Jorg Bober v. Safe Guard Services, LLC
21-11529
| 11th Cir. | Oct 15, 2021Background
- CMS contracted Safe Guard Services to audit Dr. Jorg Bober’s podiatry practice for potential Medicare fraud.
- Safe Guard audited past Medicare payments, suspended Bober’s Medicare reimbursements, and processed his administrative appeal.
- Bober sued Safe Guard asserting tortious interference, defamation, negligence, negligent hiring/retention/training, and violation of Florida’s Deceptive and Unfair Trade Practices Act.
- The district court dismissed the complaint without prejudice for lack of subject-matter jurisdiction under 42 U.S.C. § 405(h)/(g) because Bober had not exhausted administrative remedies.
- The Eleventh Circuit reviewed jurisdiction de novo and considered whether the claims “arise under” the Medicare Act, which would require administrative exhaustion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bober’s common-law and FDUTPA claims “arise under” the Medicare Act | Bober: claims are independent of Medicare reimbursements or eligibility | Safe Guard/CMS: claims flow from CMS-authorized auditing/suspension actions and thus arise under the Medicare Act | Court: claims arise under the Medicare Act because they are based entirely on actions Safe Guard performed under CMS authority (i.e., would not have occurred but for the Medicare Act) |
| Whether failure to exhaust administrative remedies requires dismissal | Bober: no administrative exhaustion required for his state-law/tort claims | Safe Guard/CMS: 42 U.S.C. § 405(h)/(g) and precedent require exhaustion before judicial review | Court: exhaustion is required; because Bober did not exhaust, dismissal for lack of subject-matter jurisdiction was correct |
Key Cases Cited
- Heckler v. Ringer, 466 U.S. 602 (U.S. 1984) (broad construction of “arising under” and requirement to exhaust Medicare administrative remedies)
- Dial v. Healthspring of Ala., Inc., 541 F.3d 1044 (11th Cir. 2008) (Medicare Act precludes district-court claims that must proceed through administrative review)
- Miccosukee Tribe of Indians v. U.S. EPA, 105 F.3d 599 (11th Cir. 1997) (de novo review of jurisdictional dismissal)
- Midland Psychiatric Assocs., Inc. v. United States, 145 F.3d 1000 (8th Cir. 1998) (a claim may arise under the Medicare Act even if it also arises under other law)
- Weinberger v. Salfi, 422 U.S. 749 (U.S. 1975) (overlapping statutory and nonstatutory claims can be governed by a statutory administrative scheme)