STANCIK v. SECRETARY OF HEALTH AND HUMAN SERVICES et al

Filing 19

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 09/24/2012, that, as to Defendant Eric Holder, this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). FURTHER that Defendant Secretary of Health and Human Services' Motion for Judgment on the Pleadings (Docket Entry 6 ) be granted and that this action be dismissed. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EDWIN STANCIK,
Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES and ERIC HOLDER, U.S.
Attorney General,
Defendants.

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1:09CV488

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate

Judge

on

Defendant’s

Motion

for

Judgment

on

the

Pleadings (Docket Entry 6). (See Docket Entry dated Nov. 22, 2010;
see also Docket Entry dated Jan. 22, 2010 (assigning case to
undersigned Magistrate Judge).)

For the reasons that follow,

Defendant’s Motion for Judgment on the Pleadings should be granted.
I.

Background

Plaintiff Edwin Stancik, proceeding pro se, filed the instant
action seeking judicial review of a final agency decision denying
him Medicare payment.
Entry 7 at 1.)

(See Docket Entry 1 at 2-3; see also Docket

Plaintiff self-administered the prescription

antibiotic drug Vancomycin at his home between February 3, 2006,
and March 16, 2006.

(Docket Entry 7 at 3; Docket Entry 3-2 at 9.)

Although Plaintiff admittedly knew his Medicare Plan B coverage did
not encompass such home treatment (see Docket Entry 3-3 at 8),

Plaintiff requested payment anyway, citing “Special Circumstances”
(id.).1

When Plaintiff’s claim for Medicare payment was denied

(see id. at 28-30), he appealed, but received unfavorable decisions
at each stage of the administrative process (see Docket Entry 3-2
at 9-10, 15-19; Docket Entry 3-3 at 3-4, 16-17).

Plaintiff then

commenced the instant action contesting the final agency decision.
Defendant Secretary of Health and Human Services (“Secretary”)
thereafter filed the instant Motion for Judgment on the Pleadings
(Docket Entry 6), as to which Plaintiff has responded (Docket Entry
9) and Defendant has replied (Docket Entry 10).2
II.

Discussion

As an initial matter, Plaintiff failed to properly serve
Defendant Eric Holder.

Rule 4 of the Federal Rules of Civil

Procedure states:
If a defendant is not served within 120 days after the
complaint is filed, the court - on motion or on its own
after notice to the plaintiff - must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time.
But if the

1

Plaintiff asserts his wife required constant care and, as
a result, he could not leave his home for prolonged periods in
order to have a doctor administer the drug (Docket Entry 3-3 at 8);
nor could he afford to hire a “Home Companion” to care for his wife
during any absence (id.). Plaintiff also points out that he saved
Medicare money by self-administering the drug. (Id.)
2

Plaintiff also filed a “Response from Plaintiff to
Defendant’s reply to Plaintiff’s response to Defendant’s Motion for
Judgment on the Pleadings.” (Docket Entry 11.) This filing did
not make any substantive arguments concerning the instant Motion,
but rather asserted that the Court should hold a hearing on the
merits of the case. (Id. at 1.)
2

plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m) (emphasis added).

On January 25, 2010, the

Clerk’s Office notified Plaintiff of his failure to make service on
Defendant Eric Holder within 120 days of filing the Complaint.
(Docket Entry 4 at 1; see also Docket Entry dated Jan. 25, 2010.)
The notice further stated that Plaintiff “must comply with [Rule
4's requirement to show good cause for the failure to serve] within
10 days of receipt of th[e] notice. . . . Failure to respond to
th[e] notice within the time allotted will result in dismissal of
the action without prejudice as to defendant Eric Holder, U.S.
Attorney General.”

(Docket Entry 4 at 1 (emphasis in original).)

The record bears no indication that Plaintiff complied with the
directive to show cause or that he subsequently served Defendant
Eric Holder. (See Docket Entries dated Jan. 25, 2010, to present.)
Defendant

Eric

Holder

should

therefore

be

dismissed

without

prejudice as a defendant in this action.
With respect to Plaintiff’s claims against the Secretary, the
review of a final agency decision concerning Medicare coverage
is to be based solely on the administrative record, and
the Secretary’s findings of fact, if supported by
substantial evidence, shall be conclusive.
42 U.S.C.
§ 1395ff(b)(1)(A) (incorporating 42 U.S.C. § 405(g) by
reference). Moreover, because the Secretary is charged
with
administering
the
Medicare
Act,
[courts]
substantially defer to the Secretary’s construction of
any ambiguous language in the Act, if the Secretary’s
construction “is based on a permissible construction of
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the statute.” Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843 [] (1984).
MacKenzie Med. Supply, Inc. v. Leavitt, 506 F.3d 341, 346 (4th Cir.
2007).
Substantial evidence supports the Secretary’s conclusion that
Plaintiff self-administered a prescription drug at home (see Docket
Entry 3-3 at 8) and that he knew at the time that he would not
receive coverage under Medicare Part B for the cost of the drug
(id.).

Furthermore, with very few exceptions (not applicable in

this case), “Medicare part B does not pay for . . . any drug or
biological that can be self-administered.”
The

Secretary’s

final

decision

denying

42 C.F.R. § 410.29(a).
coverage

is

therefore

supported by the facts and correct as a matter of law.
Despite Plaintiff’s acknowledgement of the limits of his
Medicare Part B coverage (Docket Entry 3-3 at 8), he argues that
there are “special circumstances” in his case that should warrant
coverage of his drug expenses (Docket Entry 9-1 at 1).

However,

Plaintiff has not pointed to any regulation or section of the
Medicare

Act

that

provides

for

exceptions

for

“special

circumstances.” (See id.) In fact, Plaintiff recognizes that “all
of the UNFAVORABLE [administrative] decisions were explicitly based
on

apparently

Regulations.”

inviolable

and

unbending

Medicare

Laws

and

(Id.; see also Docket Entry 11 at 1 (alleging

instant Motion and subsequent filings by Defendant “continue to be
statements of law which have been the case throughout all the prior
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four tiers of the Medical Appeals Process without any consideration
of my special circumstances.”).)

Plaintiff appears to seek a

judicially-created exception to denial of coverage that has no
support in the Act itself.

The Court should decline this request

because courts must defer to the Secretary’s construction of the
Act.

MacKenzie

Med.,

506

F.3d

at

346.

The

Secretary

has

determined that “Medicare does not provide coverage for selfadministered drugs under the circumstances presented here” (Docket
Entry 3-2 at 10; see also Docket Entry 7 at 5-6) and nothing
suggests that conclusion contradicts the plain language of the Act.
The

Court

should

therefore

grant

the

Secretary’s

Motion

for

Judgment on the Pleadings in favor of Defendant.
III.

Conclusion

Although the undersigned recognizes the difficult situation in
which Plaintiff found himself, no basis exists in law to overturn
the final decision of the Secretary denying coverage of Plaintiff’s
drug expenses under Medicare Part B.
IT IS THEREFORE RECOMMENDED that, as to Defendant Eric Holder,
this action be dismissed without prejudice pursuant to Federal Rule
of Civil Procedure 4(m).

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IT IS FURTHER RECOMMENDED that Defendant Secretary of Health
and Human Services’ Motion for Judgment on the Pleadings (Docket
Entry 6) be granted and that this action be dismissed.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 24, 2012

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