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September 23, 1983


The opinion of the court was delivered by: GREENE

 This action challenges a provision in the Medicare Act, 42 U.S.C. § 1395x(y)(2)(B), which denies reimbursement to a patient receiving extended care services in a non-Christian Science skilled nursing facility if, during the same spell of illness, the patient previously received extended care in a Christian Science facility.

 Plaintiff's decedent spent 30 days in a Christian Scientist home, for which she was reimbursed. She later entered a hospital, and after her hospital stay she entered a non-Christian Science skilled nursing facility, where she received 22 days of extended care. On account of 42 U.S.C. § 1395x(y)(2)(B), she was not reimbursed for this care even though patients who restricted their extended care to non-Christian Science facilities are eligible for 100 days' reimbursement. See 42 U.S.C. § 1395d(a)(2). Plaintiff, the executrix of the decedent's estate, has exhausted administrative remedies and now contends that the different standards violate the free exercise clause of the First Amendment and the equal protection and due process clauses of the Fifth Amendment.


 The government moved to dismiss plaintiff's complaint on the basis that the Court lacks subject matter jurisdiction, pointing out that 42 U.S.C. § 1395ff(b)(2) contains a jurisdictional minimum of $1,000 which plaintiff admittedly cannot satisfy, *fn1" and arguing that the Court cannot exercise general federal question jurisdiction under 28 U.S.C. § 1331 because of the limitation on judicial review contained in 42 U.S.C. § 405(h). *fn2" Upon consideration of the motion, the opposition thereto, and oral argument, the Court has concluded that because plaintiff's claim is based on the Constitution, and because there is no alternative method of securing judicial review of her claim, the Court is not barred from exercising jurisdiction over this lawsuit.


 The Medicare Act provides that the determination in the first instance "whether an individual is entitled to benefits under part A *fn3" . . . and the determination of the amount of benefits under part A . . . shall be made by the Secretary." 42 U.S.C. § 1395ff(a). Subsection (b) of that section provides that "any individual dissatisfied with any determination under subsection (a) . . . as to . . . (C) the amount of benefits under part A of this subchapter (including a determination where such amount is determined to be zero)" is entitled to an administrative hearing and to judicial review of the Secretary's final decision. The subsection goes on to state, however, that "judicial review [shall not] be available to an individual by reason of such subparagraph (C) if the amount in controversy is less than $1,000." 42 U.S.C. § 1395ff(b)(2). The dollar thresholds *fn4" in the Medicare Act were intended to avoid overburdening the courts. See, e.g., 111 Cong. Rec. 1536 (1965) (remarks of Senator Kennedy), quoted in Gray Panthers v. Schweiker, 209 U.S. App. D.C. 153, 652 F.2d 146, 151 n.12 (D.C. Cir. 1980).

 The basic issue presented by this case is similar to that addressed by the Supreme Court in Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). In that case, the Court was dealing with the provision of the Social Security Act, incorporated into the Medicare Act, which limits judicial review of decisions of the Secretary. Specifically, 42 U.S.C. § 405(h) provides as follows:

The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who are parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or an officer or employee thereof shall be brought under sections 1331 or 1346 of title 28 to recover on any claim arising under this sub-chapter.

 The Court concluded in Salfi that this provision means just what it appears on its face to provide: that a federal court does not have federal question jurisdiction under 28 U.S.C. § 1331 with respect to the recovery of claims under the Social Security Act.

 If that is all the Court in Salfi had said about the matter, the government's motion to dismiss would be well taken. However, the Court went on to state that a different situation would exist -- and presumably a different result would follow -- if no judicial consideration of constitutional challenges to statutory limitations were available. 422 U.S. at 762. *fn5" Finding no impediment to such challenges in the case before it, and because there was no such impediment, the Court found no fault with section 405(h). As Judge Wilkey, speaking for the Court of Appeals for this Circuit, has noted,

Since Salfi the various courts of appeal have grappled with the issue of whether section 405(h) precludes federal question jurisdiction when no alternative form of judicial review is available. Every court that has considered the issue has agreed that section 405(h) should be read so as to permit some avenue of judicial review for constitutional claims.

 National Assn. of Home Health Agencies v. Schweiker, 223 U.S. App. D.C. 209, 690 F.2d 932, 939 (D.C. Cir. 1982) (emphasis in original; footnotes omitted). ...

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