Unpublished Dispositionnursing Home Group, Ltd., Plaintiff-appellant, v. Blue Cross and Blue Shield of Michigan, a Non-profitcorporation; Vicki A. Choate, Coordinator, Medicareadministrator Government Programs; Otis R. Bowen, Secretaryof the Department of Health & Human Services, Defendants- Appellees, 857 F.2d 1475 (6th Cir. 1988)

Nursing Home Group, Ltd. (NHG), appeals from a judgment of the United States District Court for the Eastern District of Michigan dismissing its complaint.

Appellant is a supplier of portable X-ray and electrocardiogram (EKG) services to nursing home and home-bound patients. This dispute is over Medicare reimbursements for transportation costs related to giving EKG's. Appellee Blue Cross and Blue Shield of Michigan (Blue Cross or carrier) is the Medicare Part B carrier in Michigan. In the fall of 1983, Blue Cross determined that the transportation expenses connected with the provision of EKG services were not reimbursable. Prior to that time NHG billed and received payment incurred in the transportation of portable EKG machines but had billed for the charges under the same service code used for transportation of larger, more bulky x-ray machines. In 1984 Blue Cross demanded repayment of funds paid to the appellant for transportation charges for which appellant had been erroneously reimbursed. NHG demanded a hearing before a hearing officer chosen by the carrier in accordance with 42 U.S.C. § 1395u(b) (3). The hearing officer issued a written opinion on November 21, 1985.

The hearing officer's opinion directed the carrier to forward the file to the Chicago Regional Office for consideration of whether NHG had been without fault and requested that the carrier "revisit" its policy regarding transportation charges for EKG's.

Upon reconsideration, the carrier again held that EKG transportation charges were not reimbursable in the locality.¹  The carrier also reviewed and upheld its conclusion that NHG had not been without fault in having been erroneously reimbursed for EKG transportation charges, and was therefore required to repay the overpayments.² 

On September 24, 1986, NHG filed a three-count complaint against the Secretary of Health and Human Services, Otis R. Bowen; the carrier, Blue Cross; and the Coordinator, Medicare Administrator Government Programs, Vicki A. Choate. Count I sought a writ of mandamous compelling the defendants to comply with the hearing officer's decision. Count II alleged that NHG would be deprived of due process if the hearing officer's decision was not enforced. Count III alleged that Blue Cross violated Medicare law and regulations in determining that EKG transportation charges were not reimbursable.

The district court dismissed the complaint on two grounds; (1) that the complaint was really an attempt to obtain judicial review of an administrative determination of the amount of Part B Medicare benefits, over which the federal courts do not have jurisdiction; and (2) that everything the hearing officer ordered had been done and that there was nothing left in the hearing officer's decision for the district court to order implemented.

On appeal NHG first argues that the complaint was not an attempt to obtain review of the amount reimbursed under Part B, but was an attempt to assert appellant's procedural rights. Second, appellant argues that under the precedent of Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), the district court had general federal question jurisdiction.

Upon careful review of the complaint in this case, we agree with the district court's conclusion that the complaint was really an attempt to obtain judicial review of a Part B amount determination over which we do not have jurisdiction. United States v. Erika, Inc., 456 U.S. 201 (1982).³ 

Although Count II of the plaintiff's complaint did claim a violation of due process, the foundation for the claim was that the plaintiff would be deprived of due process if the hearing officer's decision was not enforced. Plaintiff's claim is not a challenge to the validity of one of the Secretary's regulations. It is not a challenge to the specific method by which such awards are calculated. Therefore, we do not have jurisdiction under the Supreme Court precedent of Bowen v. Michigan Academy of Family Physicians, supra.

The plaintiff in this case was not foreclosed from bringing a procedural due process challenge to the method by which such awards are determined. The district court specifically stated that it would entertain a new suit making a constitutional challenge to the Medicare Part B regulation if the plaintiff could do so consistent with Erika, supra, and Michigan Academy of Family Physicians, supra. The district court emphasized that plaintiff's complaint as stated must be dismissed. It was only in supplemental briefings on the motion to dismiss that NHG raised an entirely new issue challenging the method of calculation. This was not raised by the complaint or by the previous pleadings in the case. The court correctly held that it could not reach the merits of such a due process claim, the claim not having been alleged in the complaint but only suggested in later briefing.

We also agree with the district court's second reason for dismissing appellant's complaint. Everything ordered by the hearing officer had been done. Blue Cross had revisited its policy and determined that EKG transportation expenses were not reimbursable. Blue Cross also reconsidered and reaffirmed its decision that NHG had not been without fault. As Judge Gilmore observed, "The carrier's decisions were reviewed and reaffirmed. The court could not grant Nursing Home Group's prayer for relief since there is nothing in the hearing officer's decision left for the court to order implemented."

Accordingly, for the reasons previously stated, the judgment of the district court is AFFIRMED.