118 F. 3d 1495 - American Academy Dermatology v. Department Health & Human Services

Appellants, the American Academy of Dermatology, et al., appeal from the district court's order dismissing the instant action for lack of subject matter jurisdiction. Appellants filed suit against the United States Department of Health and Human Services1 alleging violations of Part B of the Medicare Act, 42 U.S.C. §§ 1395j-1395w-4. On appeal, appellants argue that the district court erred in holding that it lacked subject matter jurisdiction over this action due to appellants' failure to present their claims to the United States Secretary of Health and Human Services and exhaust administrative remedies. We AFFIRM.

Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., commonly known as the Medicare Act, established programs that provide medical benefits to the elderly and disabled. These programs are administered by the United States Secretary of Health and Human Services ("the Secretary"). The Medicare Act is divided into three parts. Part A provides insurance primarily for the costs of hospital and related post-hospital care and is funded by social security taxes. 42 U.S.C. §§ 1395c-1395i-4. Part B is a voluntary program that provides supplemental insurance to cover other health care costs, including physicians' services. 42 U.S.C. §§ 1395j-1395w-4. It is funded by monthly premiums paid by beneficiaries and contributions made by the government to the Federal Supplementary Medical Insurance Trust Fund. 42 U.S.C. § 1395t. Part C contains miscellaneous provisions and definitions. 42 U.S.C. §§ 1395x-1395ccc. This case concerns the coverage of physicians' services under Part B.

The Secretary is authorized by statute to contract with private insurance carriers to make determinations concerning the rates and amounts for payment of Part B claims. See 42 U.S.C. § 1395u. The Secretary has delegated to Blue Cross & Blue Shield of Florida, a private insurance carrier ("the Carrier"), the authority to approve and pay medically necessary and proper claims for benefits covered by Part B of the Medicare program in the State of Florida. On November 18, 1996, the Carrier issued a Local Medical Review Policy ("LMRP") setting specific limitations on Medicare coverage for the treatment of premalignant skin lesions known as actinic keratoses ("AK").

Appellant American Academy of Dermatology is a national professional medical society for physicians specializing in diseases of the skin. Appellant Florida Society of Dermatology is the principal organization of dermatologists in the State of Florida. Members of both associations participate in the Medicare program and accept assignment of their reimbursement claims from Medicare-covered patients. Additionally many of those members treat patients with AK. Appellant The Seniors Coalition, Inc., is a national nonprofit">nonprofit public advocacy group that seeks to promote and protect the economic well-being and quality of life of senior citizens. A significant number of its Florida members are Medicare beneficiaries who have AK.

Appellants filed suit seeking a temporary restraining order and preliminary and permanent injunctive relief to block the implementation and enforcement of the LMRP. Appellants alleged, inter alia, that the LMRP had been unlawfully promulgated, and that its standards conflict with the requirements of the Medicare Act and the Medicare Carriers Manual by denying coverage for the medically necessary removal or destruction of asymptomatic AK.

The district court denied appellants' motion for a temporary restraining order. Following a hearing on appellants' motion for a preliminary injunction, the district court dismissed the suit for lack of subject matter jurisdiction. The court held that appellants must present their claims to the Secretary and exhaust their administrative remedies pursuant to 42 U.S.C. §§ 405(g) & 1395ff(b)(1) before the court may exercise subject matter jurisdiction.2 It is this determination that we review, specifically, whether physicians and patients are required to present their claims to the Secretary and exhaust administrative remedies before the court may exercise subject matter jurisdiction to review an LMRP under Part B of the Medicare Act.

Judicial review of benefit determinations under the Medicare Act is authorized by 42 U.S.C. § 1395ff(b)(1),3 which provides for judicial review only after the Secretary renders a final decision on the claim, in the same manner as is provided in 42 U.S.C. § 405(g) for claims arising under the Social Security Act.4 Judicial review of Medicare Act claims is circumscribed by 42 U.S.C. § 405(h)5, which provides that § 405(g), to the exclusion of 28 U.S.C. § 1331, is the sole avenue for judicial review for all claims for benefits "arising under" the Medicare Act. See Heckler v. Ringer, 466 U.S. 602, 614-15, 104 S.Ct. 2013, 2020-21, 80 L.Ed.2d 622 (1984).

On its face, § 405(g) provides for judicial review only after a "final decision" by the Secretary. The Supreme Court has explained that this "final decision" requirement consists of two elements--(1) "presentment": a nonwaivable, jurisdictional prerequisite that a benefits claim must be presented to the Secretary and (2) "exhaustion": a waivable prerequisite that a claimant fully pursue all available administrative remedies before seeking judicial review.6 See Ringer, 466 U.S. at 617, 104 S.Ct. at 2022; Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976).

In Heckler v. Ringer, 466 U.S. at 614-20, 627, 104 S.Ct. at 2020-24, 2027, the Supreme Court held that presentment and exhaustion under § 405(g) constituted a jurisdictional prerequisite to judicial review of Medicare Act claims that were "essentially" claims for benefits. The Court considered a challenge by potential Medicare beneficiaries to a decision by the Secretary that certain Medicare Part A claims regarding a procedure known as bilateral carotid body resection ("BCBR") would not be reimbursed under the Medicare Act. See id. at 607, 104 S.Ct. at 2017. Three claimants in the case had undergone BCBR surgery, but a fourth plaintiff, Ringer, had not yet undergone the surgery. Id. at 609-10, 104 S.Ct. at 2018-19. The complaint sought (1) declaratory relief that the new policy of the Secretary regarding BCBR surgery contravened the Medicare Act, (2) an injunction ordering the Secretary to instruct the Medicare intermediaries to pay BCBR claims, and (3) an injunction barring the Secretary from requiring claimants to pursue individual administrative appeals in order to obtain payment. Id. at 611, 104 S.Ct. at 2019.

The Court determined that the claims of the three plaintiffs who had already undergone the surgery were "inextricably intertwined" with what was in essence a claim for benefits under the Medicare Act, id. at 624, 104 S.Ct. at 2026, and thus may be brought only in accordance with the requirements of § 405(g). Because those plaintiffs had failed to exhaust administrative remedies as required by § 405(g), the court held that their claims were premature. Id. at 618-19, 104 S.Ct. at 2023-24. As to Ringer's claim, the Court likewise characterized it "as essentially one requesting the payment of benefits for BCBR surgery, a claim cognizable only under § 405(g)." Id. at 620, 104 S.Ct. at 2024. Thus, Ringer was required to "pursue his claim under [§ 405(g) ] in the manner which Congress has provided."7 Id. at 622, 104 S.Ct. at 2025. The Court held that because he had not given the Secretary "an opportunity to rule on a concrete claim for reimbursement," he had not complied with the nonwaivable presentment requirement of § 405(g). Id. at 622, 104 S.Ct. at 2025. The court so held even though Ringer, like appellants in the present case, had not yet undergone the surgery and hence did not yet have a reimbursable Part A claim to present to the Secretary.

We find that Ringer is dispositive of the instant case. The declaratory and injunctive relief sought in that case ordering the Secretary to instruct Medicare intermediaries to refrain from implementing a policy against reimbursing BCBR claims and to pay those claims is indistinguishable, as a practical matter, from the relief sought by the appellants in this case. As noted above, the appellants in this case, prior to the performance of the medical procedures in question, seek a temporary restraining order and preliminary and permanent injunctive relief enjoining the Secretary from refusing to reimburse claims for AK removals deemed uncovered under the LMRP. Thus, this case clearly involves claims for benefits under the Medicare Act of the kind that are only cognizable under § 405(g).8 Accordingly, the requirements of presentment and exhaustion must be met prior to the exercise of judicial review.

We have carefully considered but remain unpersuaded by appellants' argument that this case is controlled not by Ringer but rather by the Court's subsequent decision in Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). Michigan Academy involved a challenge by doctors to the validity of a federal regulation that authorized payment of Part B benefits in different amounts for similar physicians' services. Id. at 668, 106 S.Ct. at 2134. At the time the case was decided, the scheme of the Medicare Act completely precluded judicial review of Part B "amount determinations." See United States v. Erika, Inc., 456 U.S. 201, 208, 102 S.Ct. 1650, 1654, 72 L.Ed.2d 12 (1982). However, the Court characterized the doctors' claim as a challenge to the "method by which ... amounts are determined," concluding that judicial review of their claim was not barred. See id. at 680 n. 11, 106 S.Ct. at 2140 n. 11 (emphasis in original). The Court explained that the Congressional preclusion of judicial review for Part B claims applied only to amount determinations,9 and not to methodology or "matters which Congress did not delegate to private carriers, such as challenges to the validity of the Secretary's instructions and regulations, [which] are cognizable in courts of law." Id. at 680, 106 S.Ct. at 2140. The Court also noted that the exhaustion requirement could not apply to respondents because "there is no hearing, and thus no administrative remedy, to exhaust." Id. at 679 n. 8, 106 S.Ct. at 2140 n. 8.

Four months after Michigan Academy was decided, however, Congress amended the Medicare Act to authorize an administrative hearing and judicial review thereof with respect to Part B claims for benefits in the same manner as is provided in 42 U.S.C. § 405(g). See Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 9341(a)(1), 100 Stat. 1874, 2037-38 (1986) (codified at 42 U.S.C. § 1395ff).10 As appellants concede, Congress thereby extended the same statutory framework for review of Part A benefits claims to Part B claims for benefits. Thus, the statutory language that was held to require presentment and exhaustion in Ringer applies to Part B claims as well as Part A claims. Every circuit court that has considered the effect of the 1986 amendments on the issue has held that the jurisdictional prerequisites applicable to Part A claims, as recognized in Ringer, now apply under Part B.11 See, e.g., Martin v. Shalala, 63 F.3d 497, 503 (7th Cir.1995); Farkas v. Blue Cross & Blue Shield of Michigan, 24 F.3d 853, 860-61 (6th Cir.1994); Abbey v. Sullivan, 978 F.2d 37, 42-43 (2d Cir.1992); National Kidney Patients Ass'n v. Sullivan, 958 F.2d 1127, 1132 (D.C.Cir.1992), cert. denied, 506 U.S. 1049, 113 S.Ct. 966, 122 L.Ed.2d 122 (1993).

We are likewise persuaded that as a result of the 1986 amendments, the amount/ methodology distinction established in Michigan Academy is no longer viable. See, e.g., Martin, 63 F.3d at 503; Farkas, 24 F.3d at 860; Abbey, 978 F.2d at 42-43; National Kidney, 958 F.2d at 1132. The continuing viability of this distinction would be untenable for two reasons. First, "[t]his would in effect be a holding that Michigan Academy overrules [Ringer and] the entire line of Supreme Court cases that has [required exhaustion and] denied direct federal-question jurisdiction to claims under Part A." Farkas, 24 F.3d at 860. The Court in Ringer explicitly rejected the argument that plaintiffs may circumvent presentment and exhaustion and gain direct access to federal court "simply because a claim somehow can be construed as 'procedural' [in nature]...." Ringer, 466 U.S. at 614, 104 S.Ct. at 2020. We are unwilling to assume that Michigan Academy overruled Ringer sub silentio, as it certainly did not openly purport to do so. National Kidney, 958 F.2d at 1132. Second, the Michigan Academy distinction, if it were still held to be applicable, would conflict with cases decided under the Social Security Act, which, like Ringer, held that presentment and exhaustion are required under § 405(g) even for claims challenging procedure, policy, or statutory validity. See National Kidney, 958 F.2d at 1130-33 (referring to line of cases from Social Security Act context including Eldridge, 424 U.S. at 328-30, 96 S.Ct. at 899-900 and Weinberger v. Salfi, 422 U.S. 749, 756-64, 95 S.Ct. 2457, 2462-66, 45 L.Ed.2d 522 (1975)). This is significant because the Social Security Act provided the template for the judicial review provisions that are now applicable to both Parts A and B. National Kidney, 958 F.2d at 1132-33. As one court has explained, "the special treatment of [P]art B [claims], based on the pre-October 1986 statutory differences, cannot survive the elimination of those differences." National Kidney, 958 F.2d at 1132. Accordingly, we conclude that this case is controlled by Ringer, not Michigan Academy.12

Finally, we reject appellants' contention that, as in Michigan Academy, we should not require exhaustion of administrative remedies in this case because their claims would be effectively unreviewable if exhaustion is required. Appellants note that there is a "strong presumption that Congress intends judicial review of administrative action," see Michigan Academy, 476 U.S. at 670, 106 S.Ct. at 2135, suggesting that this presumption weighs heavily against requiring exhaustion in the instant case. However, after the 1986 amendments it is clear from the plain language of § 1395ff(b)(1)(C) and § 405(g) that appellants would be able to seek judicial review of any denial of Part B benefits, if there is one, after a final decision by the Secretary. It is quite possible that their claims might not be denied when they are eventually presented to the Secretary. Moreover, if their claims are denied, judicial review of the LMRP would then be available, notwithstanding appellants' fears to the contrary, just as courts have reviewed nonbinding manual provisions and transmittal letters. See, e.g., Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995) (manual provision that was nonbinding on PRRB, the Part A hearing equivalent of an ALJ regarding "cost" matters, was upheld as valid interpretation of the regulation); Charter Peachford Hospital, Inc. v. Bowen, 803 F.2d 1541, 1546-47 (11th Cir.1986) (nonbinding manual provision overturned because it contravened Medicare statute and regulations); see also Ringer, 466 U.S. at 618-19, 104 S.Ct. at 2023-24 (holding that respondents must exhaust administrative remedies before challenging informal administrative instructions in district court); National Kidney, 958 F.2d at 1128-29, 1134 (suggesting that review of informal policy contained in transmittal letter would be available under the Medicare Act after administrative remedies were exhausted). We agree with the D.C. Circuit, which has explained that requiring exhaustion and presentment for Part B claims under the 1986 amendments "does not leave methodology disputes in the hands of carriers; it simply means that they are fed through the administrative-judicial system as parts of disputes over actual amounts." National Kidney, 958 F.2d at 1133-34.

Likewise, we cannot conclude that the amount-in-controversy provision will effectively preclude judicial review.13 Although it was the intent of Congress in this provision to prevent minor claims from clogging the courts, judicial review remains available for claims that are sufficiently significant to satisfy Congress's criteria. Additionally, physicians who accept assignment of claims can combine the claims of numerous beneficiaries to meet the amount-in-controversy requirement.

For the foregoing reasons, the district court's order dismissing the instant action for lack of subject matter jurisdiction is AFFIRMED.