Amer Chiro Assn Inc v. Leavitt, Michael O. ( 2005 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2005 Decided December 13, 2005
No. 04-5411
AMERICAN CHIROPRACTIC ASSOCIATION, INC.,
APPELLANT
v.
MICHAEL O. LEAVITT, SECRETARY OF THE DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(98cv02762)
George P. McAndrews argued the cause for appellant. With
him on the briefs were Peter J. McAndrews, Gerald C. Willis,
Jr., Joseph F. Harding, Matthew A. Anderson, and Thomas R.
Daly.
Jeffrey Clair, Attorney, U.S. Department of Justice, argued
the cause for appellee. With him on the brief were Peter D.
Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.
Attorney, and Barbara C. Biddle, Attorney.
Before: SENTELLE and RANDOLPH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The first issue in this appeal
from the district court’s order granting summary judgment in
favor of the Secretary of Health and Human Services is whether
the American Chiropractic Association has prudential standing
to pursue its claims under the Medicare Act. We hold that it
does. The second issue is whether the district court had
jurisdiction over each of the Association’s remaining claims.
We hold that it did not.
I.
The Medicare program subsidizes medical insurance for
elderly and disabled persons. 42 U.S.C. §§ 1395c, 1395j.
Enrollees in the program may select physicians of their choice,
with Medicare paying costs that are covered. Id. § 1395k. Or
they may obtain medical services from managed-care providers
such as health maintenance organizations (HMOs). Id.
§§ 1395w-21 to 1395w-28. The focus of the case is on these
organizations and on a particular type of “physicians’ service[],”
id. § 1395x(s)(1) – namely, manual manipulation of the spine
in order to correct a spinal misalignment or “subluxation.”
Section 1395x(r) of the Act defines “physician” to include “a
doctor of medicine or osteopathy legally authorized to practice
medicine and surgery by the State,” or “a chiropractor who is
licensed as such by the State . . . and who meets uniform
minimum standards promulgated by the Secretary, but only . . .
with respect to treatment by means of manual manipulation of
the spine (to correct a subluxation) which he is legally
authorized to perform by the State.” Id. § 1395x(r).
The Association, invoking general federal question
jurisdiction under 28 U.S.C. § 1331, filed a complaint in district
court alleging that the Secretary had misinterpreted § 1395x(r)
3
when he determined that not only chiropractors, but also medical
doctors and osteopaths could provide covered services when
they manually manipulated an enrollee’s spine to correct the
condition mentioned above (Count 3). According to the
Association, under the Act this service should be covered only
if chiropractors perform it.1 The complaint also alleged, in
Count 4, that the Secretary illegally permitted organizations
such as HMOs to require that enrollees obtain a referral from a
medical doctor, an osteopath, or other non-chiropractor in order
to obtain coverage for chiropractic correction of a subluxation.2
The district court rejected the Secretary’s argument that the
Association lacked prudential standing, Am. Chiropractic Ass’n
v. Shalala, 108 F. Supp. 2d 1, 7 n.5 (D.D.C. 2000), but agreed
that it lacked jurisdiction over Count 4, Am. Chiropractic Ass’n
v. Shalala, 131 F. Supp. 2d 174, 175-77 (D.D.C. 2001). As to
1
The Association’s complaint is aimed at the Medicare HMO
system. In 1999, the Secretary submitted a report to Congress. That
report stated that “[n]one of the plans that utilized chiropractors
included them on the staff, group, or panel.” It also noted that “[o]f
the HMOs [and other organizations] sample[d]” by the Secretary, “the
substantial majority, 78 percent, utilized chiropractors to provide the
service of manual manipulation of the spine.” These plans also used
other practitioners, such as medical doctors and osteopaths. The
remaining plans “did not utilize chiropractors to provide the service of
manual manipulation of the spine.” Donna E. Shalala, Department of
Health and Human Services, Chiropractic Services in Medicare
Managed Care ch. 4 (Apr. 1999) (report to Congress).
2
The Association also sought an order compelling the
Secretary to calculate the amount of funds he misspent under these
allegedly erroneous policies and to divert that amount toward the use
of chiropractors (Count 5). Like the district court, we consider Count
5 an extension of, or remedy for, the violations alleged in Counts 3
and 4. If those fail, so does Count 5.
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Count 3, the court held that it had jurisdiction, id. at 177-79, and
granted summary judgment in the Secretary’s favor, concluding
that chiropractors were not the only “physicians” who could
perform covered services dealing with subluxations.
II.
With respect to standing, the Secretary’s objection is that
the Association’s members are not “arguably within the zone of
interests to be protected or regulated by the statute . . . in
question.” Nat’l Credit Union Admin. v. First Nat’l Bank &
Trust Co., 522 U.S. 479, 488 (1998) (quoting Ass’n of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153
(1970)). The interests of the Association are outside this
category, according to the Secretary, because the Act was not
“intended to protect the competitive position of chiropractors or
to limit the markets available to licensed medical doctors.” Br.
for Appellee 27.
If the Secretary’s version of what Congress intended is
correct, the Association might lose on the merits. But the zone-
of-interest test, which is not “especially demanding,” does not
require an “indication of congressional purpose to benefit the
would-be plaintiff.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,
399-400 (1987) (citing Inv. Co. Inst. v. Camp, 401 U.S. 617(1971)). The question at this stage is whether Congress meant
to exclude this class of plaintiffs from those who may sue to
enforce their view of the Act, right or wrong. Id. at 399.
It is of no moment that the Association, through this
lawsuit, may be seeking to promote the financial interests of its
members. See Nat’l Credit Union, 522 U.S. at 499; Amgen, Inc.
v. Smith, 357 F.3d 103, 109 (D.C. Cir. 2004). The Medicare
program makes quality health care available to the elderly and
the disabled by reimbursing those who provide care, including
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physicians and chiropractors. See Fischer v. United States, 529
U.S. 667, 680 (2000). If the Secretary had simply refused to
permit reimbursement to any chiropractor despite the language
of § 1395x(r), no one would doubt the Association’s prudential
standing in a suit contesting the Secretary’s action. The
Association’s claim here – that the Secretary has effectively cut
off its members from potential patients who are members of
HMOs and similar organizations – is narrower. But this
scarcely alters the analysis. In both situations the interests of
enrollees and the interests of chiropractors converge: the
chiropractor provides the service, the enrollee receives it, and
Medicare provides reimbursement. This is more than enough to
satisfy the less-than-demanding zone-of-interest test. See
Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 871 (D.C.
Cir. 2001).
III.
The jurisdictional question is more complicated. “No action
against the United States, the [Secretary of Health and Human
Services], or any officer or employee thereof shall be brought
under [28 U.S.C. §] 1331 . . . to recover on any claim arising
under” the Medicare Act. 42 U.S.C. §§ 405(h), 1395ii. Judicial
review may be had only after the claim has been presented to the
Secretary and administrative remedies have been exhausted. See
42 U.S.C. §§ 405(g), (h), 1395w-22(g)(5); Shalala v. Ill. Council
on Long Term Care, Inc., 529 U.S. 1, 8-9 (2000); Heckler v.
Ringer, 466 U.S. 602, 614-15 (1984); Weinberger v. Salfi, 422
U.S. 749, 763-64 (1975). This bar against § 1331 actions
applies to all claims that have their “standing and substantive
basis” in the Medicare Act. Ill. Council, 529 U.S. at 11, 17(quoting Salfi, 422 U.S. at 761); see also Ringer, 466 U.S. at
615.
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Although § 1395ii, which incorporates § 405(h), would
appear to preclude all Medicare suits founded on general federal
question jurisdiction, the Supreme Court has recognized an
exception: if the claimant can obtain judicial review only in a
federal question suit, § 1395ii will not bar the suit. See Ill.
Council, 529 U.S. at 10-13, 17-20. The exception applies not
only when administrative regulations foreclose judicial review,
but also when roadblocks practically cut off any avenue to
federal court. As to the latter, it is not enough that claimants
would encounter “potentially isolated instances of the
inconveniences sometimes associated with the postponement of
judicial review,” or that their claims might not receive adequate
administrative attention. Id. at 23. The difficulties must be
severe enough to render judicial review unavailable as a
practical matter. Id. at 22-23.
The Association denies that its claims in this case could
even become the subject of administrative proceedings. The
Secretary argues the opposite. The question therefore is whether
the Association could get its claims heard administratively and
whether it could receive judicial review after administrative
channeling.
How the Association might have its claim heard in the
administrative proceedings leading to judicial review is easy to
see with respect to Count 4 of the complaint – the count
charging that the Secretary illegally permitted organizations
such as HMOs to require, as a condition of coverage, that the
enrollee obtain a referral from a medical doctor or an osteopath
for chiropractic correction of a subluxation. To have such a
claim heard, an enrollee could obtain the services of a
chiropractor without first obtaining a referral. After the HMO
refuses coverage because of the absence of a referral, the
enrollee could file a grievance with the HMO, claiming that the
referral requirement was illegal. See 42 U.S.C. § 1395w-
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22(g)(1)(A); 42 C.F.R. §§ 422.562(a)(1), .566(a). This would
trigger the administrative process, at the end of which is judicial
review of the Secretary’s final decision. See 42 U.S.C.
§ 1395w-22(g)(5); 42 C.F.R. § 422.612(a), (c). The chiropractor
who provided the service could also mount an administrative
challenge by “waiv[ing] any right to payment from the enrollee”
and becoming the enrollee’s assignee. 42 C.F.R. § 422.574(b).
There are minimum amounts in controversy – $100 for a hearing
before an administrative law judge, $1000 for judicial review,
see 42 U.S.C. § 1395w-22(g)(5) – but the Secretary states
without contradiction that claims may be aggregated, see 42
C.F.R. §§ 405.817(a)(2), 422.600(b). The Association’s
objection that it could not itself become a party to the
administrative proceedings is an objection the Supreme Court
rejected in Illinois Council, 529 U.S. at 24. An association
“speaks only on behalf of its member[s], and thus has standing
only because of the injury those members allegedly suffer.” Id.;
see Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,
343 (1977). We therefore agree with the district court that
Count 4 of the Association’s complaint is jurisdictionally barred.
Count 3 is more difficult. This alleges that the Secretary
misinterpreted § 1395x(r) to mean that not only chiropractors,
but also medical doctors and osteopaths could provide covered
services when they manually manipulated an enrollee’s spine to
correct the condition mentioned above. Suppose an HMO
permitted enrollees to receive this service from a medical doctor
or an osteopath or a chiropractor. Suppose also that a
participating chiropractor became a party to an administrative
proceeding in the manner just outlined. There would be a
dispute about the referral requirement, but that goes to Count 4.
Count 3 deals with who may provide the service. By hypothesis,
a chiropractor would have provided the service, and everyone
agrees that § 1395x(r) covers chiropractors. We can think of no
reason why an administrative decision-maker would reach out
8
to decide whether medical doctors and osteopaths may also do
so. The possibility of judicial review at the end of the
proceedings would be worthless. No court would adjudicate a
claim that was not in controversy.
It would be another matter entirely if the HMO provided
that only medical doctors and osteopaths could furnish the
service at issue here. According to the Secretary’s report to
Congress, twenty-two percent of HMOs have such a restriction.
See note 1 supra. An enrollee in such an HMO could enlist the
services of a chiropractor and, as we discussed with respect to
Count 4, the chiropractor could become the enrollee’s assignee.
(As with Count 4, amounts in controversy may be aggregated to
obtain judicial review.) The chiropractor could then file an
administrative claim, arguing that the HMO must reimburse him
even though the HMO allows reimbursement only for medical
doctors and osteopaths. At this point the HMO would be
expected to defend on the ground that a regulation entitles it to
restrict the type of practitioners who may provide a service. The
regulation states that “[i]f more than one type of practitioner is
qualified to furnish a particular service, the HMO . . . may select
the type of practitioner to be used.” 42 C.F.R. § 417.416(b)(3)
(emphasis added). The HMO’s invocation of this provision
would squarely present the question whether medical doctors
and osteopaths, as well as chiropractors, are “qualified to
furnish” the service of manual manipulation of the spine to
correct a subluxation. It follows that chiropractors could receive
an administrative decision on the issue presented in Count 3 and
that under Illinois Council the district court had no jurisdiction
to decide that claim.
We therefore affirm the district court’s judgment with
respect to Count 4. With respect to Count 3, we reverse the
judgment on the ground that the court lacked jurisdiction.
So ordered.