U.S. Court In District Of Columbia Says
It Lacked Jurisdiction To Consider Challenge To Power Mobility Devices Payment
The U.S. District Court for the District of Columbia refused
to issue a preliminary injunction enjoining enforcement of a Department of
Health and Human Services (DHHS) interim final rule governing Medicare payment
of power mobility devices (PMDs) like wheelchairs and
motorized scooters. The court, in a written decision issued December 7
following an October 25 bench ruling, found that it lacked subject matter
jurisdiction because plaintiff Power Mobility Coalition (Coalition) had failed
to exhaust administrative remedies under the Medicare Act. The court also
concluded that the Coalition failed to show its members would suffer irreparable
harm under the rule.
The Power Mobility Coalition, a non-profit association whose
members include PMD suppliers and manufacturers, sought to enjoin enforcement
of the interim final rule (70 Fed. Reg. 50940), which had an October 25, 2005
effective date. According to the Coalition, the rule was issued without notice
and the opportunity for comment and would radically change the procedures for
obtaining reimbursement of PMDs. The Coalition also
contended that the rule was arbitrary and capricious in violation of the
Administrative Procedure Act. The Coalition moved for a preliminary injunction.
The challenged rule, which was mandated by the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003, imposes two
requirements: a face-to-face examination of the beneficiary by a medical
provider and a written prescription for the item to obtain payment.
The U.S. District Court for the District of Columbia refused to grant a
preliminary injunction, concluding that it lacked subject matter jurisdiction
because the Coalition failed to exhaust administrative remedies.
The court found the Medicare Act barred jurisdiction under the
general federal-question jurisdictional statute, 28 U.S.C. � 1331. Nearly all claims
arising under the Medicare Act must be channeled through the comprehensive
remedial scheme established at 42 U.S.C. � 405(g) before a healthcare provider
may seek judicial review.
The Coalition contended that it would be unable to obtain
meaningful judicial review if it had to wait until Medicare denied a
reimbursement claim before challenging the rule administratively, arguing that
by that time the Secretary would have issued a permanent rule. But the court
found this argument "unfounded," noting Supreme Court precedent that � 405(h)
have very broad application and that suppliers who are denied a reimbursement
claim can appeal not only the denial, but also challenge the underlying rule.
The court also rejected the Coalition's argument that its
members would suffer irreparable economic injury without the injunction because
the new rule added too much uncertainty as to whether suppliers would receive
payment from Medicare as well as increased record-gathering and maintenance
costs. In the court's view, "plaintiff's claim of imminent irreparable harm is,
at best, remote and speculative." The Coalition essentially is predicting that
Medicare will deny many of its members' future reimbursement claims, which will
eventually force them out of business. But this prediction is made without ever
having a claim denied under the new rule, and without ever having sought
administrative remedies, the court reasoned.
The court also said it viewed the rule as mostly burdening
physicians and other practitioners who must conduct the face-to-face examinations
and provide the written prescriptions for PMDs. "The
only 'additional burden' placed upon the providers of PMDs
is the requirement that they have supporting documentation" and to make those
documents available to the Centers for Medicare and Medicaid Services. Thus,
the court concluded that the Coalition had failed to satisfy its burden of
showing irreparable harm.
Coalition v. Leavitt, No. 05CV2027 (RBW), 2005 WL 3312962 (D.D.C. Dec. 7,