Giesse v. Secretary, Dept., Health & Human Servs.

• Decision Date: 23 April 2008
• Docket Number: No. 06-4497.,06-4497.
• Citation: 522 F.3d 697
• Parties: Raymond H. GIESSE, Plaintiff-Appellant, v. SECRETARY OF The DEPARTMENT OF HEALTH AND HUMAN SERVICES; Departmental Appeals Board, Medicare Appeals Council; Kaiser Permanente Health Plan of Ohio; Maximus Center for Health Dispute Resolution; Jeannie Christiansen, Kaiser Permanente Health Plan of Ohio, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

522 F.3d 697

Raymond H. GIESSE, Plaintiff-Appellant, v. SECRETARY OF The DEPARTMENT OF HEALTH AND HUMAN SERVICES; Departmental Appeals Board, Medicare Appeals Council; Kaiser Permanente Health Plan of Ohio; Maximus Center for Health Dispute Resolution; Jeannie Christiansen, Kaiser Permanente Health Plan of Ohio, Defendants-Appellees.

No. 06-4497.

United States Court of Appeals, Sixth Circuit.

Submitted: December 6, 2007.

Decided and Filed: April 23, 2008.

ON BRIEF:

Stephen D. Hartman, Craig R. Giesze, Kerger & Associates, Toledo, Ohio, for Appellant. Betty J. Konen, Assistant United States Attorney, Cleveland, Ohio, C. Douglas Ferguson, Special

Assistant United States Attorney, Chicago, IL, Anne Marie Sferra, Sarah E. Hurst, Bricker & Eckler, Columbus, Ohio, Barbara J. Leukart, Jones Day, Cleveland, Ohio, Jane F. Warner, Murray K. Lenson, Ulmer & Berne, Cleveland, Ohio, Dennis R. Fogarty, Davis & Young, Cleveland, Ohio, for Appellees.

Before: MERRITT, COLE, and GRIFFIN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court. MERRITT, J. (p. 708), delivered a separate concurring opinion. COLE, J. (pp. 709-10), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff-appellant Raymond Giesse appeals the district court's grant of two motions to dismiss for lack of subject matter jurisdiction after he filed a suit seeking damages subsequent to an alleged wrongful termination of medical care. Plaintiff argues that the district court had jurisdiction over his claims because he has a vested "property interest" in the receipt of Medicare benefits, and that the termination of these benefits, without adequate due process, amounted to a deprivation of his constitutional rights. Because he alleges constitutional claims, and because these claims are "wholly collateral" to his administrative claims, plaintiff contends that his federal claims do not "arise under" the Medicare Act, and may therefore be addressed by the district court. In the alternative, plaintiff argues that an implied right of action exists in the Medicare context under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We disagree and affirm the judgment of the district court.

I.

Plaintiff is an Ohio resident and an enrollee in a Kaiser Medicare + Choice ("M + C") Plan. This plan allows private insurance companies to contract with the federal government to provide Medicare benefits to enrollees.

Giesse suffered a stroke on June 20, 2003, and was initially treated at Metro-Health Medical Center, a Kaiser affiliate. His treating physician, Tandra Usharani, M.D., recommended that Giesse undergo occupational therapy, speech therapy, and physical therapy on a daily basis to rehabilitate the physical and mental skills lost due to the stroke.

On July 16, 2003, Giesse was transferred to Aristocrat Berea ("Aristocrat"), a skilled nursing facility ("SNF"). At this time, Giesse still required daily physical and occupational therapy. Eight days later, on July 24, 2003, Aristocrat's Director Jeannie Christiansen orally notified Giesse's son, an attorney residing in Chile, that Giesse's daily SNF benefits would be terminated on July 29 or 31, 2003. Christensen also informed Giesse's son that Giesse would receive a three-day written notice to leave the facility. Her stated rationale for termination of SNF benefits was that Giesse had reached a "plateau."

On July 28, 2003, Christiansen orally notified Giesse that he would be transferred to another facility. Christiansen provided Giesse with a written notice of non-coverage that stated that Medicare would not cover Giesse's daily SNF benefits as of August 1, 2003, because he no longer required daily physical and occupational therapy. This notice also described Giesse's right to appeal the decision to terminate benefits, the appeal process, and an available 72-hour expedited appeal process. Giesse refused to sign this notice of non-coverage until his son, who exercised power of attorney, could review the document. Giesse's son received the above notice on July 31, 2003.

On August 1, 2003, Dr. Ammaji Narra, plaintiff's consulting Kaiser physician, tendered the necessary paperwork indicating that Giesse was eligible under Medicare Part B for homebound care with intermittent care on an outpatient basis. That same day, Giesse moved to Brookside Estates, an assisted living center, on his own accord, financing the move by selling his house far below market value. At Brookside Estates, he received physical, occupational, and speech therapy on an intermittent basis.

On September 29, 2003, Giesse filed a request for reconsideration of the termination of his daily SNF benefits. In this request for reconsideration, Giesse requested that the decision be rescinded as a "purely procedural matter" and asked for monetary compensation for damages resulting from out-of-pocket disbursements to Brookside Estates, attorney's fees, the distress sale of his personal residence, and unspecified special damages. Giesse did not request to be readmitted to the SNF, or otherwise seek daily nursing care. On October 16, 2003, Kaiser denied his request for reconsideration and notified Giesse's legal representation of the same. Kaiser further stated that it had submitted the case to the Maximus Center for Health Dispute Resolution ("Maximus") for an independent, external review. Maximus, on November 17, 2003, dismissed Giesse's case, reading his request as a "grievance" rather than a "valid appeal for medical coverage." Maximus further stated that "Medicare does not permit us to make a decision about these types of complaints."

Giesse, on January 16, 2004, filed a request for an administrative hearing before an Administrative Law Judge ("ALJ"). The ALJ dismissed the case on March 22, 2004, finding that under federal regulations it had no jurisdiction to review the matter because no reconsidered decision had been made. On May 26, 2004, Giesse appealed to the Medicare Appeals Council ("MAC"). The MAC denied his request for review on October 25, 2004, again finding that Giesse was not entitled to an ALJ hearing without having received an administrative determination.

Giesse filed the instant lawsuit on December 27, 2004, in the United States District Court for the Northern District of Ohio. On January 14, 2005, Giesse filed an Amended Complaint, raising procedural and substantive due process claims, as well as federal constitutional tort, breach of contract, fraud, medical malpractice, respondeat superior, intentional or reckless infliction of emotional distress, and additional punitive and exemplary damages claims. Giesse sought review of the ALJ's decision, monetary damages in the amount of $42,630, compensatory damages in the amount of $1,000,000, consequential damages in the amount of $883,237.76, punitive damages in the amount of $3,000,000, as well as costs and attorney's fees. In the alternative, Giesse sought reversal of the administrative decisions and a remand for an administrative hearing with an ALJ. Both the Secretary of Health and Human Services ("the Secretary") and Kaiser filed motions to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. On August 1, 2005, Giesse sought leave to file a second amended complaint, seeking to raise a claim under the Federal Tort Claims Act ("FTCA").

The district court, on September 27, 2006, dismissed Giesse's amended complaint without prejudice for lack of subject matter jurisdiction and denied Giesse's motion to file a second amended complaint. This appeal followed.

II.

This court reviews de novo the dismissal of a complaint under FED.R.CIV.P. 12(b)(1) for lack of jurisdiction. Colonial Pipeline Co. v. Morgan, 474 F.3d 211, 217 (6th Cir.2007). When, however, the district court goes beyond analyzing the complaint on its face and instead delves into the factual predicates for jurisdiction, the court reviews for clear error. Howard v. Whitbeck, 382 F.3d 633, 636 (6th Cir.2004). Additionally, when subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.1996).

The Secretary has created an administrative review process that allows Medicare enrollees, such as Giesse, to challenge adverse decisions by their M + C providers. 42 U.S.C. § 1395w-22(g); 42 C.F.R. § 422.560. Aside from this administrative review process, the Medicare Act bars judicial review of claims that "arise under" the Act. The language of section 405(h), as incorporated by 42 U.S.C. § 1395ii, reads:

The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner of Social Security, or any other officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this title.

42 U.S.C. § 405(h).

Section 405(h) "channels most, if not all, Medicare claims through this special review system." Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 8, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000). Moreover, § 405(h) definitively bars judicial review of legal challenges to the denial of Medicare benefits. As the Supreme Court has noted:

[The language of § 405] clearly appl[ies] in a typical Social Security or Medicare benefits case, where an individual seeks a monetary benefit from the agency (say, a disability payment, or payment for some medical procedure), the agency denies the benefit, and the individual challenges the lawfulness of that denial. The...