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U.S. Court In District Of Columbia Says It Lacked Jurisdiction To Consider Challenge To Power Mobility Devices Payment Rule


HLD, v. 34, n. 1 (January 2006)

U.S. Court In District Of Columbia Says It Lacked Jurisdiction To Consider Challenge To Power Mobility Devices Payment Rule


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.


Power Mobility Coalition v. Leavitt, No. 05CV2027 (RBW), 2005 WL 3312962 (D.D.C. Dec. 7, 2005).



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