Opinion
Civil Action No. 97-2434(JWB).
January 8, 1999
FRASER FORRESTER, By: Michael J. Forrester, Esquire, Clark, New Jersey, (Attorneys for Plaintiff).
FAITH S. HOCHBERG, United States Attorney, By: Anthony J. LaBruna, Jr., Assistant United States Attorney, Newark, New Jersey, (Attorney for Defendant).
OPINION
This matter comes before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction and on plaintiff's cross-motion for summary judgment. Plaintiff The Center for Hope Hospice, Inc. ("The Center") filed the Complaint in this action on May 14, 1997. In it, The Center seeks Medicare reimbursement from defendant the Secretary of Health and Human Services ("HHS") for hospice care that The Center provided to now-deceased Medicare beneficiary Mary Calamusa from January 1, 1994 to January 31, 1994 and from May 29, 1994 to July 31, 1994. The Center also seeks interest, costs, attorney's fees, and such other relief as the Court deems just.
FACTS A. Procedural Background
Plaintiff provided $9,277.00 in hospice care to Medicare beneficiary Mary Calamusa over two periods of time, between January 1, 1994 and January 31, 1994 and, later, between May 29, 1994 and July 31, 1994. Ms. Calamusa passed away on February 15, 1995. (AR at 24). Before she died, but after she received the hospice care, The Center was notified that Medicare would not cover the hospice care because Ms. Calamusa did not qualify for it. Both before and after Ms. Calamusa's death, The Center pursued administrative review of that decision. However, The Center neglected to obtain a form of appointment signed by The Center and by Ms. Calamusa or her estate, which would have formally made The Center Ms. Calamusa's representative for purposes of appealing the denial of Medicare coverage. Defendant now moves to dismiss this action on the grounds that a provider cannot appeal a denial of coverage of this sort and The Center failed to take the necessary steps to act as Ms. Calamusa's representative.
In letters dated December 19, 1994, a fiscal intermediary notified The Center that Medicare would not cover the costs of Ms. Calamusa's hospice care because the documentation of Ms. Calamusa's illness did not support the prognosis that her medical condition was terminal. (AR at 251, 255). Hospice care is covered by Medicare only if the beneficiary is terminally ill. 42 U.S.C. § 1395x(dd)(1); 42 C.F.R. § 418.22. An individual is considered terminally ill if he or she has a medical prognosis that his or her life expectancy is less than six months, if the illness runs its normal course. 42 U.S.C. § 1395x(dd)(3)(A); 42 C.F.R. § 418.3.
Fiscal intermediaries, frequently private insurance companies, serve as agents for the Secretary of Health and Human Services for various administrative purposes, including reviewing claims and determining coverage. 42 U.S.C. § 1395(h); 42 C.F.R. § 421.100, 421.3.
In a letter dated December 23, 1994, Mary Coloney, a provider representative, filed a request for reconsideration on Ms. Calamusa's behalf. (AR at 250). Ms. Calamusa died on February 15, 1995. (AR at 24). In a letter dated March 1, 1995, the request for reconsideration was denied. (AR at 246). The letter denying the request for reconsideration gave notice of the beneficiary's right to an administrative hearing. In addition, it stated that a beneficiary could choose to have her provider file a request for a hearing on her behalf if the provider and the beneficiary completed the SSA-1696-UC (Appointment of Representative) form. (AR at 247).
In response, The Center's attorney sent a letter, dated March 29, 1995, indicating that his firm represented The Center, requesting an administrative hearing, and stating that he would furnish a copy of the form SSA-1696-UC. (AR at 239). No such form was ever submitted.
On December 12, 1995, Administrative Law Judge Joyce Krutick Barlow held a hearing "in the matter of Mary Calamusa, Claimant." (AR at 257-68). At the hearing, the clerk identified The Center's attorney as the attorney for the claimant, but, when introducing himself, the attorney stated that he appeared on behalf of The Center. (AR at 259-60).
In a decision dated March 14, 1996, the Administrative Law Judge determined that the hospice care was not covered because the documentation submitted did not support the conclusion that Ms. Calamusa was terminally ill with a life expectancy of six months or less. (AR at 13). That decision was captioned:
IN THE CASE OF Center for Hope Hospice, Inc. (Appellant) Mary Calamusa (Beneficiary)
(AR at 11).
In a letter of April 16, 1996, The Center's attorney appealed the decision to the Appeals Council. (AR at 6). His letter was captioned: "In the Case of Center for Hope Hospice, Inc. (Appellant) Mary Calamusa (Beneficiary)," and the attorney indicated that he represented The Center. (Id.) The Appeals Council denied that request for review in a letter dated March 20, 1997. (AR at 9). The Center filed its Complaint in this Court on May 14, 1997.
B. The Merits of the Appeal
The Center appeals the Administrative Law Judge's decision that Ms. Calamusa was not eligible for the hospice care rendered by The Center because she was not documented to be terminally ill with a life expectancy of six months or less. On December 18, 1993, before she received the hospice care, Ms. Calamusa's treating physician signed a certification providing: "[I] certify that Mary Calamusa is terminally ill with a life expectancy of six (6) months or less if the terminal illness runs it [sic] normal course." (AR at 17). In support of the Medicare appeal, he signed another certification in which he summarized:
[I]n December of 1993, my diagnosis of Mary Calamusa was dementia, a terminal illness with a limited life expectancy. It is my professional opinion to a reasonable degree of medical certainty that Mary Calamusa was terminal at that time, her life expectancy being six (6) months or less, and thus a proper candidate for hospice care which was reasonable and necessary for palliation or management and Medicare benefits for same.
(AR at 20, ¶ 5).
Dr. Harlan Mellk was retained by the Department of Health and Human Services to testify as a medical expert at the hearing before the Administrative Law Judge. (AR at 132). At the hearing, he was asked: "Doctor, based on your review of the records, do the records now support the physician's conclusion in '93, to a reasonable degree of medical certainty, that the patient was terminal within six months?) (AR at 262). He replied, "Yeah, I have no problem. In fact, he certified at the time of admission. Only in movies when doctors say you have 36 days to live do you live 36 days. My understanding of this is it's not really the burden of what the physician saw . . . but the technical aspect." (AR at 262-63).
The remainder of the administrative hearing was devoted to that technical aspect, specifically, the question of whether the appropriate documentation had been submitted to recertify Ms. Calamusa as terminally ill for the second period of hospice care for which coverage has been denied. Indeed, the Administrative Law Judge commented on the first period of hospice care: "So the documentation currently supports it and, in fact, there was the material you've just provided me provides a certification for the first 90-day period. So I have no problems authorizing payment for the first 90[-day period]." (AR at 265-66). She did later indicate that she would issue one decision with respect to both periods of coverage. (AR at 267).
In her written decision, the Administrative Law Judge did not mention Dr. Mellk's assessment. However, she reviewed the documentation at issue, and determined that it did not support Ms. Calamusa's physician's conclusion that she was terminally ill with a life expectancy of six months. In particular, she noted that Ms. Calamusa's condition remained stable during the periods of hospice care. (AR at 11-13). When the Appeals Council denied The Center's request for review of the Administrative Law Judge's decision, that decision became the final decision of the Secretary of HHS.
ANALYSIS
Defendant moves to dismiss this action for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). It argues that a denial of Medicare coverage of the sort at issue here can only be appealed by the beneficiary to whom such coverage was denied, and not by a provider. Furthermore, it asserts that although a provider can represent a beneficiary in appealing a denial of hospice coverage, The Center failed to follow the necessary procedures to become the representative of Ms. Calamusa or her estate.
Without disputing defendant's legal arguments, The Center argues that it followed the procedures on the notice it received from the Appeals Council with respect to obtaining judicial review, and it cross-moves for summary judgment. In lieu of submitting a reply brief to defendant's opposition to the summary judgment motion, The Center submits a letter in which it "reserves its right to request at the time of oral argument or otherwise a denial of the Secretary's motion without prejudice in the event it is determined by the Court that the Center must have a form signed by the representative of the decedent's estate." (Nov. 4, 1998 letter, Michael Forrester to Anthony LaBruna).
The Court agrees with defendant that this action must be dismissed for lack of subject matter jurisdiction. "[T]he United States, as sovereign, `is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Hercules, Inc. v. United States, 516 U.S. 417, 422 (1996) (quoting United States v. Testan, 424 U.S. 392, 399 (1976) (quoting United States v. Sherwood, 312 U.S. 392, 399 (1941))). Title 42 U.S.C. § 405(h), applicable to medicare under 42 U.S.C. § 1395(ii), provides that the findings and decisions of the Secretary of Health and Human Services after a hearing may only be reviewed by the mechanism provided in the statute. Title 42 U.S.C. § 405(g), also applicable to Medicare under 42 U.S.C. § 1395(ii), establishes: "Any individual, after any final decision of the [Secretary of Health and Human Services] made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action" brought in a United States district court. Section 405(g) is the "sole avenue for judicial review for all `claims arising under' the Medicare Act." Heckler v. Ringer, 466 U.S. 602, 615 (1984) (citing Weinberger v. Salfi, 422 U.S. 749, 760-61 (1975)).
As 42 U.S.C. § 405(g) allows an "individual" to seek judicial review of Medicare determinations, 42 U.S.C. § 1395ff(b)(1)(C) entitles any "individual" to a hearing and judicial review of a determination of entitlement to Part A benefits, which are benefits for hospice, hospital, skilled nursing, and home health care. 42 U.S.C. § 1395c. The term "individual" is not defined in the statute.
However, the Medicare Act has been construed not to permit providers to appeal determinations of coverage made under 42 U.S.C. § 1395d, which includes determinations such as the one at issue here regarding coverage for hospice care. See Highland District Hospital v. Secretary of Health and Human Services, 676 F.2d 230, 238-39 (6th Cir. 1982); see also 31 Federal Procedure, § 71:940 (L.Ed. 1985) ("[T]he provider does not have the right to judicial review of a determination of entitlement to, or the amount of, Medicare benefits under 42 U.S.C. § 1395ff(b), since that section limits the right of review to an `individual.'") The United States Court of Appeals for the Sixth Circuit explained:
Providers may appeal certain determinations of non-coverage such as the Secretary's adverse determination concerning the institution's status as a provider. See Highland District Hospital v. Secretary of Health and Human Services , 676 F.2d 230 (6th Cir. 1982) (citing 42 U.S.C. § 1395ff(c)).
While there are certainly practical differences between being a creditor of the federal government and a creditor of an individual patient, . . . Congress did not intend to allow both the patient debtor and the provider creditor to appeal the determination of the fiscal intermediary. [The provider's] remedy is to collect from the patient, who then contests the coverage issue with the Secretary.Highland District Hospital, 676 F.2d at 238 (citations omitted); see also Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 517 F.2d 329, 335 (5th Cir. 1975) ("The parties primarily concerned with coverage determinations are H[HS] and the beneficiary. In theory the provider's interest is slight because the coverage determination merely has the effect of resolving who shall pay it for the services, Medicare or the individual.") Thus, The Center is not an "individual" entitled to a hearing or judicial review of defendant's determination that Ms. Calamusa did not qualify for Medicare coverage for hospice care because she was not terminally ill with a life expectancy of six months or less.
The Center, or a person associated with The Center, could have appealed the hospice coverage decision administratively as Ms. Calamusa's representative. See 24 C.F.R. § 404.1705(b). Title 42 C.F.R. § 405.701, et seq., define Medicare beneficiaries' appeal rights. Most importantly, 24 C.F.R. § 404.1707 provides:
We will recognize a person as your representative if the following things are done:
(a) You sign a written notice stating that you want the person to be your representative in dealings with us.
(b) That person signs the notice, agreeing to be your representative, if the person is not an attorney. An attorney does not have to sign a notice of appointment.
(c) The notice is filed at one of our offices if you have initially filed a claim or have requested reconsideration; with an administrative law judge if you requested a hearing; or with the Appeals Council if you have requested a review of the administrative law judge's decision.
(Id.) It is undisputed that the procedures for appointment of a representative were not followed here. Although the record indicates that The Center promised to send a form of appointment, it never did so, it claims, because of Ms. Calamusa's death. Thus, The Center was neither permitted to appeal the denial of coverage on its own, nor authorized to appeal it as Ms. Calamusa's representative.
Because 42 U.S.C. § 405(g) is the "sole avenue for judicial review for all `claims arising under' the Medicare Act," Heckler, 466 U.S. at 615 (citing Weinberger, 422 U.S. at 760-61), the Court may not simply disregard the problem of The Center's entitlement to seek judicial review of the denial of coverage at issue. This is so notwithstanding that the notice sent to The Center by the Appeals Council did not specify that The Center needed a form of appointment to proceed. It is not changed by the Court's assessment that the appeal may well have merit.
In addition, the Court cannot simply dismiss defendant's motion without prejudice and require plaintiff to obtain a form of appointment from Ms. Calamusa's estate to pursue the present action, as plaintiff suggests in its reply letter. First, the regulations clearly contemplate that a form of appointment be obtained at one of the stages of administrative review. See 24 C.F.R. § 404.1707. Indeed, they require that the form of appointment be filed with the entity conducting the particular stage of administrative review for which representation is sought. (See id.) Moreover, 42 U.S.C. § 405(g) allows an individual to appeal a final decision "made after a hearing to which he was a party," and the execution of a form of appointment at this stage by Ms. Calamusa's estate cannot retroactively make Ms. Calamusa a party to the administrative hearing which produced the final decision that The Center now seeks to appeal.
Whether such an appointment, if obtained, would permit plaintiff to reinstitute administrative proceedings on the claim at bar is an issue which this Court need not address at this time; indeed, it is without jurisdiction to provide such an advisory opinion.
In summary, the Court agrees with defendant that it lacks subject matter jurisdiction over this action. Therefore the action will be dismissed, without prejudice, on that basis. Due to the absence of such jurisdiction, the Court also dismisses plaintiff's cross-motion for summary judgment without reaching its merits.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is granted. Plaintiff's cross-motion for summary judgment and this action in its entirety are dismissed, without prejudice, for lack of subject matter jurisdiction.
O R D E R
For the reasons set forth in the Court's Opinion filed herewith,
It is on this day of January, 1999, ORDERED that:
1. Defendant's motion to dismiss for lack of subject matter jurisdiction be, and it hereby is, granted; and
2. Plaintiff's cross-motion for summary judgment be, and it hereby is, dismissed, without prejudice; and
3. This action is dismissed, without prejudice, in its entirety, for lack of subject matter jurisdiction.