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WALSH v. MCGEE

October 11, 1995

HELENA WALSH (as representative of Sister MARY HOGAN, deceased), MARGARET TOSCANO, ALBERT HAYS, CHARLES BECKER, VIRGINIA CONGRO, SERAFINO GIANNOLA, JULIA GOLD (as representative of MORRIS GOLD, deceased), MICHAEL GRANELLI, MARY O'CONNOR, CHARLES PASCARELLA (as representative of MARGARET PASCARELLA), JAMES SACCARDI, and RICHARD JANIK, Plaintiffs, against JOHN MCGEE, WILLIAM C. WOODSON, LOUIS SULLIVAN, WILLIAM TOBY, and EMPIRE BLUE CROSS AND BLUE SHIELD, Defendants.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge:

 This case arises under the Medicare Act, ("Medicare" or "the Act"), Title XVIII of the Social Security Act, 42 U.S.C.S. §§ 1395-1395ccc. Plaintiffs, Medicare Part B claimants, allege that defendants, Medicare Part B administrators, wrongly underpaid plaintiffs' Medicare claims, mishandled plaintiffs' appeals of these claims, and, consequently, violated plaintiffs' procedural due process rights under the Fifth Amendment to the United States Constitution. As relief, plaintiffs seek: (1) injunctive relief to prevent defendants' alleged misconduct with respect to Medicare Part B appeals; (2) a declaratory judgment that defendants' actions were unlawful and violated plaintiffs constitutional due process rights; and (3) a writ of mandamus directing the defendants who are hearing officers to vacate and set aside their decisions regarding plaintiffs' Medicare claims and to conduct new hearings on these claims. In response, Defendants contend: (1) that this Court lacks subject matter jurisdiction over plaintiffs' claims; (2) plaintiffs' claims do not present justiciable constitutional issues; and (3) plaintiffs fail to meet the prerequisites for the issuance of a writ of mandamus.

 Currently before the Court are plaintiffs' and defendants' respective motions for summary judgment, pursuant to Federal Rule of Civil Procedure ("Rule") 56(b), as well as defendants' motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1). Because this Court lacks subject matter jurisdiction over plaintiffs' claims, defendants' Rule 12(b)(1) motion is granted. Moreover, because this Court lacks subject matter jurisdiction, plaintiffs' motion for a writ of mandamus is dismissed.

 BACKGROUND

 Medicare establishes programs to provide medical benefits for the aged and disabled. It consists of two separate plans. Medicare Part A establishes major medical insurance coverage for hospital care and related post-hospital services and is funded by Social Security taxes. 42 U.S.C. §§ 1395c-i. Part B creates a voluntary program of supplementary medical insurance for persons who are disabled or over sixty five years of age. 42 U.S.C. §§ 1395j-w. This action solely concerns Part B.

 Part B is analogous to a private medical insurance program subsidized by the federal government. Enrolled individuals pay monthly premiums that, together with contributions from the federal government, 42 U.S.C. §§ 1395r, 1395t, 1395w, secure coverage for the reasonable cost of specified medical services that are excluded from Part A, such as physician services, out-patient therapy, medical equipment, and laboratory testing. 42 U.S.C. § 13951; 42 C.F.R. § 405.231. The Secretary of Health and Human Services ("HHS") contracts with private insurance carriers to process Part B claims, 42 U.S.C. § 1395u, in order to profit from their "great experience," S. Rep. No. 404, 89th Cong., 1st Sess., reprinted in 1965 U.S.C.C.A.N., 1993, and thereby administer the program "with maximum efficiency and convenience." 42 U.S.C. § 1395u(a). Schweiker v. McClure, 456 U.S. 188, 190, 72 L. Ed. 2d 1, 102 S. Ct. 1665 (1982); Isaacs v. Bowen, 865 F.2d 468, 470 (2d Cir. 1989).

 The Medicare Act sets forth the procedures private insurance carriers must use to process Part B claims. These procedures direct a Part B enrollee to submit claims for services directly to the carrier in the enrollee's geographic area. The carrier then reviews the claim to determine whether the medical service at issue is within the scope of Part B, whether it was "reasonable and necessary" under the circumstances, and whether its cost was "reasonable." 42 U.S.C. §§ 1395u(b)(3), 1395y(a); 42 C.F.R. §§ 405.501, 421.200. While the Act instructs carriers to consider specific criteria in making these determinations, a carrier may take into account additional factors that it deems necessary to its evaluation. 42 C.F.R. § 405.502(a)(7). If a carrier finds that the claim meets all coverage criteria, it pays enrollee's benefits from federal funds according to Medicare guidelines. 42 U.S.C. § 1395u. In the event an enrollee disputes a carrier's reimbursement determination, Part B details procedures he can use to challenge it. 42 U.S.C. § 1395ff.

 Specific provisions of the Medicare Act govern reimbursement disputes concerning Part B services rendered prior to January 1, 1987. 42 U.S.C. §§ 1935u(b)(3)(C), 1395ff, 1395ii. Under these provisions, a claimant who is dissatisfied with a carrier's initial disposition of his claim is entitled to de novo review of the claim by the carrier. 42 C.F.R. §§ 405.807-812. In addition, if the amount in controversy exceeds $ 100, the claimant is entitled to a "fair hearing" before an officer chosen by the carrier. 42 U.S.C. § 1395u(b)(3)(C); 42 C.F.R. §§ 405.801, .820; McClure, 456 U.S. at 191. Fair hearing officers must evaluate each claim in accordance with the Medicare Act, HHS regulations, and the Health Care Finance Administration's ("HCFA") policy statements. 42 C.F.R. § 405.860. The HCFA's Medicare Carrier's Manual ("MCM") provides the primary procedural guidelines for fair hearings.

 Decisions rendered by fair hearing officers are final and binding. 42 C.F.R. § 405.835. The Medicare statute explicitly precludes judicial review of fair hearing officers' decisions regarding the amount of benefits due a claimant under Part B. 42 U.S.C. § 1395ii (incorporating 41 U.S.C. § 405(h)); United States v. Erika, Inc., 456 U.S. 201, 208, 72 L. Ed. 2d 12, 102 S. Ct. 1650 (1982); Anderson v. Bowen, 881 F.2d 1, 3 (2d Cir. 1989); Kuritzky v. Blue Shield of Western New York, Inc., 850 F.2d 126, 127 (2d Cir. 1988), cert. denied, 488 U.S. 1006, 102 L. Ed. 2d 778, 109 S. Ct. 787 (1989). *fn1"

 The instant case concerns the Part B review process. Plaintiffs are twelve enrollees or representatives of enrollees in Medicare Part B. Defendants are the Secretary of HHS, officials of the HCFA, Empire Blue Cross and Blue Shield ("Blue Cross"), the private insurance carrier which administers plaintiffs' Medicare insurance in the New York area, and the Medicare hearing officers who handled plaintiffs' claims.

 Plaintiffs assert that Blue Cross "wrongly underpaid" their Part B reimbursement claims for medical services rendered prior to January 1, 1987. (Plaintiffs' Memorandum of Law in Support of Summary Judgment ("Pls.' Memo") at 2.) To challenge these alleged underpayments, plaintiffs exercised their rights under the Act and requested fair hearings. (Pls.' Complaint at 3.) Plaintiffs complain that, throughout the fair hearing process, Blue Cross and the hearing officers who handled plaintiffs' claims "violated the clear mandates of the law and regulations regarding plaintiffs' 'fair hearing' rights." (Pls.' Memo at 9.) According to plaintiffs, these violations denied them proper reimbursement for their medical expenses as well as their rights to due process under the Fifth Amendment to the Constitution. (Pls.' Memo at 7, 18.)

 Although plaintiffs' papers set forth these alleged violations in painstaking detail, plaintiffs' claims are easily summarized. Plaintiffs allege that, after they requested their fair hearings, defendants failed to provide them with adequate notice of the specific issues to be determined at these hearings. (Pls.' Memo at 2.) Plaintiffs also attack defendants' failure to schedule the fair hearings according to plaintiffs' preferences. (Pls.' Complaint at 10-12.) Plaintiffs further claim that defendants denied plaintiffs access to discovery materials that plaintiffs needed to prepare for the fair hearings. (Pls.' Memo at 7-8.) Finally, plaintiffs claim that defendants ignored the procedural rules governing Part B fair hearings. Id. at 14. In each instance, plaintiffs rely on Part B regulations and the MCM to support their claims that defendants' conduct was illegal and unconstitutional.

 Plaintiffs claim that defendants' deviations from Medicare Part B appeals procedures deprived plaintiffs of due process of law. Defendants contend that plaintiffs claims are beyond the scope of this Court's subject matter jurisdiction and, alternatively, fail to present this Court with a genuine constitutional controversy. Plaintiffs moved for summary judgment pursuant to Rule 56(b). Defendants cross-moved for summary judgment ...


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