KEVIN McNULTY, District Judge.
The complaints in these four consolidated actions all allege essentially the same thing. On November 28, 2018, the plaintiff, Mr. Glad, underwent surgery in the country of Morocco. He claimed reimbursement in the amount of $6390 from Medicare. Medicare denied his claim because, with irrelevant exceptions, it does not pay for medical expenses incurred abroad. Mr. Glad did not go through the full administrative review process and therefore failed to exhaust his administrative remedies before filing his lawsuit(s). This matter comes before the court on the motion of defendant Medicare/Novitas Solutions to dismiss this removed action. (DE 5; unless otherwise specified, citations to docket entries refer to 19cv13431). For the reasons stated herein, the motion is granted.
On May 6, 2019, Mr. Glad filed his original complaint against "Medicare/Novitas Solutions" in Superior Court, Hudson County. It seeks Medicare reimbursement for $6390 in medical expenses that he incurred in Morocco. Because defendant Novitas Solutions was a Medicare contractor, acting under the Secretary of HHS, defendant removed the case to federal court. See 28 U.S.C. § 1442(a)(1). It was assigned Docket no. 19cv13431. It is in this action that the defendants filed the motion to dismiss for lack of jurisdiction that is now before the Court. (DE 5)
On June 11, 2019, Mr. Glad filed a second action in Hudson County Superior Court. This second complaint names as defendants "Centers for Medicare & Medica[id] Service (CMS)" and "US Department of Health & Human Services." It contains essentially the same allegations as the first complaint, but seeks additional damages for credit card interest and pain and suffering, bringing the total to $8290. This action, too, was removed to federal court, where it was assigned Docket no. 19cv13947. The only entry on that docket is the Notice of Removal, with the state court complaint and exhibits attached. (19cv13947 DE 1)
On June 14, 2019, Mr. Glad filed a third action, this time in the U.S. District Court for the District of New Jersey. (Docket no. 19cv13902) Like the first complaint, this one names as defendant "Novitas Solutions/Medicare." The allegations—that Mr. Glad had emergency surgery in Morocco, for which Medicare refused to pay—remain essentially the same. This third complaint, like the second, seeks $8290 in damages. A return of service was filed on August 29, 2019 (19cv13902 DE 6), but there has been no further activity in the case.
On July 19, 2019, Mr. Glad filed a fourth action, also in the U.S. District Court for the District of New Jersey. (Docket no. 19cv15647) This complaint names as defendant C2C Innovative Solutions, Inc. Again, the complaint alleges that Mr. Glad had emergency surgery in Morocco, for which reimbursement has been denied "after 3 diff. appeals." It seeks damages in the amount of $8440.
The plaintiff did not respond to the motion to dismiss, leaving the Court in something of a quandary as to the exhaustion issue. By order filed January 8, 2020, I granted the unopposed motion of the United States to consolidate these four actions for all purposes. (DE 14) Because the motion to dismiss had been filed in only the first action, in an abundance of caution I entered an order to show cause in writing by January 18, 2020, as to whether administrative remedies had been exhausted in advance of the filing of the (now-consolidated) second, third, and fourth actions. (DE 15) The government responded by filing a letter and Declaration of David R. Weiner. (DE 17 & 17-1) As of this writing, the plaintiff has not responded to the order to show cause.
The defendant has moved to dismiss for lack of jurisdiction under Rule 12(b)(1), citing the plaintiff's failure to exhaust administrative remedies. Particularly in the absence of an adversarial presentation, I am more than reluctant to accept the defendant's position. Recently, for example, the Supreme Court has held, for purposes of the Social Security Act, that 42 U.S.C. § 405(g) contains "two separate elements: first, a `jurisdictional' requirement that claims be presented to the agency, and second, a `waivable ... requirement that the administrative remedies prescribed by the Secretary be exhausted.'". Smith v. Berryhill, 139 S.Ct. 1765, 1773, 204 L. Ed. 2d 62 (2019) (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893 (1976)). As will be made clear infra, there is no doubt that the plaintiff "presented" his claim to the agency; the only issue is the latter one, i.e., whether he exhausted administrative procedures.
In an abundance of caution, then, I will review the government's motion, which is based on exhaustion of administrative remedies, under a Rule 12(b)(6) standard. A complaint may be dismissed under Rule 12(b)(6) if its allegations, taken as true, fail to plausibly state a cause of action. See Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The Court in considering a Rule 12(b)(6) motion is confined to the allegations of the complaint, with narrow exceptions:
In re Asbestos Products Liability Litigation (No. VI), 822 F.3d 125, 134 n.7 (3d Cir. 2016). The complaints explicitly and impliedly refer to the plaintiff's presentation of his claim, his appeals, and the rejection of the claim. Most of the factual discussion herein is based on copies of administrative decisions that the plaintiff attached to his complaint(s). The government, in response to an order to show cause inviting both sides' input, provided an update as to the status of the administrative proceedings. (DE 17) Even under a Rule 12(b)(6) standard, these matters are properly considered, not for the truth of any matters asserted therein, but merely for the existence or not of prior proceedings. See pp. 6-7 & nn. 5-7, infra.
Exhaustion of administrative remedies is a prerequisite to the filing of a district court action seeking Medicare reimbursement. Defendants moved in the first action to dismiss the complaint because, at the time it was filed, Mr. Glad had not exhausted the administrative appeals process.
Title 42, United States Code, Section 405(g) is "the sole avenue for judicial review for all `claim[s] arising under' the Medicare Act." Heckler v. Ringer, 466 U.S. 602, 615 (1984) (quoting Weinberger v. Salfi, 422 U.S. 749, 760-761 (1975)). Section 405(g) requires that a plaintiff first obtain a "final decision of the [Secretary]" before seeking review in federal court. The Medicare Act specifically bars court review of claims that have not been presented to and administratively exhausted before the Secretary. See 42 U.S.C. § 1395ii (incorporating 42 U.S.C. § 405(g)).
Mr. Glad's claim is one relating to hospitalization under Medicare Part A. The U.S. Department of Health & Human Services ("HHS"), Centers for Medicare & Medicaid Services ("CMS") administers that program, using private contractors for certain functions, including determinations of whether claims are eligible for payment, and the payment of claims out of Medicare Trust Funds. See generally 42 U.S.C. § 1395kk-1; 42 CFR §§ 421.100, 421.400.
The administrative review process for Medicare claims incorporates, mutatis mutandis, that of the Social Security Act. See 42 U.S.C. §§ 405, 1395ii. That administrative review process is as follows:
Here is the history of Mr. Glad's administrative appeals in relation to the dates of filing of his lawsuits:
This is where matters stand administratively: The second-level appeal has been denied, and there is no indication of a third-level appeal (ALJ hearing); or fourth-level appeal (MAC review) having been filed, let alone decided. A fortiori, there is no indication that Mr. Glad has obtained a final decision of the Secretary, reviewable in Court. His failure to do so before filing suit necessarily implies that the Court cannot hear his claim at this time. That failure to exhaust applies in blanket fashion to these four consolidated actions, and requires that they be dismissed.
For the foregoing reasons, the defendants' motion dismiss the complaint for failure to exhaust administrative remedies is GRANTED, and the complaints in all four of these consolidated actions are DISMISSED. The clerk shall close the file.
The government's primary citation for the proposition that exhaustion of remedies is jurisdictional is Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1 (2000). Shalala, however, is consistent with Eldridge and Berryhill; indeed, Shalala refers to the "nonwaivable and nonexcusable requirement that an individual present a claim to the agency before raising it in court," and does not specifically refer to the exhaustion requirement in jurisdictional terms. Id. at 15 (emphasis added). I therefore set aside citations to older district court cases that treat the exhaustion issue as one of subject matter jurisdiction. See, e.g., Schwartz v. Medicare, 832 F.Supp. 782, 789 (D.N.J. 1993).