Davis v. UNITED STATES DEPT. OF HLTH., ED. & WELFARE
| Citation | 416 F. Supp. 448 |
| Decision Date | 11 June 1976 |
| Docket Number | No. 75 Civ. 3002.,75 Civ. 3002. |
| Parties | Philip DAVIS, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, and Group Health Incorporated, Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
Bradley B. Davis, New York City, for plaintiff.
Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., for defendants; Nathaniel L. Gerber, Asst. U. S. Atty., Borge Varmer, Regional Atty., Region II, New York City, Annette Blum, Asst. Regional Atty., Dept. of Health, Education and Welfare, Washington, D. C., of counsel.
Philip Davis seeks a judgment declaring invalid certain hearing procedures established by the Secretary of the Department of Health, Education § Welfare (HEW) regarding disputed claims of medicare benefits under Title XVIII, Part B of the Social Security Act, 42 U.S.C. §§ 1395, et seq. Specifically, Davis alleges that the procedures for the appointment of persons who conduct hearings as to disputed claims resulted, in his and in all cases, in the appointment of a biased hearing officer and, therefore, violate his rights under the Act and the due process clause. Davis moves for summary judgment. Defendants move to dismiss for lack of jurisdiction and failure to state a claim.
Under Part B of the Medicare program, persons who enroll pay monthly premiums, matched by federal contributions, and are entitled to insurance benefits for covered services. See 42 U.S.C. §§ 1395y(a)(1), 1395k.
The Act authorizes the Secretary of HEW to promulgate regulations governing eligibility and review of disputed claims. See 42 U.S.C. § 1395ff. A dissatisfied claimant obtains review of disputed Part B claims by filing a request for reconsideration. The Secretary of HEW is authorized by statute to enter into agreements with health insurance carriers to perform certain functions, including the determination of the amount of reimbursement due individual claimants. Group Health Incorporated (GHI), a defendant in this case, is the insurance carrier in charge of Davis' claims.
The Act sets forth the manner in which hearings of disputed Part B claims are to be conducted and provides in pertinent part:
Pursuant to the Statute, the Secretary of HEW promulgated regulations which establish the hearing procedures and provide:
Davis, a Medicare beneficiary enrolled in Part B, submitted claims to GHI, the carrier for his region, for the costs of renting and purchasing certain medical equipment. A number of the claims were disallowed and Davis requested a hearing on the disputed items which was scheduled for May 29, 1975. When the hearing convened Davis' representative appeared and objected to the lack of impartiality of the hearing officer on the ground that he was an employee of and had been appointed by the carrier, GHI. The hearing was then terminated without prejudice to its reopening for the consideration of the merits of Davis' claims.
Defendants argue that the complaint should be dismissed for lack of jurisdiction. Although Davis' complaint bases jurisdiction only on "Federal question: all of the issues in dispute arise under the Medicare Law and the Constitution," his memorandum of law asserts jurisdiction under 28 U.S.C. §§ 1331, 1361 and 28 U.S.C. § 1346 as well.
However, it is unnecessary to determine whether jurisdiction exists under § 1331 or § 1346 because in any event jurisdiction lies under 28 U.S.C. § 1361. In Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975), the plaintiff, like Davis, asserted the right to a fair hearing. Judge Friendly, writing for the majority, held that the language of 28 U.S.C. § 1361, the mandamus statute, was "sufficiently broad to encompass a case like this where the sole issue is the type of hearing required." 515 F.2d at 62. Accord, Martinez v. Richardson, 472 F.2d 1121, 1125-26 (10th Cir. 1973); Elliot v. Weinberger, 371 F.Supp. 960, 967-68 (D.Hawaii 1974). Indeed, this case presents a clearer instance for mandamus jurisdiction because, unlike Frost, in this case the Secretary of HEW is statutorily obligated to ensure that the insurance carrier provides "an opportunity for a fair hearing," 42 U.S.C. § 1395u(b)(3) and the situation at hand thus more closely fits the traditional requirement for jurisdiction under § 1361 that the defendant have a clear duty to perform a non-discretionary act.
Moreover, as noted earlier, Davis contends that the Secretary's regulations violate not only the Act, but his rights under the due process clause. Mandamus is available for those who seek performance of constitutional duties. Andujar v. Weinberger, 69 F.R.D. 690(S.D.N.Y.1976); Brown v. Schlesinger, 365 F.Supp. 1204 (E.D.Va. 1973).
Defendants argue that Davis' complaint must be dismissed for failure to raise his objections before GHI, as provided in 20 C.F.R. § 405.824, cited above. That section states:
". . . If the hearing officer does not withdraw, the objecting party may present his objections to the carrier for consideration at any time prior to the issuance of a decision."
The contention is without merit because resort to administrative remedies is not required where the administrative agency, as here, is not empowered to grant the relief requested. See, e. g., Wallace v. Lynn, 507 F.2d 1186, 1189-90 (D.C.Cir.1974). The case at hand falls within that exception. Neither the hearing officer and the carrier, GHI, has authority to determine the constitutionality of the procedures they are directed to administer or whether those procedures conform to statutory requirements. Requiring Davis to await the hearing officer's decision or to appeal to the carrier would be an exercise in futility because he is not challenging his award under the health plan, but the procedures by which the amount is determined. Frost v. Weinberger, 375 F.Supp. 1312, 1320 (E.D.N.Y. 1974), aff'd, 515 F.2d 57 (2d Cir. 1975); Morris v. Richardson, 346 F.Supp. 494, 495 (N.D.Ga.1972).
Defendants are incorrect in their claim that the determination of this case must be made by a three-judge court. A three-judge court is not required where, as here, the plaintiff requests solely declaratory, and not injunctive, relief. Steffel v. Thompson, 415 U.S. 452, 457 n. 7, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
Davis contends that the regulations, which permit the carrier to appoint one of its own employees as a hearing officer, violate the underlying statute and the requirements of the due process clause.
As noted earlier, the statute provides that the carrier:
"(c) will establish and maintain procedures pursuant to which an individual enrolled under this part will be granted an opportunity for a fair hearing by the carrier . . ." 42 U.S.C. § 1395u(b)(3)(C).
In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the Supreme Court held that an impartial decision maker was an essential ingredient of a constitutionally fair hearing. In discussing the criteria to be used to determine the requisite impartiality, the Court stated:
397 U.S. at 271, 90 S.Ct. at 1022.
Section 6485.3 of the Part B Intermediary Manual, an HEW document which sets forth guidelines for carriers administering the Medicare Program and with which the carriers are obligated by contract to comply, provides:
...
To continue reading
Request your trial
-
Caswell v. Califano, Civ. No. 76-25-ND.
...op. at 1-2; Barnett v. Weinberger, supra, slip op. (May 5, 1975) at 2-4, slip op. (January 13, 1976); Davis v. Department of Health, Education & Welfare, 416 F.Supp. 448 (S.D.N.Y. 1976); Jackson v. Weinberger, 407 F.Supp. 792 (W.D.N.Y. 1976); Lyons v. Weinberger, 376 F.Supp. 248 (S.D.N.Y. 1......
-
GRAMERCY SPIRE TENANTS'ASS'N v. Harris
...958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976); Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971); Davis v. U. S. Dept. of HUD, 416 F.Supp. 448, 451 (S.D.N.Y.1976), and 28 U.S.C. § 1337, see Davis v. Romney, 490 F.2d 1360, 1365-66 (3d Cir. 1974); Ellis v. U. S. Dept. of Hsg. & U......
-
Ostrer v. Aronwald
...under this section arises only if the defendant has "a clear duty to perform a non-discretionary act." Davis v. United States Dep't of HEW, 416 F.Supp. 448, 451 (S.D.N.Y.1976). Conversely, mandamus is appropriate if the activity sought to be prevented is "so plainly prohibited as to be free......
-
Northeast Emergency Medical Associates v. Califano
...§ 405.835, unless reopened by him or by Pennsylvania Blue Shield in accordance with § 405.841. See generally Davis v. United States Dep't of HEW, 416 F.Supp. 448 (S.D.N.Y.1976) (rejecting due process challenge to the hearing procedures). Plaintiffs apparently have not sought such a hearing,......