*1 III. CONCLUSION above, set forth all of the reasons
For of the dis- judgment
we REVERSE the case for and REMAND
trict court with this consistent proceedings
further
opinion. GIESSE,
Raymond Plaintiff- H.
Appellant, DEPARTMENT OF
SECRETARY AND HUMAN SER- HEALTH
OF Board,
VICES; Departmental Appeals Council; Appeals Kaiser Ohio; Plan of
Permanente Health Dispute Health Center for
Maximus
Resolution; Christiansen, Jeannie Health Plan of Permanente
Kaiser
Ohio, Defendants-Appellees. 06-4497.
No. Appeals,
United States Court
Sixth Circuit. Dec. 2007.
Submitted: April and Filed:
Decided *3 Hartman, D. Stephen
ON BRIEF: Associates, Giesze, To- Kerger & Craig R. Konen, Ohio, Betty J. ledo, Appellant. Attorney, Cleve- United States Assistant Special land, Ohio, Ferguson, Douglas C. Attorney, Assistant Chicago, United States I. IL, Sferra, Hurst, Anne Marie Sarah E. Plaintiff is an Ohio resident and an en- Eckler, Columbus, Ohio, Bricker & Bar- rollee in a Kaiser Medicare + Choice Leukart, Day, Cleveland,
bara J. Jones (“M C”)+ plan Plan. This private allows Ohio, Warner, Murray Lenson, Jane F. K. companies insurance to contract with the Berne, Cleveland, Ohio, Ulmer & Dennis government federal provide Fogarty, Cleveland, R. Davis Young, & benefits to enrollees. Ohio, Appellees. Giesse suffered a stroke on June 2003, and initially treated Metro- MERRITT, COLE, Before: Center, Health Medical a Kaiser affiliate. GRIFFIN, Judges. Circuit *4 His treating physician, Usharani, Tandra M.D., recommended that undergo Giesse GRIFFIN, J., opinion delivered the occupational therapy, speech therapy, and MERRITT, 708), the court. (p. J. physical therapy daily on a basis to reha- separate delivered a concurring opinion. physical bilitate the and mental skills lost COLE, 709-10), (pp. J. delivered a due to the stroke. separate dissenting opinion. 16, 2003, July On Giesse was transferred (“Aristocrat”), to Aristocrat Berea a skilled OPINION (“SNF”). nursing facility time, At this GRIFFIN, Judge. Circuit required Giesse still daily physical and oc- cupational therapy. later, Eight days Plaintiff-appellant Raymond on ap- Giesse July 24, 2003, Aristocrat’s peals Director Jean- grant the district court’s of two mo- nie orally Christiansen notified tions to Giesse’s subject dismiss for lack of matter son, attorney Chile, jurisdiction residing after he filed a seeking suit daily Giesse’s SNF benefits would be ter- damages subsequent to an alleged wrong- July 31, minated on 29 or 2003. Christen- ful termination of medical care. Plaintiff sen also informed Giesse’s son that Giesse argues that the jurisdic- district court had would receive a three-day written notice to tion over his claims because he has a vest- facility. leave the Her stated rationale for “property ed interest” in receipt termination of SNF benefits was that benefits, Medicare and that the termi- Giesse “plateau.” had reached a benefits, nation of these adequate without process, due deprivation amounted to a 28, July 2003, On orally Christiansen his rights. constitutional Because he al- notified Giesse that he would be trans- leges claims, constitutional and because ferred to another facility. Christiansen these “wholly claims are collateral” to his Giesse a written notice of claims, administrative plaintiff contends non-coverage that stated that Medicare that his federal claims do not “arise under” would not cover daily Giesse’s SNF bene- Act, Medicare and 1, 2003, therefore be fits August as of because he no addressed the district court. In longer required daily physical occupa- and alternative, plaintiff argues implied that an tional therapy. This notice also described right of action exists in the Medicare con- right Giesse’s the decision to text under Bivens v. benefits, Six Unknown Named terminate the appeal process, Agents the Federal Bureau Narcot- expedited available 72-hour appeal pro- ics, 388, 1999, 403 U.S. 91 S.Ct. 29 L.Ed.2d cess. sign Giesse refused to this notice of (1971). disagree We and affirm son, non-coverage until his who exercised judgment of the district court. power attorney, could review the docu- decision no matter because reconsidered the above received son ment. Giesse’s 26, 2004, 31, May Giesse had been made. On July notice Appeals Council to the appealed Narra, Ammaji Dr. August On (“MAC”). request his The MAC denied ten- physician, consulting Kaiser again find- on October for review indicating necessary paperwork dered to an ALJ was not entitled ing that Giesse under Medicare eligible Giesse an admin- having care with intermit- received hearing homebound without B for Part That basis. outpatient on an tent care istrative determination. Es- Brookside day, Giesse moved
same on De- the instant lawsuit Giesse filed center, on his own tates, living an assisted 27, 2004, Dis- in the United States cember by selling accord, financing the move District of for the Northern trict Court At value. Brook- market far below house 14, 2005, Giesse filed an January Ohio. On occupa- Estates, physical, he side received raising procedural Complaint, Amended tional, therapy on intermit- speech claims, as well process due and substantive tent basis. tort, breach constitutional as federal filed a September On fraud, malpractice, re- contract, medical of the termi- for reconsideration request or reckless intentional spondeat superior, *5 In this daily benefits. of his SNF nation distress, addi- and emotional infliction of reconsideration, re- Giesse for request damages exemplary and punitive tional as a rescinded the decision be that quested of the ALJ’s sought review claims. Giesse for and asked matter” “purely procedural decision, in the amount monetary damages damages re- for monetary compensation in the $42,630, damages compensatory disbursements out-of-pocket from sulting $1,000,000, consequential dam- amount of fees, Estates, the attorney’s to Brookside $883,237.76,punitive ages in amount the residence, and personal of his sale distress $3,000,000, as amount of the damages did in damages. Giesse special unspecified SNF, In the attorney’s fees. to the and well as costs request to be readmitted nursing care. On daily alternative, sought reversal seek or otherwise Giesse re- 16, 2003, denied his Kaiser a remand for October decisions administrative and notified for reconsideration quest hearing with an ALJ. an administrative of the same. legal representation Giesse’s and Human Secretary of Health Both the it had submitted further stated Kaiser (“the Kaiser filed Secretary”) and Services for Health Maximus Center case to the the the Amended Com- dismiss motions to (“Maximus”) in- for an Dispute Resolution jurisdic- subject matter for lack of plaint Maximus, on external dependent, upon a claim failure state tion for 2003, 17, dismissed Giesse’s November August granted. On could be which relief “grievance” a case, as reading request file a sec- sought leave for medical than a “valid rather a seeking to raise complaint, ond amended stated further coverage.” Maximus Act Claims the Federal Tort claim under a permit us to make does not “Medicare (“FTCA”). complaints.” types of about these decision 27, court, September on The district 16, 2004, filed re- Giesse, January a on com- 2006, Giesse’s amended dismissed hearing before for an quest administrative subject lack of for prejudice plaint without (“ALJ”). Judge Law Administrative Giesse’s and denied jurisdiction matter 22, on March the case ALJ dismissed The complaint. amended to file second motion regula- federal 2004, finding that under appeal followed. the This jurisdiction no review it had tions 702 405(h) over, definitively judicial
II. re- bars legal challenges view of to the denial of This court reviews de novo the dismissal Supreme Medicare benefits. As the Court 12(b)(1) complaint of a under Fed.R.Civ.P. has noted: jurisdiction. Pipeline lack of for Colonial (6th Morgan, v. 217 Co. F.3d language applies] §of clearly [The 405] Cir.2007). When, however, the district Security in a Social typical or Medicare goes beyond complaint court analyzing case, benefits where an individual seeks its face and instead delves into the monetary agency benefit from the predicates jurisdiction, factual (say, disability payment, payment court reviews for clear Howard v. error. procedure), agency medical some Whitbeck, (6th Cir.2004). benefit, denies and the individual Additionally, jurisdic subject when matter challenges the lawfulness of that denial. challenged, tion is has plaintiff plainly The statute bars 1331 review jurisdiction proving burden order to case, irrespective such whether survive the motion to dismiss. Madisorn- challenges agency’s the individual (6th Shalala, Hughes F.3d rule-related, evidentiary, denial on statu- Cir.1996). constitutional, tory, legal or other Secretary has created adminis- grounds. process trative review allows Medi- enrollees, Giesse, care such challenge as Council, Illinois U.S. at + provid- adverse decisions M C their 1395w-22(g); ers. Thus, plain language of “[t]he § 422.560. Aside from administrative 405(h), 1395Ü, incorporated by pre as process, ju- Medicare Act bars *6 federal entertaining cludes the courts from dicial review of “arise claims that under” jurisdictional provi claims based on the 405(h), Act. language the The of section as Act, the sions of Federal Tort Claims incorporated 1395Ü, by § 42 U.S.C. reads: 28, § Title statutory grant 1346 of or the findings The and decision the Com- jurisdiction over questions, federal Security missioner of Social after a § Title if 1331 of the claims ‘arise hearing shall binding upon be all individ- under’ the Medicare Act.” Livingston Care parties uals who were hearing. to such Ctr., States, findings No Inc. United of fact or decision the (6th Cir.1991). Security Commissioner of Social shall 721 Supreme be Court by tribunal, reviewed any person, or and our have court both held that a claim governmental agency except as herein “arises under” the Medicare Act if the Act provided. No against action the United provides the “‘standing and substantive States, the Social Secu- Commissioner of presentation basis for the [plaintiffs] rity, any or other or employee officer constitutional contentions....’” Id. thereof brought shall be under section Salfi, 721-22 422 (quoting Weinberger v. 1331 or 1346 of Title 28 to recover on 749, 760-61, 95 U.S. S.Ct. 45 L.Ed.2d any claim arising under title. this (1975)). We plaintiffs conclude that 405(h). § 42 U.S.C. claims indeed “arise under” the Medicare Act, as he 405(h) contends that the harm he most, all, Section if not “channels “arbitrary suffered was the result of the through special Medicare claims re- capricious” system.” termination of his medical view Shalala v. Council Illinois Care, Long case, Term This being 120 benefits. the section U.S. (2000). 405(h) clearly prohibits judicial L.Ed.2d More- review of 42 U.S.C. its decision. reconsider exhaustion absent claims A § 422.578. 42 C.F.R. 1395w-22(g)(2); § remedies. administrative available thirty typically has organization +M C utilized procedures The administrative decision, 42 issue a reconsidered days to against claim addressing enrollee’s an 422.590(a)(2), provider if the but C.F.R. on whether depends organization M+C the pay or for service provide refuses as a challenge is classified enrollee’s necessary, medically believes enrollee “agen- appeal from or as an “grievance” expedited 72- may request enrollee “agency An determi- cy determination.” 422.584, §§ 42 C.F.R. hour as: nation” is defined 422.590(d). re- expedited for To qualify + by C] an [M made [A]ny determination must view, physician or the enrollee any of respect to organization request for the written an oral or submit following: M + C to the reconsideration expedited (1) out of temporarily Payment for 422.584(b)(1). services, emergency 42 C.F.R. dialysis provider. renal area care, ur- or services, submitted, organization M + post-stabilization C Once services. applica- needed gently review if provide expedited must ser- (2) peri- other health thirty-day for Payment of the standard tion than provider other by a furnished life or seriously jeopardize vices “could od that the enroll- organization + C] the [M or the enrollee’s of the enrollee health ee believes— function.” regain maximum ability to Medicare;
(i) or under Are 422.584(c)(2)(i). covered C.F.R. Medicare, (ii) under If covered earlier not reverse its If the M + C does furnished, arranged been should have decision, case to it must send the adverse + or- for, by C] the [M or reimbursed agen- dispute resolution outside health ganization. Maximus, independent re- for as cy, such (3) refusal organization’s The [M+C] 1395w-22(g)(4); view. services, or in whole pay or provide reviewing If outside § 422.592. type or level including the part, organization’s M + C upholds the agency services, believes the enrollee contro- determination, amount in arranged should be furnished $1,000, the at least enrollee versy is *7 organization. [M+C] the 42 an ALJ. hearing a before request a (4) of or reduction Discontinuation 42 C.F.R. 1395w-22(g)(5); § U.S.C. that con- if enrollee believes the service 422.600(a). disagrees the enrollee If § medically the services is tinuation of ALJ, may he of the the decision necessary. 42 case. the review request that the MAC (5) organization the [M+C] Failure of then may The enrollee § 422.608. C.F.R. for, furnish, pro- or arrange approve, decision, of the MAC’s judicial review seek health services care payment vide ALJ’s review of the may judicial seek or en- manner, the provide or to timely a the if the declines review MAC decision adverse notice timely of rollee with § 42 1395w- U.S.C. decision. ALJ’s determination, delay would such § 422.612. 42 C.F.R. 22(g)(5); the enroll- the health adversely of affect ee. grant of sub Act’s judi 422.566(b). only permits jurisdiction § ject matter 42 C.F.R. [the decision of final of “the cial review “agen- the disagrees with If an enrollee 42 hearing.” after Secretary] made provider, + the M C of cy determination” Thus, of judicial review 405(g). § provider the U.S.C. request the enrollee can 704 arising
claims
under the Medicare Act is
is to serve as a “catch-all” for
claims
only
available
the Secretary
after
renders
appeals
fall
of
outside
ambit
from ad-
a “final decision” on the enrollee’s claim.
A grievance
ministrative determinations.
602, 605,
Heckler Ringer,
466 U.S.
104
“any complaint
dispute,
is defined as
or
(1984);
S.Ct.
A grievance any “is complaint or daily appealable, nation SNF care are dispute, other than one that constitutes an only remedy but when sought organizational determination, expressing reinstatement of those services. Giesse aspect dissatisfaction with daily did not seek the reinstatement of + organization’s provider’s opera [M C] or tions, SNF, therapy Aristocrat or another nor activities, behavior, regardless of seek payments whether remedial action is 42 did he reimbursement requested.” Grievances, daily therapy 422.561. unlike or made to maintain at a SNF. ganizational determinations, do have sought He instead reimbursement pay beyond additional levels Estates, made to ments Brookside dam +M organization. C 1395w- ages resulting from the distress sale of his 22(f); 422.564(b). 422.562(b), §§ 42 C.F.R. residence, and other special damages. Be As there are additional no levels of review cause these are remedies unavailable beyond organization, the M + C there is no forms relief under the M + frame C “final Secretary decision” that al work, Kaiser was unable render an “or *8 judicial lows for review. Id. ganizational concerning determination” claim. An appeal Giesse’s is defined as framework,
Applying the above “procedures that deal the review we hold that the district court not err did organizational adverse determina in categorizing plaintiffs griev claims as § tions....” 422.561. Giesse ances, or, accurately, perhaps more we not seek does review of determination plaintiffs conclude that not ap claims are indeed, itself for purpose; substantive peals from an administrative determina he admits that he tion. The wishes Kaiser’s decision broad definition “grievance” procedural in 42 C.F.R. be as a purely 422.561 demon “rescinded mat grievance procedure’s strates the function that “only legal ter” and substantive foremost, plaintiff First monetary compensation for did remedy ... is damages----” this argument not raise either at dis it appeal, trict court level or on is however, We, plain- to not subscribe do See Farm therefore deemed waived. La reading of the Medicare glib rather tiffs Org. Highway bor Comm. Ohio State The or- procedures. appeal Act and its (6th Patrol, n. 308 F.3d Cir. determination, from which an ganizational 2002) (“It is well established that issue to may is not be aggrieved plaintiff appeal, not in party’s as a method raised a briefs be formality a treated as mere claim; Blatter, par- waived.”); a this is bootstrap damages to deemed Thaddeus-X v. Congress’ (6th un- light Cir.1999) true ticularly n. of suits outside equivocal prohibition argument (stating that raised of adverse appeals that seek review valid waived). Second, is initial brief we fail to See organizational determinations. plaintiff injured see how was this tem 405(h). To it otherwise read porary oversight. In Maximus’s denial let received plaintiff a future who would allow ter, plaintiff informed that his claim is organizational determination to an adverse properly categorized grievance. as a De proper not avail himself purposely notification, plaintiff spite did not elect proceed di- and instead procedures proceed through griev to the established damages. Such a rectly to court to seek framework, continued to ance but rather essentially nullify lan- result would claim through the denial his 405(h). guage of section for appeal channels reserved of adminis Kaiser, upon re that its We note He was also informed of trative decisions. appeal, did not jection redress, initial such as the other mechanisms of was consid complaint inform him that his Quality Complaint Health Plan Process Instead, Kaiser, a at this grievance. ered Quality Improvement Organization and the early have stage, appears treated Complaint in Kaiser’s initial notifi Process complaint appeal. In Kai Giesse’s as cation of discontinuation. rejection appeal, it ser’s written Giesse’s as Plaintiff offers two theories “[yjour appeal has been reviewed. stated jurisdiction why district court had over our initial deci did not overturn Since we suit, notwithstanding the clear the instant sion, you inform that hereby we wish to First, argues he language of that your file submitting for consid the Plan days “property he interest” in held Health [Maximus] eration to Center for Moreover, property of continuous SNF care. This Kaiser Dispute Resolution.” Maximus, “vested,” claims, upon Dr. complaint right plaintiff forwarded Giesse’s only an ad procedure that occurs after recommendation Ushavani’s decision is rendered. This ministrative argues He further receive such care. notify failure to Giesse of the classification vested, the burden shift once this interest 42 C.F.R. of his claim contravenes that he no provide ed to Kaiser to evidence 422.564, re requires “[u]pon which longer daily therapy. Plain needed SNF ceiving complaint, organiza Medicare] [a subsequent deprivation tiff states that the inform promptly tion must determine and interest, adequate property without complaint is sub enrollee whether the due constitutional amounted process, *9 ap its ject grievance procedures to its Board Edu violation under Cleveland procedures.” peal Loudermill, 470 U.S. cation v. (1985). 1487, 494 As 105 L.Ed.2d omission, however, S.Ct. 84 This does to amounted a constitu- judicial deprivation this plaintiff is entitled to mean 706 (1999). violation, any 977, 143
tional claim for redress is S.Ct. L.Ed.2d 130 Howev “wholly er, collateral” to a claim for Medicare no to explanation why offers as benefits, and therefore does not “arise un- Manufacturers, American which concerns Act, sidestepping der” the Medicare compensation benefits, worker’s relevant is 405(h), judicial permitting Indeed, to the instant case. American is useful insofar as the outset, argument at This is flawed Manufacturers plaintiffs Court held that the in that presupposes plaintiff insofar as it case has in “property right” days property vested 100 of did not have in medical interest post-hospital nursing 61, 119 SNF care. This benefits. Id. S.Ct. 977. apparently view is language based Congress Giesse also contends 1395d(a)(2)(A), of 42 U.S.C. which states: by enacting “overturned” Himmler (a) payment to inpatient Entitlement for § 1395w22(g)(l)(A). statute This services, hospital post-hospital extended states, in part, relevant that a “Medi- services, care home health services and + organization care Choice shall have a hospice care. procedure making determinations re- to benefits an individual garding ... whether individual is enti- by the insurance program under this to tled receive health service under this shall part consist of entitlement to have (if section and the amount any) payment or, made on in his behalf required pay individual respect to payments case referred to in section such similarly service.” Plaintiff does 1395f(d)(2) 1814(d)(2) of this him title on why not elaborate this statute nullifies (subject to provisions part) of this Himmler, the holding of but we assume it for— language is because the above could be as suggesting
read that an enrollee has entitlement, property right, and thus a in (2)(A) post-hospital extended ser- care receiving medical care. The lan- above vices for up days during spell to 100 guage actually undercuts entitle- of illness.... argument, ment as it demonstrates that have, however, We interpreted stat- services, if is an even there entitlement to ute stating opposite as of what plaintiff this entitlement can be as little as few say. Indeed, purports it to Himmler (or no) days, rather than an automatic (6th Califano, Cir.1979), grant 100-day maximum allowed we noted that Program “[t]he 1395d(a)(2)(A), under plain- 42 U.S.C. as ... directly provide any does not entitle- tiff contends. Without a property interest ment the medical services themselves.” care, days plaintiff of medical cannot Moreover, language only statute claim that he suffered a constitutional de- provides that a up enrollee receive privation, any claim a eliminating of Loud- days post-hospital extended care. ennill violation. Even after a physician initially certifies requires care, that an enrollee recer- SNF III. tification is required day on the fourteenth every days such care and at thirty alternatively argues Plaintiff 424.20(c)-(d). thereafter. 42 that the Supreme holding Court’s in Bow v. Michigan Academy Physi en Family responds Plaintiff that Himmler is no cians, good law, longer as it 476 U.S. has been overturned (1986), judicial American L.Ed.2d provides Mutual In- Manufacturers Sullivan, surance Co. v. 526 U.S. his claim. the narrow “Under
707
Academy
liability monetary penalties);
successor
to
Michigan
v.
reading of Bowen
667,
Rock,
106
(challeng-
476
223 F.3d at
Family Physicians,
U.S.
Cathedral
357
(1986),
2133,
adopted
623
90 L.Ed.2d
was
ing
facility
S.Ct.
HHS determination that
Long
in
v. Illinois Council
Shalala
compliance
program regula-
not in
Care, Inc.,
1, 120 S.Ct.
529 U.S.
tions).
Term
Here,
contrast,
by
does
plaintiff
(2000),
1084, 146
1
affected
parties
L.Ed.2d
challenge
regulation,
a rule or
but
determinations
by Medicare administrative
stemming
damages
rather seeks
from
28
under
sue
federal court
alleged wrongful
termination of care.
only
1331,
preclusion,
bypassing
405
option to
his ad-
Plaintiff had the
pursuant to
requiring agency review
where
determination, which would
ministrative
405(h)
all.”'
Vould mean no review at
in him
relief in the
obtaining
either result
503,
Care,
he lost in
In
benefits.
to
ment of the district court.
remedy
alleged
nize Bivens as a
for
consti-
mishandling
tutional
in
violations
the
MERRITT,
Judge, concurring.
Circuit
claims,
Security
Social
the Court acknowl-
edged
deprive
doing
that
so would
claim-
I am having
making
trouble
sense of
complete
ants of
relief in situations where
plaintiffs
Although
claims.
I hesitate to
they
wrongly
had been
denied benefits.
judgment
subject
rest our
on a lack of
428-29,
Id. at
(citing
Medicare Medicaid Services within the Department of Health and Human Ser- vices, Department questioned why ROSE, Jonathan Patrick Defendant- request labeled
Maximus Giesse’s for re- Appellant. grievance: as a consideration *13 No. 06-1642. we Although recognize that much of the being sought by appellant relief Appeals, United States Court of purview outside [Maximus’s] to act Sixth Circuit. interest, upon attorney’s fees, (e.g., com- pensation for personal distress sale of Argued: Jan. 2008. residence), question why we [Maximus] Decided and Filed: March 2008 * did not make a determination of the appropriateness of [Kaiser’s] decision to coverage daily
terminate inpatient
SNF benefits as of This 8/1/2003. be
seems to the exact kind SNF ter-
mination issue that [Maximus] fre- quently used
(JA 177; added.) emphasis prayer
Giesse’s for relief included a re-
quest for payment for services Estates,
Brookside which Giesse believed
should been have furnished reimbursed
by Kaiser. Kaiser’s decision related to is an request “organizational determi- subject
nation” to the Medicare would,
appellate process. therefore, I re-
verse judgment the district court’s
remand for an hearing. administrative * This originally opinion decision was issued as an "un- as one recommended for full-text published decision” filed on March publication. April designated On the court