Aquavella v. Finch, Civ. No. 1969-272.
| Decision Date | 01 October 1969 |
| Docket Number | Civ. No. 1969-272. |
| Citation | 306 F. Supp. 860 |
| Parties | James V. AQUAVELLA and Salmon Harvey, partners doing business as Glen Oaks Nursing Home, and Arista Development Corporation, Plaintiffs, v. Robert FINCH, Secretary of Health, Education and Welfare; the United States of America; and Aetna Life and Casualty Company, Defendants. |
| Court | U.S. District Court — Western District of New York |
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Nixon, Hargrave, Devans & Doyle, Rochester, N. Y. (Michael T. Tomaino and Donald R. Adair, Rochester, N. Y., of counsel), for plaintiffs.
H. Kenneth Schroeder, Jr., U. S. Atty. (Stephen S. Joy, Asst. U. S. Atty., of counsel), for defendants.
Plaintiffs Aquavella and Harvey are individuals doing business as Glen Oaks Nursing Home and have filed a complaint against all named defendants, alleging that the nursing home is and has been a provider of services pursuant to Title 42 U.S.C. § 1395 et seq., and that although as such it is entitled to reimbursement for reasonable costs as provided in those federal statutes, defendant Aetna, as agent for the Secretary of Health, Education and Welfare, has refused to make such payment. Plaintiffs further allege that the suspension of payments which has been ordered by the defendant secretary, if allowed to continue, will cause irreparable harm to the plaintiffs in that the payments in question constitute almost all of the revenue of the plaintiff nursing home and will force the dissolution of the business. Plaintiffs pray for a permanent injunction and money damages.
The parties are presently before the court in response to an order to show cause why a temporary restraining order should not be entered pursuant to Rule 65 of the Federal Rules of Civil Procedure. The defendants, in opposition to the prayer for a temporary restraining order, have moved to deny the same and to dismiss the complaint for lack of jurisdiction.
The affidavits attached to the moving papers shed some light on the facts. The plaintiff nursing home cares for elderly patients, 59 out of 60 of whom are patients under the federal Medicare program of the United States Government. The home executed an agreement with the defendant secretary on April 3, 1967, to participate in the furnishing of services to Medicare patients pursuant to Title 42 U.S.C. § 1395cc. So far as the papers before the court indicate, the home regularly received payments under the agreement until some time prior to April 1969, when a periodic review of an unaudited cost report submitted by the home identified it as one to which unusually large amounts had been paid for ancillary services. The home, therefore, was scheduled for an on-sight review of its Medicare operation for billing procedures. During the week of April 21, 1969, this review was held, and it is the contention of the defendants that the review revealed certain billing irregularities practiced by the home. In general, the claims of the defendants are that the alleged irregularities discovered are as follows: supplying unnecessary and excessive amounts of physical therapy; billing for therapy unrelated to the patient's illness; billing for recreational therapy not covered under the Act; and increasing the semi-private routine charge four times within one year from $32.50 per day to $52.00 per day without furnishing adequate evidence to show that actual costs had increased correspondingly. The audit further revealed, it is alleged, that the home has been extended current financing in excess of $96,000 as of July 14, 1969. It is claimed that the home has been paid large amounts for non-covered services, and the secretary therefore has instructed his fiscal intermediary to make no further payments to the home until a complete audit is performed, or until sufficient information is obtained from the home to verify that former payments were proper, or to determine the amount of overpayment due to improper payments.
Defendants have moved to dismiss the complaint on the grounds that the court lacks jurisdiction over the parties. The court will first address itself to that question for, absent jurisdiction, the court is powerless to issue the temporary restraining order requested by the plaintiffs. It is clear that the home has qualified as a provider of services under section 1395cc of Title 42 U.S.C. A subchapter of Title 42, concerning medical care to the aged, provides that judicial review may be had by an institution having the status of a nursing home in two situations. It may be entitled to a hearing under section 1395ff if dissatisfied with the secretary's determination that it is not a provider of services, or it is entitled to a hearing if the secretary should terminate the agreement filed under section 1395cc(b)(2). After such a hearing, section 1395ff provides for judicial review of the results of the decision reached after the hearing as provided in section 405(b), Title 42 U.S.C. Moreover, section 1395ii makes applicable to this subchapter section 405 (h) of Title 42 which provides: "No findings of fact or decision of the Secretary shall be reviewed * * * except as herein provided."
It appears, therefore, that Congress, in enacting this subchapter, provided for judicial review by an institution in only those two instances and intended that those judicial remedies be exclusive. Further evidence of this is contained in the report of the Senate Committee on Finance accompanying the legislation which recites at pages 54 and 55 that Report 404, part 1, 89th Congress, First Session, page 54. It seems clear, therefore, that the congressional provision for judicial review in these two specific instances was not intended to confer jurisdiction on federal courts to review all determinations involved in the payment to hospitals under this subchapter. The court, therefore, finds that it lacks jurisdiction and the complaint must be dismissed.1
On motion of the defendants, the complaint is dismissed for lack of jurisdiction.
It is so ordered.
The plaintiffs have moved for leave to amend...
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Aquavella v. Richardson, 188
...withholding reimbursement and to obtain other relief. By opinion dated July 30, 1969, the district court dismissed the complaint. 306 F.Supp. 860, 862-863. Plaintiffs soon thereafter ceased doing business as an extended care facility because of alleged weekly costs of $25,000, and the alleg......
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U.S. v. Aquavella
...counterclaims under Fed.R.Civ.P. 13 which should have been asserted in the original action brought by appellants. Aquavella v. Finch, 306 F.Supp. 860 (W.D.N.Y.1969), rev'd sub nom. Aquavella v. Richardson, 437 F.2d 397 (2 Cir. For the reasons below, we hold that the district court erred in ......