and submitted these claims to Blue Shield for payment, pursuant to 42 U.S.C. § 1395u(b)(3)(B)(ii) (1970), as amended, 42 U.S.C. § 1395u(b)(3)(B)(ii) (Supp. IV, 1974). In August of 1970, plaintiff was informed by Blue Shield that his practice of billing for daily in-hospital medical care for patients who were apparently either extended care or sheltered care patients was under review. The following October, three "sample" claims which had been submitted by plaintiff were referred by Blue Shield to the Pennsylvania Medical Society for "peer review" and an opinion on plaintiff's method of reporting services. The review resulted in an opinion that there was over-utilization of in-hospital services by plaintiff. On the basis of this opinion, Blue Shield devised a payment formula and applied it retroactively to all of plaintiff's claims processed between August 1, 1969, and December 31, 1970.
On January 26, 1972, Blue Shield demanded a refund from plaintiff of previously paid claims in the amount of $13,960.25, based upon the determination of over-utilization. Blue Shield subsequently revised its refund demand to $13,282.40. Thereafter, plaintiff made a timely request for a hearing on three of the cases identified in the claims review. He also reserved the right to request hearings on the remaining cases. The requested hearing was held on November 27, 1973.
The decision of the hearing officer, which denied substantially all of the relief requested by plaintiff, was filed on July 19, 1974. By letter dated October 23, 1974, Blue Shield informed plaintiff that, pursuant to the decision of the hearing officer, its final refund calculation was for $13,162.40.
A written request to the Secretary for a hearing to review the decision was denied, by letter dated January 21, 1975, on the ground that the Social Security Act provided no further appeal rights in this situation. This action was commenced one month later.
Blue Shield has withheld payment on plaintiff's assigned claims since June 16, 1971, as a possible set-off for the alleged overpayments. Currently pending in the administrative process are the remaining hearings on the cases in which Blue Shield has determined that there were overpayments, as well as a dispute concerning the validity of applying the payment formula devised by Blue Shield to the withheld assigned claims in order to determine their value. These problems do not currently concern us. This suit simply seeks judicial review of the three cases which have run the course of the administrative process.
Defendants' argument that this Court lacks jurisdiction over the instant case is two-pronged. Their first contention is that there is no right of judicial review with respect to the amount of benefits payable under Part B of Title XVIII of the Social Security Act. They cite in support of that proposition the language of 42 U.S.C. § 1395ff (Supp. IV, 1974), amending 42 U.S.C. § 1395ff (1970).
The second prong of defendants' argument is that this is an action to which the United States has not consented and, therefore, the action is barred by sovereign immunity. This Court agrees with defendants that there is no right to judicial review of plaintiff's claims and, thus, we need not reach the sovereign immunity issue.
In addition to 42 U.S.C. § 1395ff(b) (Supp. IV, 1974), which makes no provision for judicial review of denials of reimbursement by a carrier under Part B of the Medicare program, see footnote 4, supra, plaintiff alleges two alternative grounds in support of this Court's jurisdiction. One is the general federal question jurisdiction statute, 28 U.S.C. § 1331. The other is Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
We preface our discussion of the jurisdiction issue by noting that 42 U.S.C. § 405(h) (1970) is applicable to claims arising under Title XVIII of the Social Security Act. 42 U.S.C. § 1395ii (Supp. IV, 1974). Section 405(h) provides:
The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 [now § 1331 et seq. ] of Title 28 to recover on any claim arising under this subchapter.
The Supreme Court has stated that the reach of section 405(h)
is not limited to decisions of the Secretary on issues of law or fact. Rather, it extends to any "action" seeking "to recover on any [Social Security] claim" -- irrespective of whether resort to judicial processes is necessitated by discretionary decisions of the Secretary or by his non-discretionary application of allegedly unconstitutional statutory restrictions. Weinberger v. Salfi, 422 U.S. 749, 762, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975).