
 
(2) There is an error of law;
 
(3) The action, findings or conclusions of the administrative law judge are not supported by ...

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