Case Information
‐ ‐ cv Barrows v. Burwell
In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. ‐ ‐ cv
L EE B ARROWS , ET AL .,
individually behalf all others similarly situated, Plaintiffs ‐ Appellants ,
v .
S YLVIA M ATHEWS B URWELL , Health Human Services,
Defendant ‐ Appellee .
Appeal United States Connecticut. No. 3:11 cv ― Michael P. Shea, Judge .
A RGUED : O CTOBER D ECIDED : J ANUARY
Before: W INTER W ALKER C ABRANES , Circuit Judges .
In putative class action lawsuit, plaintiffs appellants sue the Secretary of Health Human Services (“Secretary”) behalf of Medicare beneficiaries who were placed into “observation status” by their hospitals rather than being admitted as “inpatients.” Because “inpatients” are covered by Medicare Part A, while patients in “observation status” covered by B, placement into “observation status” allegedly caused these pay thousands dollars more their medical care than they would had formally been as “inpatients” their hospitals.
The United States District Court the District Connecticut (Michael P. Shea, Judge ) granted Secretary’s motion dismiss complaint in its entirety. Plaintiffs now appeal dismissal two nine claims, together assert violated Act federal Due Process Clause failing provide expedited notice decisions place them into status,” expedited opportunity challenge decisions.
For reasons follow, District Court’s judgment affirmed in part vacated in part. Specifically, we affirm dismissal plaintiffs’ Act claims substantially reasons stated in District Court’s opinion; vacate, however, dismissal plaintiffs’ claims. Court erred concluding lacked treated “inpatients,” because, so concluding, accepted true Secretary’s assertion hospital’s decision *3 formally admit patient is “a complex medical judgment” left doctor’s discretion. That conclusion, however, constituted impermissible finding fact, in any event inconsistent with complaint’s allegations decision admit is, in practice, guided by fixed objective criteria set forth in “commercial screening guides” issued by Centers for Medicare & Medicaid Services (“CMS”). Treating complaint’s allegations as true, as must this stage, plaintiffs appellants arguably asserted property interest protected federal Due Process Clause.
Accordingly, District Court’s judgment AFFIRMED in part, insofar as it dismissed plaintiffs’ Act claims, VACATED part, insofar it dismissed plaintiffs’ Clause claims. cause REMANDED Court, with instructions permit period limited discovery, focused fact possessed interest hospitals “inpatients.” In judicial economy, any future appeals taken Court’s decisions shall referred panel.
A LICE B ERS (Gill Deford, Center Advocacy, Inc., Willimantic, CT; Anna Rich, National Senior Citizens Law Center, Oakland, CA, brief ), Center Advocacy, Inc., Willimantic, CT, Barrows, et al., Plaintiffs Appellants . *4 J EFFREY A. C LAIR (Stuart F. Delery, Assistant Attorney General, Adam C. Jed, Michael S. Raab, United States Department Justice, Civil Division, Appellate Staff, Washington, DC; Deirdre M. Daly, United States Attorney for Connecticut, brief ), United States Department Justice, Civil Division, Appellate Staff, Washington, DC, for Burwell, Defendant Appellee .
Mark G. Arnold, Husch Blackwell LLP, Clayton, MO, Amicus Curiae American Health Care Association .
Edith M. Kalls, Whatley Kallas, LLP, New York, NY, Amici Curiae American Medical Association, et al.
Catherine E. Stetson, Hogan Lovells US LLP, Washington, DC, Amicus Curiae American Hospital Association .
J OSÉ A. C ABRANES Circuit Judge :
In putative class action lawsuit, appellants sue Health Human Services (“Secretary”) behalf who were placed into status” hospitals rather than “inpatients.” *5 Because “inpatients” are covered by Medicare Part A, while patients in “observation status” covered by B, placement into “observation status” allegedly caused these to pay thousands of dollars more their medical care than they would had formally been as “inpatients” to their hospitals.
The United States District Court the District Connecticut (Michael P. Shea, Judge ) granted the Secretary’s motion dismiss the complaint in its entirety. Plaintiffs now appeal the dismissal two nine claims, which together assert that violated Act federal Due Process Clause failing provide expedited notice decisions place them into status,” an expedited opportunity challenge decisions.
For reasons follow, District Court’s judgment affirmed in part vacated in part. Specifically, we affirm dismissal plaintiffs’ Act claims substantially reasons stated in District Court’s opinion; vacate, however, dismissal plaintiffs’ claims. Court erred in concluding lacked in treated “inpatients,” because, so concluding, accepted true Secretary’s assertion hospital’s decision formally admit patient “a complex medical judgment” left doctor’s discretion. That conclusion, however, constituted impermissible finding fact, any event inconsistent with complaint’s allegations decision admit is, *6 practice, guided by fixed objective criteria set forth “commercial screening guides” issued by Centers for Medicare & Medicaid Services (“CMS”). Treating complaint’s allegations true, must this stage, ‐ appellants arguably asserted protected federal Clause.
I. BACKGROUND A. Statutory Framework “the federal government’s health ‐ insurance program elderly.” [1] It contains four distinct programs, two relevant here.
The first, Part A, titled “Hospital Insurance Benefits Aged Disabled.” [2] It “provides basic protection against costs hospital, related post hospital, home health services, hospice care for, among others, eligible people over 65 years age.” [3] Most relevant case, A creates entitlement coverage “inpatient hospital services” “post ‐ extended care services.” [4] term “inpatient” undefined Conn. Dep’t Soc. Servs. v. F.3d Leavitt 428 141 (2d Cir. (citing 2005) Act (Title XVIII Social Security Act), U.S.C. § et seq. ). U.S.C. §§ 1395c–1395i 5. Estate Landers Leavitt v. (2d F.3d 2008) Cir. (internal quotation marks omitted).
statute, but Secretary, through CMS—an office within Department of Health and Human Services that administers Medicare—has defined an inpatient as “a person who has been admitted to a hospital bed occupancy purposes of receiving inpatient hospital services.” [5] In Estate Landers , we treated CMS definition as “persuasive” under Skidmore v. Swift & Co. , [6] and held that “a beneficiary is not an inpatient within meaning [4] 42 U.S.C 1395d(a). §
[5] Benefit Policy CMS Manual, Pub. No. (“Medicare 100 ‐ 02, Policy Manual”) Ch. 1, § 10; see also id. (“Generally, a patient considered an inpatient if formally inpatient with expectation that he she will remain at least overnight and occupy bed even though it later develops that patient can discharged transferred to another hospital not actually use bed overnight.”).
[6] In Estate , Landers we explained that under so “ called Skidmore deference,” we give effect an agency’s non legislative interpretation statute “to extent find it persuasive.” 545 F.3d at 105 (citing Skidmore v. Swift & Co. , U.S. 134 (1944)); see id. at 107 (“An agency interpretation does qualify Chevron deference still entitled ‘respect according its persuasiveness,’ . . . evidenced ‘the thoroughness evident [the agency’s] consideration, validity its reasoning, its consistency with earlier later pronouncements, all those factors give it power persuade[.]’” (quoting United States v. Mead Corp. , U.S. (2001))). By contrast, “ Chevron deference” given administrative implementation statute “’when it appears Congress delegated authority agency generally make rules carrying force law, agency interpretation claiming deference was promulgated exercise authority.’” Rotimi v. Gonzales , F.3d (2d Cir. 2007) (quoting Mead U.S. 226–27); see Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc. U.S. (1984).
§ 1395x(i) unless he or she has been formally admitted a hospital.” [7]
second program, Medicare Part B, is titled “Supplementary Medical Insurance Benefits Aged Disabled.” [8] It “a is voluntary program supplemental offering insurance coverage those persons already enrolled Medicare ‘Part A’ program.” [9] Part B “covers visits doctors certain other outpatient treatment.” Because [10] patients who are placed into status” are treated as “outpatients” by CMS, care is covered by Part B. [11] Therefore, a beneficiary’s coverage under A Part B turns *9 whether hospital services were provided on an “inpatient” or “outpatient” basis. And as noted above, distinction turns entirely whether patient was “formally admitted” hospital. It possible for a patient spend several days nights a hospital without ever formally admitted; such a patient, for purposes, would be treated as an “outpatient” his or her care would covered Part B.
amount a beneficiary pays out pocket varies significantly based services provided were covered under Part A Part B. For instance, if a beneficiary receives hospital services an inpatient under Part A, there a one ‐ time deductible first days hospital. [12] By contrast, if beneficiary receives hospital services an outpatient under B, he she will owe co payment each service received. Moreover, will only cover cost post hospitalization care skilled nursing facility (“SNF”) if such treatment provided “after transfer hospital [the individual] was inpatient not less than consecutive days before his discharge.” Therefore, patients who placed into status” never formally will qualify U.S.C. § 1395e. id. § 1395cc(a)(2)(A). *10 for Medicare ‐ covered SNF care, even if they hospitalized for three or more consecutive days.
B. Facts Procedural History On November filed putative class action complaint, which asserts, inter alia Secretary’s use “observation status” deprived them Part A coverage which they were entitled. Each named plaintiff alleges they were charged hundreds dollars in co ‐ payments under Part B, well thousands dollars more for post ‐ hospitalization SNF care, despite fact received hospital services substantially similar those provided “inpatients” three more consecutive days. For example, plaintiff Sarah Mulcahy alleges that, June (when she was years old), she was taken emergency room after suffering severe pain, urinary incontinence, nausea resulting fall. She was hospitalized status” five days, during time she received intravenous medications, chest rib X ‐ rays, CT scan her head. She later received Summary Notice (“MSN”) *11 stating that she owed approximately $335 Part B co insurance payments. Moreover, because never formally admitted her, she bore entire cost her subsequent SNF care from June October 7, 2010—a total approximately $30,000.
Plaintiffs allege that is, at minimum, indirectly responsible these harms. First, assert that frequency with which placed on observation status, well average time spent observation status, both increased “dramatically” recent years. Plaintiffs attribute increases, part, financial incentives created billing rule—namely that, “[i]f beneficiary admitted but admission later found be improper, *12 hospital must refund the Part A payment but cannot rebill under Part B.” [19] This rule allegedly gives hospitals “an incentive place patients observation status because that placement least ensures hospital will receive some payment stay hospital.” [20] Moreover, according plaintiffs, hospitals have become increasingly concerned with post ‐ payment reviews, because “Recovery Audit Contractors have been carefully reviewing admissions, especially short term admissions.” [21]
Based and other factual allegations, complaint pleads nine causes action against Secretary, including violations [22] Act, Administrative Act, Procedure [23] Freedom Information Act, [24] Clause. [25] *13 principal relief sought permanent injunction would: (1) prohibit the Secretary “from allowing Medicare to be placed on observation status and thus to deprive them of Medicare A coverage to which entitled”; (2) direct the Secretary “to provide written notification, to ensure written notification provided, any Medicare beneficiary who placed on observation status of the nature of the action, of the consequences coverage, of right administrative and judicial review of action”; (3) direct Secretary “to establish procedure administrative review decision place beneficiary observation status, including right expedited review.”
On January 9, 2012, moved dismiss complaint its entirety, September 23, 2013, District granted motion. On October Court entered final judgment Secretary.
Plaintiffs timely appealed Court’s dismissal claims six seven complaint. Claim six asserts Secretary’s “failure provide written notification Joint App’x (Compl. ¶¶ 104–05) (citing “Due Clause Fifth Amendment,” states “[n]o person shall . . . deprived life, liberty, property, without due process law”). Joint App’x 47. Plaintiffs did appeal dismissal other seven claims.
beneficiaries, require that receive written notification, of their placement on observation status, of consequences of placement their Medicare coverage, and of their right challenge placement[,] violates Medicare statute, U.S.C. §§ 1395ff and 1395w 22(g), and Due Process Clause of Fifth Amendment.” Claim seven asserts Secretary’s “policy providing Medicare beneficiaries with right administrative review, including expedited review, placement observation status violates statute, U.S.C. §§ 1395ff 1395w 22(g), Due Process Clause Fifth Amendment.”
Therefore, considered together, two claims appealed allege Secretary’s failure provide expedited system notice administrative review regarding placement into status” violated: (1) Act (2) Clause. sole question appeal erred dismissing two claims.
II. DISCUSSION
We review de novo district court’s dismissal complaint pursuant Federal Rule Civil Procedure 12(b)(6), accepting *15 true all factual allegations in the complaint, drawing all reasonable inferences in plaintiff’s favor. [30] To survive Rule 12(b)(6) motion to dismiss, complaint must plead “enough facts to state claim to relief is plausible its face.” [31]
A. Medicare Act Claims
As District Court’s dismissal of plaintiffs’ Act claims, affirm substantially reasons articulated in Court’s thorough opinion. First, plaintiffs lack standing challenge adequacy of notices they received. Second, nothing statute entitles process changes seek— i.e. , expedited notice of placement into observation status, an expedited hearing challenge this placement.
As explained, Act only requires receive written notice receipt of claim benefits, must state whether beneficiary entitled coverage, whether such coverage will provided under A Part B. [32] This written notice called Carpenters Pension Trust Fund St. Louis v. Barclays PLC F.3d (2d Cir. 2014). Bell Atl. Corp. v. Twombly U.S. (2007). Summary Notice (“MSN”), it summarizes the patient’s activity for most recent three month period. If MSN states that benefits have been denied, then it must state: (1) reasons denial; (2) procedures obtaining additional information concerning denial; (3) notification right seek a redetermination or to otherwise appeal *17 entitle beneficiaries who are immediately or initially placed into “observation status” to any form expedited process or status.” The District Court dismissed claims on sole ground plaintiffs did not possess a property interest their hospitals “inpatients.” Because determination relied upon a factual finding could not made on a motion dismiss, vacate District Court’s dismissal of plaintiffs’ Due Process claims remand limited discovery.
1. Legal Standards
Due Process Clause “imposes constraints governmental decisions deprive individuals ‘liberty’ or ‘property’ interests within meaning” Fifth Amendment. [37] To state Due Process claim, a plaintiff must show that: (1) state action (2) deprived him or her liberty or property (3) without due process law. [38] Here, Court solely focused plaintiffs were deprived protected interest property liberty. [39]
We long held procedural due process protections “attach where state federal law confers entitlement benefits.” A “mere ‘unilateral expectation’” receiving benefit, Mathews v. , Eldridge U.S. (1976).
however, enough—“a property interest arises only where one has a ‘legitimate claim of entitlement’ benefit.” [41] In determining whether given benefits regime creates a “legitimate claim of entitlement” such benefits, ask statutes regulations governing distribution of benefits “’meaningfully channel[] official discretion by mandating defined administrative outcome.’” [42] If official discretion so limited, then of governmental program may possess protected by Clause.
For example, Kapps , applicants for New York’s Home Energy Assistance Program (“HEAP”) claimed administrators of HEAP violated their procedural due process rights when they denied applications HEAP benefits without hearing. We found New York law set “fixed” “objective” eligibility criteria receipt HEAP benefits—such income, [40] Kapps v. Wing , 404 F.3d 105, 113 (2d Cir. 2005) (citation omitted); see also Goldberg v. Kelly , 397 U.S. 254, 262 (1970) (procedural due process applies termination welfare benefits because “a matter statutory entitlement persons qualified receive them”); Kraemer v. Heckler , 737 F.2d 214, 222 (2d Cir. 1984). Kapps , 404 F.3d 113 (quoting Board Regents State Colleges v. Roth , U.S. 456, (1972)). Id. (quoting Sealed v. Sealed F.3d 51, (2d Cir. 2003)); see Ky.
Dep’t Corr. v. Thompson U.S. (1989) (a “legitimate claim entitlement” created “placing substantive limitations official discretion” (internal quotation marks omitted)).
household size, enrollment other welfare programs—and that anyone who met these eligibility criteria was entitled receive HEAP benefits. Because criteria were “precisely type discretion limiting ‘substantive predicates’ are hallmarks protected property rights,” held plaintiffs possessed “a valid property interest receipt regular HEAP benefits.”
2. Analysis
Here, Court held lacked a admitted a hospital as “inpatients,” because decision—whether admit a patient—is “a complex medical judgment” left doctor’s discretion. In so concluding, relied primarily Policy Manual, states that:
physician other practitioner responsible for a patient’s care at hospital responsible deciding patient should an inpatient. Physicians should use ‐ hour period benchmark, i.e., should order admission patients who expected need care hours more, treat other patients outpatient basis. However, decision admit patient complex medical *21 judgment which can made only after physician has considered a number factors, including patient’s medical history and current medical needs, types facilities available inpatients and outpatients, hospital’s by laws and admissions policies, relative appropriateness treatment each setting.
therefore accepted as true Secretary’s assertion hospital’s decision admit a beneficiary “inpatient” was left discretion “medical judgment” treating physician.
However, plaintiffs’ complaint contains plausible allegations that, increasingly, admission decisions left discretion judgment treating physicians. Specifically, complaint alleges decision admit patient is—in practice—made through rote application “commercially available screening tools,” directed centers Medicaid Services (“CMS”), which substitutes medical judgment treating physicians. Plaintiffs allege CMS exerts pressure hospitals through its billing policies through its retroactive “Recovery Audit Contractor” reviews, give hospitals incentive—as cost saving compliance measure—to *22 place more Medicare beneficiaries into status” longer periods time. Therefore, drawing all reasonable inferences in favor plaintiffs, these allegations show Secretary—acting through CMS—has effectively established fixed objective criteria when admit Medicare beneficiaries as “inpatients,” that, notwithstanding Policy Manual’s guidance, hospitals apply criteria when making admissions decisions, rather than relying judgment their treating physicians.
Therefore, dispositive issue—whether plaintiffs possess property interest sufficient state claim—turns facts are, at stage, contested. If are able prove allegation CMS “meaningfully channels” discretion doctors providing fixed objective criteria when patients should admitted, then could arguably show qualifying beneficiaries protected in treated “inpatients.” However, if correct and, fact, admission decisions are vested medical judgment treating physicians, then would lack any such *23 property interest. At stage, it simply unknown how, in practice, relevant admissions decisions are made. Court therefore erred in dismissing plaintiffs’ claims at motion to dismiss stage on sole ground
that plaintiffs had failed satisfy “property interest” prong due process analysis.
To be clear, we take no position whether plaintiffs ultimately will be able establish that these hospitals, at behest CMS, admitted patients using “fixed” criteria, or that, if they did, these plaintiffs fact met those criteria. Moreover, we take no position regarding plaintiffs have pleaded facts sufficient establish other two prongs due process analysis did not address are not challenged appeal— i.e. “inpatient” decision constituted state action, process provided challenge “inpatient” decision was inadequate. Finally, take no position regarding what form notice administrative review, expedited otherwise, would required if who satisfy “fixed” criteria are denied admission “inpatient.” However, because stated plausible claim they possessed hospitals “inpatients,” entitled test factual allegations discovery. *24 Accordingly, vacate the District Court’s dismissal of claims six seven, to the extent these claims assert violations of the Clause.
On remand, the District Court directed to supervise a limited period of discovery. This discovery period will be focused on the sole issue of whether possessed a property interest in being admitted to their hospitals “inpatients,” which, as stated above, turns a factual determination—namely, whether the decision admit patients to these hospitals was “complex medical judgment” left the treating physicians’ discretion, whether, in practice, the decision was made by applying fixed criteria set by federal government. Court will then, in first instance, determine evidence adduced in discovery establishes possess property interested hospitals “inpatients.”
In of judicial economy, any renewed appeal this case will be assigned this panel. We will, however, only authorize appeal final judgment. If, after period discovery, grants summary judgment ground evidence fails establish interest, an appeal will then be authorized normal course. However, if *25 the District Court concludes the evidence establishes that plaintiffs do interest, there material issues of fact preclude summary judgment to issue, it is directed analyze the complaint is properly dismissed on the other two prongs of the due process analysis— i.e. , “state action” “due process.” If this analysis leads the District Court dismiss the complaint on either of those two prongs, may also renew appeal in the normal course.
However, if material issues disputed fact preclude grant summary judgment either party on “property interest” prong, if dismissal appropriate either other two prongs, District may permit parties, extent necessary, engage additional discovery regarding “state action” “due process.” At completion discovery period, case shall return us only upon final judgment entered by District Court—either response motion summary judgment conclusion whatever trial proceeding deemed appropriate Court.
CONCLUSION
For reasons set forth above, AFFIRM Court’s judgment October 10, part, insofar it dismissed issue completely separate from merits action; (3) effectively unreviewable appeal final judgment. MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, Inc. F.3d 383–84 (2d Cir. 2006); see Coopers & Lybrand v. Livesay U.S. (1978).
plaintiffs’ Act claims, VACATE part, insofar it dismissed plaintiffs’ Clause claims, REMAND cause further proceedings consistent with this opinion. In judicial economy, any future appeals taken Court’s decisions shall referred panel.
[7] 545 F.3d 111 (emphasis supplied).
[8] 42 U.S.C. §§ 1395j–1395w 5.
[9] Furlong v. Shalala F.3d 227, (2d Cir. 2001).
[10] Matthews v. Leavitt F.3d n.1 (2d Cir. 2006) (emphasis supplied).
[11] U.S.C. § 1395k; see Policy Manual, Ch. § 20.6(B) (“When physician orders a patient receive observation care, patient’s status an outpatient.”); id. § 20.6(A) (defining “Outpatient Observation Services” as “set specific, clinically appropriate services, include ongoing short term treatment, assessment, reassessment before decision can be made regarding patients will require further treatment as hospital inpatients if able discharged from hospital”); id. § 20.2 (“A hospital outpatient person who has been hospital inpatient but registered hospital records an outpatient receives services (rather than supplies alone) . . . .”).
[14] Id. § 1395x(i) (emphasis supplied).
[15] See Estate Landers F.3d (“[I]n determining beneficiary has met statutory three day hospital stay requirement needed qualify post hospitalization SNF benefits under A, time patient spends emergency room observation status before formally does count.”) (emphasis supplied).
[16] Joint App’x 38–39 (Compl. ¶¶ 78–82).
[17] As noted, [p]laintiffs received notice Part B coverage coinsurance charges via [MSNs], they typically received several weeks months after discharged from hospital. It fair inference Complaint many Plaintiffs were not aware, during period hospitalization, were observation status rather than inpatients. For most, if not all, Plaintiffs, MSN was first indication services would covered under B, Part A. Bagnall v. Sebelius No. Civ. WL *4 n.2 (D. Conn. Sept. 23, 2013).
[18] Joint App’x (Compl. ¶ 5).
[19] Joint App’x 30 (Compl. ¶ 46). After this complaint was filed, promulgated rule designed curb financial incentive. See 42 C.F.R. § 414.5. Under new rule, if hospital determines beneficiary’s inpatient admission was reasonable necessary, beneficiary should been treated outpatient, hospitals may nonetheless seek reimbursement under Part B, provided beneficiary enrolled B timely submits Part B claim.
[20] Id.
[21] Id.
[22] See Joint App’x 44–46 (Compl. ¶¶ 99, 101, 104–07) (citing U.S.C. §§ 1395d(a), 1395hh(a)(2), 1395ff & 1395w 22(g)).
[23] See Joint App’x 44–45 (Compl. ¶¶ 103) (citing U.S.C. §§ & 706(2)(A)).
[24] Joint App’x (Compl. ¶ 102) (citing U.S.C. § 552(a)(1)(D)).
[28] Joint App’x (Compl. ¶ 104).
[29] Id. (Compl. ¶ 105).
[32] U.S.C. § 1395ff(a)(1) (stating relevant part “[t]he shall . . . make initial determinations with respect benefits under part A this subchapter part B subchapter accordance with those regulations following: (A) [t]he initial determination individual entitled benefits under such parts[;] (B) [t]he initial determination amount
determination.
[33] MSN informs their right challenge determination that received observation services covered under B. It is undisputed has complied with other requirements. Plaintiffs’ sole argument merits is U.S.C. § 1395ff(b)(1)(F) entitles a beneficiary who placed “observation status” expedited notice or administrative review. This provision, however, only applies when a seeks “to terminate services” or “to discharge individual from provider services.”
[34] It clear both statute our precedent beneficiary who status” has not yet been formally hospital. He or she has therefore not experienced termination services discharge .
[35] Accordingly, § 1395ff(b)(1)(F) does benefits available individual under such parts[; and] (C) [a]ny other initial determination with respect claim benefits under such parts . . . .”).
[33] See id. § 1395ff(a)(4)(A).
[34] id. § 1395ff(b)(1)(F) (providing expedited proceedings individuals who received notice provider services plans “to terminate services” “to discharge” them).
administrative review.
[36] Because plaintiffs have failed to allege plausible statutory violation, affirm Court’s dismissal claims six seven, to extent these claims assert violations Act. B. Due Process Claims Claims six seven allege Secretary violated plaintiffs’ rights under federal Clause by: (1) failing provide, to require hospitals to provide, written notification informing beneficiaries were placed “observation status”; (2) failing provide beneficiaries with right expedited administrative review placement
[35] C.F.R. § 405.1205(a)(2) (defining “discharge” “formal release beneficiary from inpatient hospital”).
[36] Secretary concedes who are downgraded “inpatient” status” are entitled expedited process under C.F.R. § 405.1206(a). As requirement, however, complaint only alleges that: (1) plaintiff who had his status changed did not receive requisite notice; (2) another plaintiff who received such notice was not informed her appeal rights. As correctly noted, however, “these allegations do state claims against Secretary,” because hospitals charged with providing requisite notice. Bagnall WL *19 . Accordingly, failed allege plausible claim that, two cases, violated Act any implementing regulation providing inadequate notice.
[38] Am. Mfrs. Mut. Ins. Co. v. Sullivan U.S. (1999).
[39] Because concluded lacked sufficient support claim, it did address other two prongs analysis— i.e. state action due process.
[43] Kapps F.3d 118.
[44] Policy Manual, Ch. § 10.
[45] Joint App’x (Compl. ¶ 40).
[46] Joint App’x (Compl. ¶¶ 45–50).
[47] Carpenters Pension Trust F.3d 232; see Leeds v. Meltz F.3d (2d Cir. 1996) (“We take all well plead factual allegations true, all reasonable inferences drawn viewed light most favorable plaintiffs.”).
[48] Sealed F.3d (if administrative scheme “does not require certain outcome, but merely authorizes particular actions remedies, scheme does create ‘entitlements’ receive constitutional protection”).
[49] U.S.C. § (“The courts appeals . . . shall jurisdiction appeals all final decisions district courts United States . . . .”). However, an exception final judgment rule provided “collateral order doctrine,” under there can an interlocutory appeal an order that: (1) conclusively determines disputed question; (2) resolves important