Centro Radiologico Rolon, Inc et al v. United States of America (Department of Health and Human Services) et al

Filing 24

OPINION AND ORDER GRANTING 13 MOTION to dismiss as to All Defendants, filed by Rosa Emilia Rodriguez-Velez, First Coast Services Options, Inc., Kathleen Sebelius, Eric Holder, United States of America (Department of Health and Human Services). Judgment will enter dismissing the complaint. Signed by Judge Jose A. Fuste on 02/13/2014.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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CENTRO RADIOLÓGICO ROLÓN, INC.,
MAITE ROLÓN, and CESAR DEL
VALLE,

Civil No. 12-2051 (JAF)

Plaintiffs,
v.
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES;
ROSA EMILIA RODRIGUEZ-VELEZ;
HONORABLE KATHLEEN SEBELIUS;
HONORABLE ERIC HOLDER, and
FIRST COAST SERVICES OPTIONS,
INC.,
Defendants.
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OPINION AND ORDER

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Plaintiffs Centro Radiológico Rolón, Inc. (“CRR”), and its owners Maite Rolón

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and César del Valle, filed suit against defendants the United States of America; the

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United States Department of Health and Human Services (“HHS”); the United States

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Attorney for the District of Puerto Rico, Rosa Emilia Rodríguez-Vélez; the Secretary of

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HHS, Honorable Kathleen Sebelius; the Attorney General of the United States,

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Honorable Eric Holder; and a Center for Medicare and Medicaid Services (“CMS”)

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contract carrier called First Coast Services Options, Inc. (“First Coast”). The plaintiffs

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claim that the defendants violated their rights when they revoked CRR’s enrollment

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billing privileges under the Medicare program, and plaintiffs ask for a writ of mandamus,

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a declaratory judgment, and a temporary restraining order or preliminary injunction.

Civil No. 12-2051 (JAF)

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(Docket No. 1.) The defendants filed a motion to dismiss for lack of jurisdiction.

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(Docket No. 13.) We grant the defendants’ motion to dismiss.

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I.

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Background

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The essential facts of this case are not in dispute. CMS is a component of the

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HHS. CMS is responsible for the administration of the Medicare program, and contracts

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with private entities known as Medicare administrative contractors (“MACs”) to assist it

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in administering the program. MACs review each Medicare provider or supplier to

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ensure compliance with regulatory requirements of the Medicare program, and MACs

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conduct a first-level appeal with respect to any denial or revocation of Medicare

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enrollment and billing privileges. (Docket No. 14 at 3.) See 42 U.S.C. § 1395kk-1(a)(4).

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In this case, First Coast was the MAC that oversaw credentialing standards in Puerto

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Rico, where CRR, a provider and supplier enrolled in Medicare, is based. (Docket

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No. 14 at 1.)

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In a letter dated July 12, 2011, First Coast notified CRR that, consistent with 42

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C.F.R. § 424.515, it was requiring CRR to submit a completed enrollment application

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within sixty days. (Docket No. 14 at 7.) In a September 19, 2011, letter, First Coast

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revoked CRR’s Medicare billing privileges effective October 19, 2011, as a result of

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CRR’s failure to submit the application by the deadline. (Docket No. 14 at 7.) On

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December 15, 2011, First Coast issued a reconsidered determination affirming its

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decision to revoke CRR’s Medicare billing privileges. (Docket No. 14 at 7.)

Civil No. 12-2051 (JAF)

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CRR appealed First Coast’s reconsidered determination to an Administrative Law

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Judge (“ALJ”). (Docket No. 14 at 7.) But, on March 27, 2012, CMS and CRR submitted

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a joint motion for remand, which stated that CMS would direct First Coast to reverse

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CRR’s revocation and afford CRR another opportunity to submit an enrollment in the

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Medicare program, with the possibility that the enrollment may be denied once the

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completed application was reviewed. (Docket No. 14 at 7.)

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On June 29, 2012, First Coast postmarked a letter notifying CRR that, pursuant to

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the joint order, it had removed the revocation and reinstated CRR’s Medicare billing

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privileges, effective November 18, 2012. (Docket No. 14 at 7.) Then, in a letter dated

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July 27, 2012, First Coast informed CRR that its Medicare billing privileges would be

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revoked effective August 26, 2012. (Docket No 14 at 8.) First Coast stated that CRR did

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not meet all the credentialing standards for an Independent Diagnostic Testing Facility

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(“IDTF”), such as evidence of the required proficiency and qualifications for its

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supervising physicians and technicians. (Docket No. 14 at 2.)

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On December 27, 2012, CRR filed the instant complaint in federal court. (Docket

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No. 1.) CRR also requested reconsideration from First Coast and, on January 15, 2013,

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First Coast issued a reconsidered determination affirming the revocation on the same

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grounds.

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reconsidered determination to an ALJ. (Docket No. 14 at 8.) At the time of the filings in

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this proceeding, CRR’s appeal before the ALJ was still pending. (Docket No. 14 at 8.)

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On July 1, 2013, the defendants filed a joint motion to dismiss the case in our court.

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(Docket Nos. 13, 14.) On September 12, 2013, CRR responded in opposition to the

(Docket No. 14 at 8.)

On March 8, 2013, CRR appealed First Coast’s

Civil No. 12-2051 (JAF)

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motion to dismiss. (Docket No. 20.) The court has not been notified of an outcome in

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the ALJ proceeding.

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II.

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Legal Analysis

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A plaintiff’s complaint will survive a motion to dismiss if it alleges sufficient facts

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to establish a plausible claim for relief. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal,

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556 U.S. 662, 677 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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In assessing a claim’s plausibility, the court must construe the complaint in the plaintiff’s

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favor, accept all non-conclusory allegations as true, and draw any reasonable inferences

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in favor of the plaintiff. Rodriguez-Ramos v. Hernández-Gregorat, 685 F.3d 34, 39-40

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(1st Cir. 2010) (citation omitted).

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Medicare is governed by Title XVIII of the Social Security Act, 42 U.S.C.

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§§ 1395-1395ggg (the “Medicare Act”). In order to enroll in the Medicare program, an

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IDTF must certify in its enrollment application that it meets certain credentialing

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standards. 42 C.F.R. § 410.33(g). To retain billing privileges, a supplier must resubmit

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and recertify the accuracy of its enrollment information every five years. 42 C.F.R.

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§ 424.515. Pursuant to the Medicare Act, CMS may revoke a supplier’s enrollment and

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billing privileges in the Medicare program at any time if it cannot demonstrate that it is in

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compliance with requirements. 42 C.F.R. § 424.535(a)(1); 42 C.F.R. § 410.33(h).

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Among the credentialing requirements are that an IDTF have at least one

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supervising physician who can prove proficiency in the performance and interpretation of

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each type of diagnostic procedure performed by the IDTF. This proficiency must be

Civil No. 12-2051 (JAF)

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documented by certification in specific medical subspecialties or by criteria established

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by the Medicare contractor for the IDTF service area. 42 C.F.R. § 410.33(b)(2). Another

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requirement of the program is that non-physician employees of an IDTF must

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demonstrate basic qualifications and evidence training and proficiency.

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§§ 410.33(c), 410.33(g)(12).

42 C.F.R.

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According to the Medicare Act, a supplier who is dissatisfied with a reconsidered

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determination may request a hearing before an ALJ and, subsequently, review by the

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Departmental Appeals Board (“DAB”). 42 C.F.R. § 498.5(l). It is only after a “final

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decision” by the DAB that a supplier can seek federal judicial review.

42 C.F.R.

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§ 498.5(l)(3); 42 U.S.C. § 1395ff(b). Therefore, we lack jurisdiction at this time. See

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Puerto Rican Assoc. of Physical Med. And Rehab., Inc. v. United States, 521 F.3d 46, 48

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(1st Cir. 2009).

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CRR claims other bases of jurisdiction, but they fail as well. CRR cannot sue

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under 28 U.S.C. § 1331, because section 405(g), “to the exclusion of 28 U.S.C. § 1331, is

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the sole avenue for judicial review for all ‘claims arising under’ the Medicare Act.”

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Heckler v. Ringer, 466 U.S. 602, 614-15 (1984) (citations omitted). As for the All Writs

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Act, 28 U.S.C. § 1651, does not provide an independent basis for jurisdiction, but merely

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aids in cases where the court already has jurisdiction. Syngenta Crop Protection, Inc. v.

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Henson, 537 U.S. 28, 31 (2002). The Declaratory Judgment Act, 28 U.S.C. § 2201, also

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does not provide an independent ground for jurisdiction. See  Vargas v. Chardon, 405

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F.Supp. 1348 (D.P.R. 1975); Moro v. Telemundo Incorporado, 387 F. Supp. 920 (D.P.R.

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1974); Longo-Puerto Rico, Inc. v. U.S.E.P.A., 575 F. Supp. 990 (D.P.R. 1983). Finally,

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jurisdiction is not available pursuant to 28 U.S.C. § 1343, because government entities

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retain sovereign immunity under that statute. Many other circuits have stated as much.

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See Affiliated Prof’l Home Health Care Agency, 164 F.3d 282, 286 (5th Cir. 1999)

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(stating that “suits against the United States brought under the civil rights statutes are

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barred by sovereign immunity”); Salazar v. Heckler, 787 F.2d 527 (10th Cir. 1986);

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Jachetta v. U.S., 653 F.3d 898, 907-08 (9th Cir. 2011) (“we hold that 28 U.S.C.

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§ 1343(a)(3) does not waive sovereign immunity”).

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III.

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Conclusion

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Defendants’ motion to dismiss (Docket No. 13) is GRANTED. Judgment will
enter dismissing the complaint.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 13th day of February, 2014.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE