The opinion of the court was delivered by: KATZ
AND NOW, this 20th day of November, 1995, upon consideration of Defendants' Motion To Dismiss Plaintiff's Complaints Or In The Alternative For Summary Judgment, and the plaintiff's response thereto, it is hereby ORDERED that defendants' Motion is GRANTED as detailed herein and the Clerk shall mark these actions CLOSED.
Plaintiff, Trauma Service Group ("TSG"), provided medical services at various military medical facilities to persons who were eligible for care under the Civilian Health and Medical Program of the Uniformed Services ("CHAMPUS"). Plaintiff brings these actions against individual defendants MSgt. LeBlanc and Barbara O'Neil for medical services provided to these defendants or their immediate family members at Hanscom Air Force Base.
Plaintiff seeks $ 140.00 from defendant LeBlanc and $ 85.00 from defendant O'Neil. Defs.' Exh. A. Additionally, plaintiff seeks $ 7,707.47 from defendant Colonel Philip J. Keating. Id. The basis of TSG's suit against Keating is that Keating is the Medical Commander for the Winn Army Community Hospital in Fort Stewart, Georgia and as such, plaintiff contends that he is responsible for reimbursing the plaintiff for care rendered to patients who are ineligible for CHAMPUS benefits. Pl.'s Response P 10. As to LeBlanc and O'Neil, this court lacks subject matter jurisdiction over the claims against them because the plaintiff has failed to exhaust its administrative remedies. Additionally, the Defense Department program pursuant to which the subject medical services were provided specifically forbids collection directly from members of the Armed Forces. The claim against Keating is barred by official immunity. Accordingly, the defendants' motion is granted.
In deciding a motion to dismiss, the factual allegations of the complaint are to be accepted as true, reasonable factual inferences must be drawn in favor of the non-movant, and the complaint should be dismissed only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). In deciding a motion to dismiss, the Court is permitted to consider only the pleadings and matters of public record. Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988). If evidence outside the pleadings is considered, a motion to dismiss should be treated as a motion for summary judgment pursuant to Fed. R. Civ. P. 56. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter. Rather, it determines whether or not there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of showing there are no genuine issues of material fact, Gans v. Mundy, 762 F.2d 338, 340-41 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985), and, in response, the non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. Co. of Newark v. DeFrensne, 676 F.2d 965, 969 (3d Cir. 1982).
THE CLAIMS AGAINST LEBLANC AND O'NEIL
Failure to Exhaust Administrative Remedies
The CHAMPUS regulations provide an extensive administrative appeal procedure. 32 C.F.R. § 199.10. Generally, when a claim form is submitted, the CHAMPUS fiscal intermediary will adjudicate it and issue a CHAMPUS explanation of benefits (CEOB). 32 C.F.R. § 199.10(a)(1)(D); see, e.g., Defs.' Exh. K. If the claim is totally or partially denied, the beneficiary or participating provider can request consideration by the fiscal intermediary of any denial. Succeeding levels of appeal can include a formal review by the Office of CHAMPUS, a hearing before an independent hearing officer who will render a recommended decision, and a Final Decision by either the Director, Office of CHAMPUS, or the Assistant Secretary of Defense (Health Affairs), acting upon the Recommended Decision of the hearing officer. 32 C.F.R. § 199.10 (b)-(e).
"The doctrine of exhaustion of administrative remedies requires that parties first use all prescribed administrative remedies for resolving conflict before they seek judicial remedies. . . . This doctrine serves judicial economy by preventing piecemeal judicial review of agency actions and facilitates judicial review by allowing the administrative tribunal to use its expertise to develop a complete factual record. . . . Further, the doctrine serves to prevent the courts from frustrating congressional decisions to have certain disputes resolved originally in administrative forums." Facchiano v. United States Dept. of Labor, 859 F.2d 1163, 1166-67 (3d Cir. 1988) (citations omitted), cert. denied, 490 U.S. 1097, 104 L. Ed. 2d 1002, 109 S. Ct. 2447 (1989). Exhaustion is generally required unless 1) the challenged agency action involves a "clear and unambiguous violation of statutory rights or constitutional rights," 2) irreparable injury will result from resorting to the administrative process, or 3) exhaustion is futile. Id. at 1167-68 (citations omitted); see also McCarthy v. Madigan, 503 U.S. 140, 146-48, 117 L. Ed. 2d 291, 112 S. Ct. 1081 (1992) (exhaustion not required where administrative process cannot grant effective relief, will result in unreasonable delay, or is biased).
There is no record of plaintiff having availed itself of the administrative process available under 32 C.F.R. § 199.10 for resolution of its grievances prior to the filing of these complaints. Defs.' Exh. H P 4. Moreover, plaintiff does not aver that any exception to the exhaustion doctrine applies. Rather, it refers the court to a letter apparently sent to Ms. Sabo at the Chief Office of Program Integrity as "evidence" of its exhaustion of administrative remedies. See Pl.'s Response P 2 & Exh. B.
CHAMPUS Regulations Bar Suit Against LeBlanc and O'Neil
Under the CHAMPUS program, plaintiff may not seek payment for CHAMPUS covered services directly from individual members of the military. 10 U.S.C. § 1096, et seq.; 32 C.F.R. § 199.7(c)(2)(i)(B); see also Defs.' Exhs. J, K (alerting TSG to nonliability of patients). The federal regulations applicable to the CHAMPUS program provide, in pertinent part:
. . . the provider has agreed . . . that the CHAMPUS-determined allowable charge or cost will constitute the full charge or cost for the medical care listed on the specific claim form; and further agrees to accept the amount paid by CHAMPUS or the CHAMPUS payment combined with the cost-shared amount
paid by, or on behalf of the beneficiary [i.e. the ...