NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0493n.06
Case No. 17-2165
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 03, 2018 NEW VISION HOME HEALTH CARE, ) DEBORAH S. HUNT, Clerk INC.; SALEEM BIN SHAKOOR, ) ) Plaintiffs-Appellants, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) MICHIGAN ANTHEM, INC.; TRUSTSOLUTIONS, LLC; ) NATIONAL GOVERNMENT SERVICES, ) INC., ) ) Defendants-Appellees. )
BEFORE: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. In this Medicare reimbursement dispute, appellants
New Vision Home Health Care, Inc. and Saleem Bin Shakoor (collectively, “New Vision”) appeal
the district court’s dismissal of their claims against appellees Anthem, Inc. (“Anthem”),
TrustSolutions LLC (“TrustSolutions”), and National Government Services, Inc. (“NGS”)
(collectively, “Contractors”) for lack of subject matter jurisdiction.
On Counts I and II of the complaint, which sought a writ of mandamus ordering an
Administrative Law Judge (“ALJ”) to enforce its 2013 order, the district court held that it did not
have jurisdiction because New Vision had failed to satisfy administrative exhaustion and
presentment requirements. See New Vision Home Health Care, Inc., et al. v. Anthem, Inc., et al.,
1 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
No. 16-13173, 2017 WL 3704379, at *1, *6 (E.D. Mich. Aug. 28, 2017). In addition, the court
found that the ALJ’s order did not subject appellees to an enforceable, “clear nondiscretionary
duty,” required for mandamus. Id. at *6.
On Counts III–VIII, the court found that New Vision had failed to exhaust its
administrative remedies and was therefore barred from suing on claims “arising under” the
Medicare statute. Id. at *6–7.
For the reasons that follow, we AFFIRM the district court’s decision on all Counts.
I. FACTS
Appellant New Vision is a home healthcare provider that is reimbursed by Medicare for
qualifying services provided to patients. Appellee TrustSolutions is a Medicare “Program
Safeguard Contractor” (PSC). Appellee NGS is a Medicare “Administrative Contractor”
responsible for making initial determinations on providers’ claims for reimbursement. Appellee
Anthem is a for-profit healthcare insurer with an interest in the resolution of this case because of
its transactions with TrustSolutions.
This dispute began in 2007, when TrustSolutions conducted an audit of Medicare payments
made to New Vision between 2003 and 2006 and determined that some of the services previously
reimbursed had not, in fact, qualified for Medicare coverage. Based on this determination,
TrustSolutions took a sample of the claims and entered the data in a formula to extrapolate an
estimated total amount that New Vision had been overpaid. The extrapolated amount was over
$4 million.
New Vision appealed that determination through the Medicare appeals process
and obtained a favorable decision from an ALJ in 2011.1 See New Vision Home Health Care,
1 This was not the first ALJ hearing in this dispute, but the first one and its procedural history are not relevant to this appeal.
2 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
Inc., 1-737870647 (ALJ Appeal No.), Docket Number: M-12-388, 2012 WL 891098, at *1 (H.H.S.
Feb. 8, 2012). The ALJ found that the formula used by TrustSolutions to extrapolate the
overpayment was faulty and therefore the amount calculated was not valid. Id. at *4.
Contractors appealed the ALJ’s decision to the Medicare Appeals Council, which
remanded for another ALJ hearing. That hearing resulted in the 2013 decision at issue in this case.
The ALJ agreed with Contractors that some of the disputed claims previously submitted by New
Vision between 2003 and 2006 had not been eligible for reimbursement (as TrustSolutions had
already determined); however, many more of those claims had been eligible. The “actual
overpayment amount” determined by the ALJ was $35,872.28, far less than the $4 million-plus
extrapolated by TrustSolutions. The ALJ ordered Contractors “to process the claims and claim
lines at issue in accordance with this decision” and ordered that “[a]ny amounts recouped or
otherwise recovered from the Provider based upon the invalid overpayment demands herein shall
be returned to [New Vision].”
After the ALJ issued the 2013 decision, Contractors made an interest calculation and added
it to the “actual overpayment amount;” they then deducted amounts already repaid by New Vision
and determined that New Vision owed Contractors $41,675.65. Contractors sent New Vision a
request for reimbursement of this amount, but New Vision never paid. In addition, according to
New Vision’s allegations, beginning after 20062 Contractors withheld from New Vision all
payments on reimbursements for approved claims. New Vision asserted that Contractors had a
policy of withholding future payments to recoup past overpayments and that because Contractors
“never provided any notice to [New Vision] that they were subject to any other audits, the
2 In its brief, New Vision states that the withholdings began after 2006, but its Second Amended Complaint stated that they began in 2010. The district court used the 2006 date because New Vision also used that date in some of its other filings. We will use the 2006 date as well, but the exact date is not relevant to the jurisdictional questions raised by this appeal.
3 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
withholding . . . has no reasonable explanation other than as an attempt” to recoup. However,
according to New Vision, Contractors have withheld over $200,000 in payments since 2006—
approximately five times the $41,675.65 that New Vision was due to reimburse Contractors under
the ALJ’s 2013 decision.
II. PROCEDURAL BACKGROUND
In 2016, New Vision brought this action in the district court seeking a writ of mandamus
for enforcement of the 2013 ALJ decision (Counts I and II) and asserting the following claims for
monetary relief: Count III (negligence under Michigan law), Count IV (gross negligence under
Michigan law), Count V (tortious interference with business relationships under Michigan law),
and Count VI (violation of procedural due process rights under the federal Constitution and the
Michigan constitution).
In addition, New Vision sought a declaratory judgment under 28 U.S.C. § 2201 (Count
VII) and an injunction under Federal Rule of Civil Procedure 65, ordering Contractors to comply
with the ALJ’s 2013 order, among other requirements (Count VIII).
In support of its request for mandamus, New Vision alleged that (1) Contractors’
withholding of over $200,000 in payments since 2006 violated the portion of the ALJ’s 2013
decision that required Contractors to “release . . . all improperly retained funds owed to” New
Vision and that (2) Contractors improperly retained the post-2006 payments in an attempt to
recoup overpayment amounts based on TrustSolutions’s initial determination of over $4 million,
which had been invalidated by the ALJ. New Vision argued that the ALJ’s order created a “clear
legal duty” for Contractors to make the payments withheld on post-2006 claims. The existence of
this clear duty, New Vision claimed, gave the district court jurisdiction to issue a writ of
mandamus.
4 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
Contractors filed a motion to dismiss, which the district court initially denied. Contractors
then filed a motion to reconsider, which the district court granted. On reconsideration, the district
court agreed with Contractors that it did not have subject matter jurisdiction over New Vision’s
claims, and it granted Contractors’ motion. The district court found it lacked jurisdiction over
Counts I and II (seeking mandamus relief) because, first, New Vision had not satisfied the
exhaustion and presentment requirements of the administrative appeals process with regard to its
post-2006 claims, and, second, the ALJ’s 2013 order did not create a “clear nondiscretionary duty”
in Contractors. See New Vision, 2017 WL 3704379, at *6. Finally, the district court also found it
lacked jurisdiction over Counts III–VIII of the complaint because New Vision had not exhausted
its administrative remedies on those claims. See id. at *6–7.
New Vision appealed.
III. STANDARD OF REVIEW
We review a district court’s dismissal for lack of subject matter jurisdiction de novo.
Cathedral Rock of N. Coll. Hill, Inc. v. Shalala, 223 F.3d 354, 358 (6th Cir. 2000). We may affirm
the district court’s dismissal on any ground and are “not restricted to ruling on the district court’s
reasoning . . . .” In re Comshare Inc. Sec. Litig., 183 F.3d 542, 548 (6th Cir. 1999); see also Bright
v. Gallia Cty., Ohio, 753 F.3d 639, 652 (6th Cir. 2014).
IV. STATUTORY BACKGROUND
The Medicare statute describes a four-step process by which Medicare service providers
may appeal administrative determinations. 42 U.S.C. § 1395ff. First, if the provider is not satisfied
with the initial determination of the Medicare Administrative Contractor, it may ask the contractor
to conduct a “redetermination.” Id. § 1395ff(a)(3). The second step is to seek “reconsideration”
with a Qualified Independent Contractor (“QIC”). Id. § 1395ff(b)–(c). Third, the provider may
5 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
appeal to an ALJ. Id. § 1395ff(d)(1). The ALJ may make a decision or remand to the QIC. Id.
§ 1395ff(b). “The decision of the ALJ or attorney adjudicator on a request for hearing is binding
on all parties unless” one of five exceptions applies, including an exception for claims appealed to
the Medicare Appeals Council (“Council”). 42 C.F.R. § 405.1048. Fourth, and finally, the
provider may appeal to the Council, which may enter a final decision or remand to the ALJ. 42
U.S.C. § 1395ff(d)(2); 42 C.F.R. § 405.1100(c). “The Council’s decision is final and binding on
all parties unless a Federal district court issues a decision modifying the Council’s decision or” if
another exception, not at issue here, applies. 42 C.F.R. § 405.1130.
After going through this process, a provider may still seek relief in a United States district
court if it satisfies certain strict requirements. The parties dispute whether New Vision has satisfied
the jurisdictional requirements of 42 U.S.C. § 405(g), which provides:
Any individual, after any final decision3 of the [Secretary of Health and Human Services]4 made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Secretary] . . . .
In addition, access to judicial review on claims “arising under” the statute is available only
to those who follow the prescribed process:
The findings and decision of the [Secretary] after a hearing shall be binding upon all individuals who were parties to such hearing. 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
3 This court has made clear that, for purposes of the four-step Medicare appeals process and the judicial review provisions in 42 U.S.C. § 405(g) and (h), the decision of the Council “is considered the final decision of the Secretary.” S. Rehab. Grp., P.L.L.C. v. Sec’y of Health & Human Servs., 732 F.3d 670, 673 (6th Cir. 2013). 4 § 405 is part of the Social Security Act but has been incorporated into the Medicare statute; thus, all references to the “Commissioner” in the original are replaced here with references to the Secretary of Health and Human Services. See 42 U.S.C. § 1395ff(b)(1)(A).
6 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h) (incorporated into the Medicare statute at 42 U.S.C. § 1395ii).
V. DISCUSSION
As a preliminary matter, we note that if a motion to dismiss for lack of subject matter
jurisdiction “attack[s] the claim of jurisdiction on its face . . . all allegations of the plaintiff must
be considered as true . . . .” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). Here, New
Vision argues that the district court applied the wrong legal standard in granting Contractors’
motion because it considered affidavits and other evidence outside the pleadings. However,
although the district court did cite authority indicating it believed it could consider evidence
outside the pleadings, its resolution of the motion to dismiss turned only on whether New Vision
had exhausted the Medicare appeals process—a determination for which the underlying facts were
not disputed. New Vision and Contractors agree on how many steps New Vision completed in the
Medicare appeals process; the question is whether those steps amounted to exhaustion as a matter
of law. The district court’s ruling that it lacked subject matter jurisdiction, therefore, did not go
beyond the pleadings.
We now turn to the jurisdictional question. To satisfy the Supreme Court’s test for
mandamus jurisdiction under 28 U.S.C. § 1361, New Vision must show both that it has “exhausted
all other avenues of relief” and that Contractors “owe[] [New Vision] a clear nondiscretionary
duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984); accord BP Care, Inc. v. Thompson, 398 F.3d
503, 514–15 (6th Cir. 2005).
The district court correctly determined that New Vision has not exhausted all other avenues
of relief. Instructive in this regard is BP Care, in which we rejected a Medicare claimant’s request
for a mandamus writ and determined that the exhaustion analysis for mandamus jurisdiction in
7 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
administrative cases duplicates the exhaustion analysis for determining whether a district court has
federal-question jurisdiction:
Both the Supreme Court and this circuit have avoided deciding whether § 405(h) bars mandamus jurisdiction under 28 U.S.C. § 1361, in the same way that it bars jurisdiction under §§ 1331 and 1346. The Supreme Court has, however, muted the importance of the question by holding in Ringer that a litigant who has a remedy available under § 405 has not met the exhaustion of remedies requirement for mandamus. Thus, the Ringer decision has an effect similar to that of placing mandamus within § 405(h)’s jurisdictional bar. The conclusion that the district court lacked jurisdiction over BP Care’s claims under § 1331, because of BP Care’s failure to present its claims to the agency and to exhaust administrative remedies, therefore applies equally to bar mandamus jurisdiction.
398 F.3d at 515 (citations omitted). Following BP Care, we apply the exhaustion analysis for
federal-question claims and conclude that because New Vision has not exhausted its administrative
remedies, it has not satisfied the exhaustion requirement for mandamus jurisdiction.
We begin our exhaustion analysis with Southern Rehabilitation Group, P.L.L.C. v.
Secretary of Health and Human Services, 732 F.3d 670, 678 (6th Cir. 2013). In that case, we held
that plaintiffs who “seek[] judicial review of the Secretary’s final decision” must satisfy three
requirements under 42 U.S.C. § 405(g) and (h): they must “present[] their claims to the Secretary;”
they must “exhaust their administrative remedies resulting in a final decision;” and they may not
“rais[e] federal question claims that are inextricably intertwined with their claim for benefits.” S.
Rehab., 732 F.3d at 678 (internal quotation marks omitted).5
As this formulation makes clear, the Medicare statute’s exhaustion requirement calls for a
“final decision” from the Secretary. 42 U.S.C. § 405(g). The district court acknowledged this
requirement and found that New Vision had not met it. This determination was correct. Although
New Vision describes the 2013 ALJ order as “final and binding” under 42 C.F.R. § 405.1048, this
5 Although Southern Rehabilitation addressed a matter of benefit determinations, Medicare providers are subject to the same jurisdictional requirements. See, e.g., Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757 (5th Cir. 2011); Bodimetric Health Servs., Inc. v. Aetna Life & Cas., 903 F.2d 480 (7th Cir. 1990).
8 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
regulation simply states that “[t]he decision of the ALJ . . . on a request for hearing is binding on
all parties,” with a number of exceptions that do not apply here. 42 C.F.R. § 405.1048(a). This
section does not address “finality” for purposes of judicial review of agency action. Instead, the
statute and regulations, as well as our case law, demonstrate that the Council’s decisions, not the
ALJ’s, are the final decisions of the Secretary and satisfy the jurisdictional prerequisite. See 42
C.F.R. § 405.1100(c) (“When the Council reviews an ALJ’s . . . decision,” it “issues a final
decision or dismissal order or remands a case to the ALJ . . . .”); id. § 405.1130 (describing the
Council’s decision as “final and binding”); S. Rehab., 732 F.3d at 673 (stating that when “the ALJ
denies the claim,” the Council’s “decision is considered the final decision of the Secretary”); cf.
42 C.F.R. § 405.904(a)(1) (beneficiaries seeking review of agency determinations may sue after
obtaining a decision from the Council). Thus, because it has not obtained a decision from the
Council regarding any adverse aspects of the ALJ’s 2013 decision, New Vision has obtained no
final agency decision and has not exhausted its remedies.
Assuming that New Vision had obtained a final decision affirming the ALJ’s 2013
decision, the district court still would have been correct in denying mandamus relief because the
terms of the ALJ’s 2013 decision do not place Contractors under a clear duty to pay New Vision
for post-2006 claims. If the terms of the ALJ’s 2013 decision are clear at all, it is clear that they
reference only claims on which New Vision had been overpaid between 2003 and 2006. The order
says to “process the claims and claim lines at issue,” and the claims at issue were those included
in TrustSolutions’ audit: claims for which New Vision had already been paid and about which the
dispute was simply how much New Vision had been overpaid. But New Vision wants relief
beyond the scope of the ALJ’s 2013 decision. What New Vision seeks is a remedy that not only
9 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
takes into account reimbursement of the pre-2006 overpayment but also compels payment for post-
2006 claims. This latter component is not contemplated by the ALJ’s 2013 decision.
Moreover, even if the ALJ’s 2013 decision was meant to address post-2006 claims, that
intention is not clear enough to support a writ of mandamus because it does not sufficiently define
an amount owed. In this regard, Maczko v. Joyce, 814 F.2d 308, 310 (6th Cir. 1987) is analogous.
There, we found the duty was not sufficiently well defined where the parties disagreed about the
amount of backpay owed to the claimant pursuant to an EEOC decision. The EEOC decision in
that case ordered that “the Complainant be reinstated with reasonable accommodation; be awarded
backpay, seniority and benefits that may have accrued since the effective date of the denial of the
Complainant’s request for light duty deducting any duplicative award the Complainant may have
received prior to the issuance of this decision.” Id. at 309. We found that this order’s terms were
not “readily ascertainable” and therefore did not support mandamus jurisdiction. Id. at 310. “We
conclude[d] that when a duty is disputed or subject to various interpretations, for instance when
unliquidated damages are involved, the duty is not ‘owed’ in that the obligation to do a particular
act cannot be said to be clear, peremptory, defined or ministerial within the meaning of section
1361.” Id. (citations omitted).
As in Maczko, so here, the agency order at issue does not contain instructions regarding an
amount owed. The ALJ’s 2013 decision does not quantify any sum for post-2006 claims. In short,
the duty New Vision seeks to have enforced is not “clear, peremptory, defined or ministerial” in
the ALJ’s 2013 decision. Id. Rather, that decision left it to Contractors to determine what
“amounts recouped” should be returned to New Vision and contains no directive with regard to
payment of post-2006 claims.6 Although Contractors may have behaved poorly in not making
6 Asserting that the district court “read a temporal requirement into the order which was simply not there,” New Vision argues that the ALJ’s instruction to Contractors to return “amounts recouped” refers to all amounts wrongly recouped
10 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
reimbursements after 2006, their actions are not in conflict with the ALJ’s 2013 decision. That
decision, therefore, is not a clear enough basis to support mandamus jurisdiction.
New Vision nevertheless argues that this case is comparable to Randall D. Wolcott, M.D.,
P.A. v. Sebelius, 635 F.3d 757, 770 (5th Cir. 2011), in which the Fifth Circuit found the district
court did have mandamus jurisdiction even though the administrative order did not specify an
amount to be paid. The facts here, however, do not align with Wolcott. There, the plaintiff
provider sought administrative review of denied claims for Medicare reimbursement. The ALJ
reversed the denial of claims and found that the plaintiff was “entitled” to payment on them. Id.
at 761. The Fifth Circuit found that the district court had mandamus jurisdiction because the
defendant had a “non-discretionary duty to pay a successfully appealed claim.” Id. at 770.
This case is different. New Vision has not sought any administrative review of any
withheld payments for post-2006 claims. There is no ALJ order finding New Vision entitled to
anything for those claims. Nor is there any determination that any amount has been withheld that
is owed for those claims. By contrast, in Wolcott, the Fifth Circuit found there was subject matter
jurisdiction because the plaintiff “ask[ed] the district court to compel the defendants to process
and pay claims in accordance with binding final administrative decisions ordering payment of
these claims.” Id. at 766. This language from Wolcott, rather than supporting New Vision’s
position, suggests that New Vision’s route to relief should be to challenge Contractors’
nonpayment through the administrative process and obtain an order requiring payment.
or withheld, past, present, and future. We, by contrast, agree with the district court that the wording suggests the ALJ’s 2013 decision contemplated only funds withheld prior to the date of the decision. That there is room for dispute about the future application of the order supports our conclusion that Contractors were not under a clear nondiscretionary duty. On that point, it is worth noting that we found no clearly defined duty in Maczko, despite the EEOC order’s placing temporal boundaries on the calculation. See 814 F.2d at 309 (discussing the EEOC order, which required that the plaintiff “be awarded backpay, seniority and benefits that may have accrued since the effective date of the denial of the Complainant’s request for light duty deducting any duplicative award the Complainant may have received prior to the issuance of this decision” (emphasis added)).
11 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
Because New Vision has not demonstrated that Contractors were under a clear
nondiscretionary duty to make payments on New Vision’s post-2006 reimbursement claims, the
district court correctly found that it lacked subject matter jurisdiction to grant mandamus relief on
those claims based on the ALJ’s 2013 decision. Therefore, the district court properly dismissed
Counts I and II of New Vision’s complaint.
We now turn to Counts III–VIII. The district court also dismissed each of these for lack
of subject matter jurisdiction, finding that New Vision was required to exhaust its administrative
remedies and had not done so. See New Vision, 2017 WL 3704379, at *6–7. In reaching this
conclusion, the court applied the same exhaustion analysis it applied to New Vision’s mandamus
claims. Thus, it held that New Vision was required to pursue its tort and constitutional claims
through the four-step Medicare appeals process. Under this court’s precedent, the district court
reached the correct result.
As discussed above, the exhaustion requirement comes from the jurisdictional limitations
in 42 U.S.C. § 405(g) and (h). S. Rehab., 732 F.3d at 678. Section 405(g) prescribes a process for
review of administrative decisions. Section 405(h) limits the power of federal courts to hear claims
related to those decisions: “No action against the United States, the [Secretary], or any officer or
employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim
arising under this subchapter.”
In Southern Rehabilitation, this court said that state-law claims are subject to the same
analysis as federal claims for purposes of § 405(h). 732 F.3d at 677 n.6. We also applied the same
analysis to all of the plaintiffs’ assertions of jurisdiction over their federal claims, including under
28 U.S.C. § 2201 (the declaratory judgment statute). See 732 F.3d at 674, 680. Under Southern
12 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
Rehabilitation, therefore, New Vision was required to exhaust its administrative remedies with
regard to all of its claims in Counts III–VIII arising under the Medicare statute.
New Vision objects that because Contractors are not “the United States, the [Secretary], or
any officer or employee thereof,” the jurisdictional limitation does not apply to this lawsuit. But
in Southern Rehabilitation, we read the Medicare Act as a whole and determined that Medicare
contractors, acting within the scope of their authority, were “agents” of the United States
government and therefore enjoyed § 405(h) immunity to the same extent as the United States. 732
F.3d at 680 n.7.
New Vision also contends that its claims do not “arise under” the Medicare statute. Thanks
to Southern Rehabilitation, this assertion fails too. In that case, we affirmed dismissal of the
plaintiffs’ state-law claims for breach of contract, fraud, and negligence (among others) as well as
its federal constitutional claims for failure to satisfy the presentment requirement of § 405(g) and
(h). 732 F.3d at 674, 680. In so doing, we found that the state-law and federal constitutional
claims were “inextricably intertwined with the claim for review of the Secretary’s decision” and
must, like claims for review, “be presented to the agency . . . .” Id. at 679.
Here, the district court dismissed New Vision’s claims for failure to exhaust, rather than
failure to present. Because (as discussed above) New Vision did not obtain a final decision from
the Council on any of its claims, the district court appears to have made the correct decision.
However, we need not determine whether New Vision exhausted its administrative remedies on
the state-law and federal constitutional claims because New Vision failed to present its claims to
the agency as required by Southern Rehabilitation. In that case, we found that because plaintiffs
“d[id] not allege they ever presented their federal or state law claims to the agency,” it did not
matter that they claimed to have “exhausted the administrative review channels[] and properly
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progressed through the administrative review process.” Id. at 679–80 (internal quotation marks
omitted).
New Vision does claim to have presented its theories of relief to the agency, but its
argument to that effect mirrors that of the Southern Rehabilitation plaintiffs in simply reiterating
that it exhausted its administrative remedies. This strategy, we have held, will not avail. See id.
The closest New Vision gets to a meritorious argument that it presented its claims is by
contending that it “raised the facts underlying the tort and due process causes of action to the ALJ.”
New Vision asserts that statements in the ALJ’s 2013 order show that the ALJ heard and
considered these facts. In particular, the ALJ chastised Contractors for failing to use due care and
for making serious errors, among other misdeeds, in calculating the amount they thought New
Vision had been overpaid. However, the district court found, and we agree, that whatever the ALJ
may have determined about Contractors’ actions, those determinations did not affect the substance
of its order. See New Vision, 2017 WL 3704379, at *7. The ALJ order simply found Contractors
had made calculation mistakes and had overestimated the overpayments to New Vision. This
conclusion would have been the same regardless of whether Contractors had acted from sterling
motives or had been grossly negligent. There is no evidence the ALJ considered Contractors’
behavior as a separate or additional ground for relief, especially since New Vision was not seeking
a remedy for Contractors’ behavior but was seeking reversal of their amount determination. Not
until its district court filing did New Vision seek relief (in the form of damages and an injunction)
for alleged violations of its rights, and extensively detail why Contractors’ actions should entitle
it to relief on those claims.
But New Vision argues that Bodimetric Health Services, Inc. v. Aetna Life & Casualty, 903
F.2d 480, 486 (7th Cir. 1990) supports its claim that it can satisfy presentment requirements by
14 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
simply airing its “theories” of tortious and constitutional harms before the ALJ. Bodimetric does
not provide an obviously available hook for New Vision to hang its hat on, though, given that the
Seventh Circuit found it did not have federal subject matter jurisdiction over the plaintiff’s claims.
Id. at 487. To be sure, the Seventh Circuit acknowledged (as New Vision stresses) that “no
provision in the regulations prohibit[ed] [Bodimetric] from introducing the facts underlying its
claims during the administrative hearings” and that “Bodimetric can seek review of Aetna’s
denials through Medicare’s administrative process . . . [and] the ALJ can provide relief . . . through
the reversal of denied claims.” Id. at 486. But the court made these statements while distinguishing
Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), which had found an
exception to the § 405(h) jurisdictional requirements for plaintiffs who had no possibility of review
at all in the administrative process because their challenges were to the validity of underlying
regulations. See Bodimetric, 903 F.2d at 486 (citing Mich. Acad., 476 U.S. at 676 n.6).
The Seventh Circuit thus distinguished Michigan Academy, pointing out that Bodimetric
did have an administrative avenue for relief, and found judicial review precluded by § 405(g) and
(h): the opposite of the result New Vision desires here. Bodimetric, 903 F.2d at 487, 489–90; see
also id. at 486 (Bodimetric’s state-law tort claims and RICO claims, which it based on its travails
in the administrative process, were, “at bottom, a challenge to Aetna’s approach to processing
claims. Judicial review of such a challenge seems to be foreclosed by [Supreme Court
precedent].”). Nowhere did the Bodimetric court indicate that Bodimetric’s presentation to the
ALJ of facts that would also support state or federal claims for damages satisfied the jurisdictional
hurdle in § 405(g) and (h). As the Seventh Circuit did in Bodimetric, we hold that New Vision’s
state-law and federal constitutional claims for relief “arise under” the Medicare statute and must
15 No. 17-2165, New Vision Home Health Care, et al. v. Anthem, Inc., et al.
be dismissed because New Vision failed to satisfy the statute’s jurisdictional requirements. See
903 F.2d at 489–90.
In sum, the district court correctly concluded that it did not have subject matter jurisdiction
over Counts III–VIII because New Vision did not satisfy the presentment and exhaustion
requirements of 42 U.S.C. § 405(g) and (h) on those claims. Therefore, the dismissal for lack of
subject matter jurisdiction was proper.
VI. CONCLUSION
Because we find that the district court correctly dismissed New Vision’s claims for lack
of subject matter jurisdiction, we AFFIRM the holding of the district court on all Counts.