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February 28, 1996

HOBART ROSS and DAVID J. MERANER, on behalf of themselves and all persons similarly situated, Plaintiffs,
ALBANY MEDICAL CENTER, ALBANY MEDICAL COLLEGE, ALBANY MEDICAL CENTER HOSPITAL, DONNA E. SHALALA, in her capacity as Secretary of the Department of Health and Human Services, and BRUCE VLADECK, in his capacity as Administrator of the Health Care Financing Administration, Defendants.

The opinion of the court was delivered by: SCULLIN


 Plaintiffs, Hobart Ross and David Meraner, bring this action on behalf of themselves and a potential class of Medicare beneficiaries *fn1" seeking to have declared illegal certain alleged practices of defendants Albany Medical Center, Albany Medical College, and Albany Medical Center Hospital (collectively "Albany Medical defendants"). More specifically, plaintiffs allege that the Albany Medical defendants charged Medicare beneficiaries fees that exceeded federal and state mandatory limiting charge statutes. Plaintiffs seek to recover any payments of these alleged overcharges to the Albany Medical defendants.

 Plaintiffs also seek a judgment declaring unlawful the actions of Donna E. Shalala, Secretary, Health and Human Services ("HHS"), and Bruce Vladeck, Administrator of the Health Care Financing Administration ("HCFA") (collectively "federal defendants"). Plaintiffs allege that the federal defendants misstated the balances due on plaintiffs' Explanation of Medicare Benefits ("EOMB") forms, failed to include limiting charge information on EOMB forms, failed to cause the medical defendants to refund any overpayments, and generally failed to take enforcement action against the Albany Medical defendants for their alleged violations of the limiting charge provisions, all in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). Plaintiffs seek an injunction requiring the HCFA to identify any Medicare beneficiaries entitled to a refund, to calculate the amounts due, and to handle any related notices or correspondence.

 Presently before the Court is a motion by the federal defendants to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and a motion by the Albany Medical defendants to dismiss the action on three grounds: (1) res judicata; (2) statute of limitations; and (3) no private right of action under 42 U.S.C. § 1395w-4(g). Although only the federal defendants have raised the issue of standing, the Court will consider that issue with respect to all of plaintiffs' claims. See U.S. v. Hays, 132 L. Ed. 2d 635, 115 S. Ct. 2431, 2435 (1995) (court may address issue of standing at any time, not subject to waiver).



 Plaintiffs Hobart Ross and David Meraner both underwent coronary bypass surgery at the Albany Medical Center Hospital during the Summer of 1991. At that time, both plaintiffs were covered by Medicare Part B health insurance. The physicians in the Medical Center's Department of Anesthesia were nonparticipating Medicare physicians. *fn3" Because those doctors were non-participating providers, they were required to charge plaintiffs for their services in accordance with the provisions of 42 U.S.C. § 1395w-4(g), and N.Y. Public Health Law § 19. Those statutes prohibit non-participating physicians from charging Medicare beneficiaries more than 125% (42 U.S.C. § 1395w) and 115% (N.Y. Pub. Health Law § 19) of the Medicare recognized payment amount for the specific services rendered. Plaintiffs allege that the Albany Medical defendants violated both statutes by charging them in excess of these statutory limits for the anesthesia services provided to them.

 Plaintiffs also claim that the defendant Secretary of Health and Human Services should have issued sanctions against the Albany Medical defendants for these violations pursuant to 42 U.S.C. § 1395w-4(g). Additionally, plaintiffs allege that the federal defendants are liable under the Administrative Procedure Act because they "directly violated the statute's letter and spirit by erroneously informing Medicare beneficiaries on the Explanation of Medicare Benefits forms ("EOMBs") (that) they were liable for the illegal charges."

 While both plaintiffs claim that Albany Medical Center violated the aforesaid statutory protections by overcharging for services, there are some factual distinctions between their claims. Accordingly, the Court will discuss the factual background as to each individual plaintiff.

 Plaintiff Ross

 Plaintiff Hobart Ross underwent coronary bypass surgery on June 18, 1991 at Albany Medical Center Hospital. Following his operation, on June 20, 1991, he was issued a bill for the anesthesia services rendered during his operation. Garry Aff. Ex. A. This bill was issued by the Albany Medical Center's Department of Anesthesia, Medical College Physician's Group and was in the amount of $ 1,666.75. Complaint P 22. Subsequently, Medicare approved $ 1,256.75 of that amount. Id.

 The record indicates that, following Medicare's determination of Mr. Ross' approved amount for services, he contacted the hospital to challenge the amount of his bill. Garry Aff. Ex. A. Following several discussions, on February 14, 1992, the Hospital forgave $ 571.90 of plaintiff Ross' total bill, thereby leaving him responsible for a total of $ 1,094.85. *fn4" Id. Nevertheless, plaintiff Ross brings the present action alleging that the Albany defendants violated the federal and state statutes by initially overcharging him. *fn5" Additionally, plaintiff Ross claims that the federal defendants violated the Administrative Procedure Act by issuing a misleading EOMB. *fn6" n5 In ...

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