Dr. Joseph G. Bussey, Jr., M. D. and Amy Jackson, P. A.,plaintiffs-appellants, v. Patricia Roberts Harris, Secretary of Health and Humanresources, Defendant-appellee, 611 F.2d 1001 (5th Cir. 1980)

Appellants contend that the fifth amendment of the federal Constitution requires Medicare reimbursement, 42 U.S.C. § 1395 Et seq., for paramedical services performed by physicians' assistants. The proper administrative forum rejected appellants' contention on its merits, and the district court dismissed the ensuing action for lack of subject matter jurisdiction. We affirm.

Appellant Amy Jackson, a physician's assistant licensed by the State of Georgia, assists appellant Joseph G. Bussey, Jr., M.D., in surgical operations and in preoperative and postoperative care. Jackson performed several services under Dr. Bussey's supervision in connection with an operation on Ruby A. Mitchell. These included arrangement of preoperative tests, description to the patient of the surgical procedure, supervision of skin disinfection and similar surgical preparation, instruction in postoperative rehabilitation, and postoperative visits to the patient's hospital room for necessary tests. These tasks would have been performed by another physician had they not been done by a physician's assistant. Dr. Bussey sought reimbursement for Jackson's services as his "Surgeon's Assistant" in the amount of $115.00. He made this claim as assignee of Mitchell's Medicare claim, 42 U.S.C. § 1395u(b) (3) (B) (ii), and submitted it to the intermediate carrier for the Department of Health, Education and Welfare (as it was then entitled), Prudential Insurance Co. of America, See id. § 1395u; 42 C.F.R. § 405.801(a) (1978).

The carrier, then a hearing officer denied reimbursement for the physician's assistant expense on the ground that it was not covered under the Act or under the pertinent regulations and the Part B Intermediary Manual. That Manual, prepared by the Department of HEW for the use of intermediate carriers, interprets the Medicare Act,¹  which limits funding to physicians' services and other "services . . . of kinds which are commonly furnished in physicians' offices," 42 U.S.C. § 1395x(s) (2) (A), to deny funding for "services which traditionally have been reserved to physicians" and are instead "perform(ed) by a physician's assistant." Department of HEW, Part B Intermediary Manual § 2050.3 (formerly § 6103(B)).²  The Manual, on the other hand, provides reimbursement for "the services of a nonphysician anesthetist." Id. § 2050.2 (formerly § 6103(A)).³ 

Appellants' complaint in federal district court alleged that the denial of coverage for physicians' assistants (1) constitutes a classification that contravenes the due process provision of the fifth amendment, in view of reimbursement for anesthetists, and (2) contradicts the language of the Medicare Act in violation of the due process clause of the fifth amendment. The district court dismissed the action for failure to state a claim because it found that the Act does not provide judicial review of administrative determinations regarding amounts allowed to claimants and that other jurisdictional statutes do not otherwise authorize review.

The dispositive question is whether this court has jurisdiction of these claims. The Medicare Act incorporates § 205(h) of the Social Security Act, 42 U.S.C. § 405(h). Id. § 1395ii. Section 205(h) restricts judicial review of agency determinations.

No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought Under section 24 of the Judicial Code of the United States to recover on any claim arising under this title.

42 U.S.C.S. § 405(h); See 53 Stat. 1371 (1939) (emphasis added).⁴  The latter sentence "precludes resort to federal-question jurisdiction for the adjudication of appellees' constitutional contentions" under the Social Security Act, Weinberger v. Salfi, 422 U.S. 749, 761, 95 S. Ct. 2457, 2465, 45 L. Ed. 2d 522 (1975), and similarly "precludes all review of the Secretary's decisions by federal district courts brought under § 1331" for the Medicare Act, Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d 328, 331 (5th Cir.) (en banc), Cert. denied, 439 U.S. 893, 99 S. Ct. 250, 58 L. Ed. 2d 238 (1978).

Although the Social Security Act provides other statutory procedures for judicial review, 42 U.S.C. § 405(g), the Medicare Act does not incorporate those procedures, Pushkin v. Califano, 600 F.2d 486, 488 & n.3 (5th Cir. 1979); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d at 330-32.⁵  This does not create any due process problem when judicial review of a constitutional question is available in a damages action in the Court of Claims under 28 U.S.C. § 1491. Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d at 332; See Whitecliff, Inc. v. United States, 210 Ct. Cl. 53, 536 F.2d 347, 351 (1976), Cert. denied, 430 U.S. 969, 97 S. Ct. 1652, 52 L. Ed. 2d 361 (1977).⁶  Because review of any substantial constitutional question in the instant case in fact is available in the Court of Claims, we do not decide whether Congress has, or could constitutionally have, precluded judicial review of a substantial constitutional claim, an issue that the Supreme Court has not resolved.⁷  Pushkin v. Califano, 600 F.2d at 492; Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d at 331 n.5, 332.⁸  We instead assess whether appellees have raised substantial constitutional issues to determine whether to transfer this action to the Court of Claims or to dismiss it for lack of subject matter jurisdiction.A.

The first issue is whether the disparate treatment of physicians' assistants and anesthetists contravenes the fifth amendment. The test for a statutory classification in the social welfare area challenged under the due process clause of that amendment is the same as the standard under the equal protection clause of the fourteenth amendment. Weinberger v. Salfi, 422 U.S. at 770, 95 S. Ct. 2457; Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971). This classification does not implicate a constitutionally-suspect class or a fundamental constitutional right; therefore, "the classification is constitutional if it is rationally related to furthering a legitimate state interest" under the Medicare Act.⁹  Pushkin v. Califano, 600 F.2d at 491. Accord, Weinberger v. Salfi, 422 U.S. at 769, 95 S. Ct. 2457 (under Social Security Act). "Perfection in making the necessary classifications is neither possible nor necessary." Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S. Ct. 2562, 2567, 49 L. Ed. 2d 520 (1976). Accord, Pushkin v. Califano, 600 F.2d at 491. Underinclusion that is not irrational does not violate the fifth amendment because "(i)t is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S. Ct. 463, 466, 93 L. Ed. 533 (1949). See Vance v. Bradley, 440 U.S. 93, 108-09, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979); Weinberger v. Salfi, 422 U.S. at 781, 95 S. Ct. 2457. Congress is entirely justified, as long as its action is not irrational, in providing for reimbursement under Medicare for some but not all of the vast spectrum of medical needs, and it is not required by due process or equal protection, upon choosing to fund some medical services, to fund all analogous medical services. Pushkin v. Califano, 600 F.2d at 491; Rastetter v. Weinberger, 379 F. Supp. 170, 172 (D. Ariz. 1974) (three judge court), Aff'd sum., 419 U.S. 1098, 95 S. Ct. 767, 42 L. Ed. 2d 795 (1975).¹⁰  The district court in Rastetter sustained Medicare reimbursement of physicians but not of chiropractors and naturopaths as being rationally-based, and the Supreme Court summarily affirmed this decision.

The Medicare program, however, is not a comprehensive health insurance program and still contains significant gaps in its coverage . . . in areas of immunizations, drugs, therapeutics, optometrics, and dental care services. Because Medicare does not make all health services available to the elderly does not necessarily create a violation of equal protection . . . .

379 F. Supp. at 172.

Congress properly based its exclusion of chiropractors and naturopaths upon a rational legislative basis . . . .

Id. at 175. This circuit in Pushkin upheld Medicare reimbursement of physicians but not of optometrists even in medical areas in which their diagnostic services overlapped.

(I)t cannot be said that Congress acted irrationally in providing reimbursement distinctions between the diagnostic services provided by a medical doctor and those provided by an optometrist. The failure to provide equal benefits to every conceivable interest in enacting reform legislation does not violate the equal protection clause.

600 F.2d at 492. We conclude that appellants have not raised a colorable constitutional claim that the Medicare denial of reimbursement for physicians' assistants but not for anesthetists is an irrational classification. Because that "constitutional issue is clearly an insubstantial one," we dismiss the fifth amendment challenge to the Manual's classification for lack of jurisdiction. Pushkin v. Califano, 600 F.2d at 492. See, e. g., McLucas v. DeChamplain, 421 U.S. 21, 32, 95 S. Ct. 1365, 43 L. Ed. 2d 699 (1975); Hagans v. Lavine, 415 U.S. 528, 536-38, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974).

The second issue is whether the Manual's denial of Medicare reimbursement for physicians' assistants contradicts the statutory language. The Act appears to authorize reimbursement for physicians' assistant services as involved here, because they are "furnished as an incident to a physician's professional service," are "commonly . . . included in the physicians' bills," and are "kinds which are commonly furnished in physicians' offices" including a surgeon's operating room. See 42 U.S.C. § 1395x(s) (2) (A). The third of these requirements seems to require that the service is commonly furnished by Some qualified person incident to a physician's treatment, but not to require that the service is performed only by a physician if it is a traditional physician's function or performed only by a paramedical worker if it is not a traditional physician's function. Congress indeed may not have intended to deny reimbursement for the lower cost of a paramedical worker such as a physician's assistant acting as first surgical assistant while providing reimbursement for the much higher cost of an underutilized physician acting in that capacity in these days of soaring medical costs and widespread physician shortages. Because this court lacks jurisdiction, we do not resolve the issue whether the Manual, as an interpretive rather than a legislative regulation, is inconsistent with the Medicare Act. See Batterton v. Francis, 432 U.S. 416, 425 & n.9, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977); Morton v. Ruiz, 415 U.S. 199, 234-36, 94 S. Ct. 1055, 39 L. Ed. 2d 270 (1974). We dismiss the challenge to the Manual's interpretation of the Medicare Act for lack of subject matter jurisdiction. See Pushkin v. Califano, 600 F.2d at 492; American Association of Councils of Medical Staffs of Private Hospitals, Inc. v. Califano, 575 F.2d 1367, 1371-72 (5th Cir. 1978), Cert. denied, 439 U.S. 1114, 99 S. Ct. 1018, 59 L. Ed. 2d 72 (1979) (challenge to interpretive manual).

AFFIRMED.