Rescinded 1981
SSR 74-23c: Section 1869(b) (42 U.S.C. 1395ff(b)).—Supplementary Medical Insurance Benefits—Determinations—Appeals
20 CFR 405.835
SSR 74-23c
Selma Mitchell v. United Methodist Service, U.S.D.C., S.D. of N.Y., No. 73 Civ. 2196 (11/27/73)
Where Medicare beneficiary who sought reimbursement for portion of dentist's bills under Part B of title XVIII of the Social Security Act, as amended, was denied such reimbursement and requested judicial review of the Secretary's decision, held while judicial review is provided by statute for claims relating to Part A charges when the amount in controversy is $1,000 or more, there is no provision for judicial review of the amounts payable on claims under Part B.
GAGLIARDI, District Judge:
This action by Selma Mitchell, pro se, seeks reimbursement for a portion of the $295.00 of dentist's bills under Part B of the Medicare Statute, 42 U.S.C. §1395, et seq. from the United Medical Service, Inc. (hereinafter UMS), a contracted private "carrier" under 42 U.S.C. §1395u. The real party in interest in this proceeding, the United States of America, 20 C.F.R. §405.670, moves to dismiss the complaint on the grounds that (1) a statutory right to judicial review of allowance determinations is not granted by the Medicare statute and (2) the United States of America has not consented to a suit of this nature.
In April, 1970 and again on February, 1971, Dr. Harry Roth performed dental surgery on Mrs. Mitchell in his office. Mrs. Mitchell's application for reimbursement for the initial surgery was granted. However, after a hearing by the hearing officer, reimbursement for the February, 1971 surgery was denied on the ground that the services performed fell within the statutory exclusion from coverage for "structures directly supporting teeth" as provided in 42 U.S.C. §1395y(a)(12).
While judicial review is provided by statute for claims relating to hospital charges (Part A charges) in excess of $1,000.00 [sic] [1]42 U.S.C. §1395ff, the statute fails to provide a similar remedy for doctor and other health charges (Part B charges), those at issue before us. Accordingly, plaintiff has no statutory right to judicial review of her claim under the Medicare statute. See Kuenstler v. Occidental Life Insurance Company, 292 F. Supp. 532 (C.D. Ca. 1968).
Finally, since jurisdiction over plaintiff's claim is excluded by statute and there is no waiver of sovereign immunity by the United States of America, the real party in interest, this Court lacks jurisdiction over the parties to the action. Blackmar v. Guerre, 342 U.S. 512 (1952); Delehite v. United States of America 346 U.S. 15 (1953).
Judgment shall enter against plaintiff Mitchell, and in favor of defendant United Medical Service, Inc. dismissing plaintiff's complaint.
[1] Section 1869 (b) of the Social Security Act, as amended, provides, in pertinent part, for the judicial review of determinations made as to the amount of benefits under Part A if the amount in controversy is $1,000 or more. (Ed.)