MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS V. MICHIGAN ACADEMY OF FAMILY PHYSICIANS, ET AL. No. 85-225 In the Supreme Court of the United States October Term, 1985 The Solicitor General, on behalf of the Secretary of Health and Human Services and Blue Cross and Blue Shield of Michigan, petitions for a writ certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PARTIES TO THE PROCEEDING The petitioners are Margaret M. Heckler, Secretary of Health and Human Services, and Blue Cross and Blue Shield of Michigan, an insurance carrier that has contracted with the Secretary pursuant to 42 U.S.C. 1395u to administer the Part B Medicare Program in Michigan on her behalf. The respondents are: (1) the Michigan Academy of Family Physicians, a nonprofit association of family physicians in Michigan; (2) Lester Webb and Charles Farber, family physicians who are eligible for specialist certification under the standards of the American Board of Family Practice but who have not been certified as specialists under those standards; (3) Glenn House, a family physician certified as a specialist under the standards of the American Board of Family Practice; and (4) Carol A. Diedrich, a resident of Michigan and a Medicare Part B recipient whose treating physician, Philip Lange, is a family physician who is neither Board-certified nor Board-eligible. TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions and regulation involved Statement A. The statutory framework B. The proceedings in this case Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The original opinion of the court of appeals, dated February 23, 1984 (App., infra, 1a-15a), is reported at 728 F.2d 326. The November 5, 1984 order of the court of appeals (App., infra, 16a), following the remand by this Court, is reported at 751 F.2d 809, and the March 19, 1985 order of the court of appeals on respondents' petition for rehearing (App., infra, 17a-22a) is reported at 757 F.2d 91. The opinion of the district court (App. infra, 23a-33a) is reported at 502 F. Supp. 751. JURISDICTION The judgment of the court of appeals was entered on March 19, 1985. The Secretary's timely petition for rehearing was denied on May 30, 1985 (App., infra, 35a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS AND REGULATION INVOLVED 28 U.S.C. 1331; relevant provisions of Sections 205(h), 1842 and 1869 of the Social Security Act, 42 U.S.C. 405(h), 1395u and 1395ff; and 42 C.F.R. 405.504(b) are reproduced at App., infra, 36a-40a. QUESTION PRESENTED Whether, notwithstanding the preclusions of review in 42 U.S.C. 1395ff and 405(h), the district court properly exercised jurisdiction under 28 U.S.C. 1331 to entertain respondent's challenge to a regulation affecting the amount of benefits payable for medical services under Part B of the Medicare Program. STATEMENT The court of appeals held in this case that the district court had jurisdiction to entertain a challenge to a regulation affecting the amount of benefits to be paid for physicians' services under Part B of the Medicare Program. This Court previsouly vacated the judgment of the court of appeals and remanded for further consideration in light of Heckler v. Ringer, No. 82-1772 (May 14, 1984). See No. 84-120 (Oct. 1, 1984). After initially concluding on remand that Ringer required dismissal of this suit, the court of appeals subsequently reinstated its prior holding that the district court had jurisdiction. A. The Statutory Framework The Medicare Program is divided into two parts. Part A provides insurance for the reasonable cost of hospital and related post-hospital services. 42 U.S.C. 1395c, 1395d. Part B establishes a voluntary program of supplementary medical insurance covering, in general, 80% of the "reasonable charge" for physicians' and other medical services. 42 U.S.C. 1395k, 1395l, 1395x(s). 1. Part A of the Medicare Program authorizes the Secretary to enter into contracts with fiscal intermediaries under which the intermediaries determine whether particular services are covered by Part A and, if so, the amount of benefits that are payable. 42 U.S.C. 1395h. See Ringer, slip op. 2-3. If the intermediary determines that a particular service is not covered by Part A, the claimant is entitled to seek reconsideration by the Health Care Financing Administration (HCFA) in the Department of Health and Human Services (HHS). 42 C.F.R. 405.710-405.716. If the intermediary's denial of the claim is affirmed on reconsideration and the amount in controversy is at least $100, the claimant has a statutory right to an evidentiary hearing on the claim before an administrative law judge (ALJ) in HHS. 42 U.S.C. 1395ff(b)(1)(C) and (2). If the ALJ denies the claim and the Appeals Council sustains that decision, the claimant may seek judicial review pursuant to 42 U.S.C. 405(g) if the amount in controversy is $1,000 or more. 42 U.S.C. 1395ff(b)(1)(C) and (2). See Ringer, slip op. 3. On judicial review, the court may consider the validity of any regulation that has the effect of limiting or denying Part A benefits to the claimant. See Ringer, slip op. 10-11, 13. The Medicare Act also provides a mechanism for a hospital or other provider of Part A services to obtain review of the amount it will be reimbursed. A provider is paid an aggregate amount for all Part A services it rendered during the relevant time period. See Heckler v. Community Health Services, No. 83-56 (May 21, 1984), slip op. 2. /1/ If the provider is dissatisfied with the intermediary's determination of the total amount of reimbursement due and if the amount in controversy is $10,000 or more, the provider may request a hearing before the Provider Reimbursement Review Board (PRRB) in HHS. 42 U.S.C. 1395oo(a) and (c). If the decision of the PRRB is adverse to the provider, it then may seek judicial review in federal district court. 42 U.S.C. 1395oo(f)(1); Heckler v. Community Health Services, slip op. 6. The Act expressly allows the provider to obtain judicial review on a question involving the validity of a regulation that has the effect of limiting the amount of reimbursement. 42 U.S.C. 1395oo(f)(1). 2. The Part B Medicare Program, at issue here, provides for far more limited review of benefit determinations. The Secretary is authorized to enter into contracts with private insurance carriers under which the carriers determine whether the particular services for which a beneficiary has submitted a claim are covered by Part B and the amount of the "reasonable charge" for such services. 42 U.S.C. 1395u; see Schweiker v. McClure, 456 U.S. 188, 190 (1982). If the carrier determines that the services for which reimbursement is sought are not covered by Part B or that the payment due is less than the amount claimed, the claimant is entitled by statute to a hearing conducted by the carrier. 42 U.S.C. 1395u(b)(3)(C); see Schweiker v. McClure, 456 U.S. at 191. However, in contrast to the Part A Program, there is no provision for administrative review by HHS of the carrier's denial of a Part B claim. 42 C.F.R. 405.502(d). Moreover, although 42 U.S.C. 1395ff(b)(1)(C) expressly authorizes a claimant to obtain judicial review of the "amount of benefits" under Part A, there is no parallel provision in 42 U.S.C. 1395ff for a claimant to obtain judicial review of the amount payable on a Part B claim. In United States v. Erika, Inc., 456 U.S. 201, 206-211 (1982), this Court held that by this omission, Congress "deliberately intended to foreclose further review of such claims" (456 U.S. at 208). Accord Ringer, slip op. 5 n.4. The Act likewise does not contain any special procedures, similar to those available to Part A providers under 42 U.S.C. 1395oo, for a physician or other supplier of Part B services to obtain administrative review by HHS or judicial review of the amount of benefits payable. If the enrollee assigns his Part B Medicare reimbursement claim to the physician or other person who furnished the services, the assignee has the same right as a beneficiary to an evidentiary hearing by the carrier. 42 C.F.R. 405.801(a); Erika, 456 U.S. at 203, 207 n.7. But as the Court held in Erika, the assignee has no right to judicial review of the carrier's decision. B. The Proceedings In This Case 1. The Social Security Act requires the carriers that administer the Part B Program on the Secretary's behalf to make payment for covered services on the basis of the "reasonable charge" for the services. 42 U.S.C. 1395u(b)(3)(B). In determining the reasonable charge, the carrier is to "take() into consideration the customary charges for similar services generally made by the physician * * * as well as the prevailing charges in the locality for similar services." 42 U.S.C. 1395u(b)(3). Applying these principles, the reasonable charge for a physician's services ordinarily is the lowest of (1) the actual charge in the particular instance, (2) the individual physician's customary charge, and (3) the prevailing charge in the locality for similar services (App., infra, 2a-3a). See 42 C.F.R. 405.502. In 1967, the Secretary promulgated the regulation at issue in this case, which recognizes that "(t)he range of prevailing charges in a locality may be different for physicians * * * who engage in a specialty practice or service than for others." 42 C.F.R. 405.504(b). The regulation accordingly permits (but does not require) a carrier, based on "(e)xisting differentials in the level of charges between different kinds of practice or service," to develop more than one range of prevailing charges. Consistent with this regulation, Blue Cross/Blue Shield of Michigan (BC/BSM), the carrier responsible for administering the Part B Program in Michigan, conducted a statistical analysis of physicians' charges in that State in 1968. Based on its analysis, BC/BSM identified three categories of physicians for reimbursement purposes: (1) hospital internists and other hospital specialists, (2) other specialists, and (3) general practitioners and other nonspecialists. The prevailing charges for specialists in Michigan were higher than those for nonspecialists, and a Part B beneficiary therefore could receive a greater reimbursement if he was treated by a specialist. App., infra, 4a. Following creation of the family practice specialty, BC/BSM in 1973 classified Board-certified family practitioners in the specialist category, but family physicians who were merely eligible for Board certification and family physicians who were neither Board-eligible nor Board-certified were grouped with the nonspecialists. Ibid. /2/ 2. Respondents filed this action on October 8, 1976 in the United States District Court for the Eastern District of Michigan to challenge BC/BSM's classification of family practitioners (C.A. App. 1, 11-29). The initial plaintiffs were the Michigan Academy of Family Physicians, one Board-certified family practitioner, and two Board-eligible family practitioners (C.A. App. 19). Later, a Part B enrollee who was the patient of a family practitioner who was neither Board-certified nor Board-eligible was joined as a plaintiff (App., infra, 31a-32a). The district court held that the establishment of separate charge screens that distinguish non-Board certified family physicians from other physicians violated the Medicare Act and that to the extent 42 C.F.R. 405.504(b) authorized the screens established by BC/BSM, it was invalid. The court relied on 42 U.S.C. 1395u(b)(3), which requires the carrier to "take() into consideration" the prevailing charges for "similar services" and to establish a ceiling based on the prevailing charge level that would cover 75% of the customary charges for "similar services" in the locality. In the court's view, these provisions required that similar services be reimbursed at an identical rate, even when performed by physicians with different degrees of specialization. App., infra, 29a-30a. The court also was of the view that the maintenance of three charge screens impermissibly "tends to influence the patient's choice of a physician" (id. at 30a-31a). Finally, the court concluded that BC/BSM did not have an adequate factual or statistical basis for distinguishing among groups of physicians (id. at 28a). As a remedy, the district court ordered the Secretary and BC/BSM to establish two categories for determining prevailing charges: the first for all physicians, and the second for chiropractors, podiatrists, and dentists (id. at 32a-33a). 3. In an opinion dated February 23, 1984, the court of appeals affirmed the district court's ruling but modified the remedy (App., infra, 1a-15a). As a threshold matter, the court of appeals rejected the Secretary's contention that the district court's exercise of jurisdiction under 28 U.S.C. 1331 was barred by 42 U.S.C. 1395ff and 405(h) (App., infra, 6a-11a). The court recognized that this Court's decision in Erika foreclosed judicial review of the amount of reimbursement for services under Part B of the Medicare Program (App., infra, 6a-8a). But the court observed that in the wake of Erika, several lower courts had "strenuously endeavored to find jurisdiction" over challenges to certain aspects of the Medicare Program (App., infra, 8a), and it elected to do the same. Thus, although the court of appeals acknowledged that "the eventual result ofthis suit may cause an increase in amounts of reimbursement" for services rendered by family physicians (ibid.), it nevertheless held that this suit was not barred by the preclusion of review in 42 U.S.C. 1395ff because respondents were challenging the "mechanism" for computing the reasonable charge for particular services, not the reasonable charge itself (App., infra, 8a-9a). The court of appeals further concluded that the district court's exercise of federal question jurisdiction under 28 U.S.C. 1331 was not barred by 42 U.S.C 405(h), as incorporated into the Medicare Program by 42 U.S.C 1395ii (App., infra, 9a-11a). The court acknowledged that in Weinberger v. Salfi, 422 U.S. 749 (1975), and subsequent decisions, this Court had held that the third sentence of Section 405(h) prohibited a court from exercising federal question jurisdiction to entertain any claim arising under the Social Security Act. But it noted that in Salfi and the other decisions, this Court had referred to the availability fo an alternative method for obtaining judicial review pursuant to 42 U.S.C. 405(g). Because there is no provision for review of Part B Medicare claims under 42 U.S.C. 405(g), the court of appeals reasoned that 42 U.S.C. 405(h) should not be construed to preclude federal question jurisdiction over a suit arising under Part B. App., infra, 10a-11a. b. On the merits, the court of appeals held that BC/BSM's calculation of the amount of reimbursement for family physicians' services by reference to the separate prevailing charge screens was invalid (App., infra, 11a-14a). In the court's view, the "touchstone of (42 U.S.C. 1395u(b)(3)) is that similar services, once determined, are to be compensated equally, regardless of who performs them" (App., infra 12a). The court further explained that its decision to invalidate the regulation was "bolstered" by its view that the reimbursement approach BC/BSM followed might create an added incentive for physicians to become specialized and for patients to seek specialized care (id. at 13a-14a). The latter incentive, the court believed, was sufficient to support a finding that "the regulation as applied violates 42 U.S.C. Section 1395a, prohibiting infringment of a patient's free choice of a physician" (App., infra 14a). However, the court of appeals concluded that the district court's remedy went "too far," and it instead remanded the case to the Secretary "with instructions to consider similar services in an equal manner regardless of who performs that service" (id. at 14a-15a). 4. The Secretary and BC/BSM then filed a petition for a writ of certiorari, arguing that the court of appeals' jurisdictional ruling was inconsistent with this Court's decisions in Ringer and Erika. The Court granted the petition, vacated the judgment of the court of appeals, and remanded the case to the court of appeals for further consideration in light of Ringer. See No. 84-120 (Oct. 1, 1984). 5. On remand, the court of appeals at first remanded the case to the district court with instructions to dismiss for lack for jurisdiction, explaining that "the principles stated by the Supreme Court in Heckler v. Ringer require us to find that the federal courts lack jurisdiction over the present case" (App., infra, 16a). However, on respondents' petition for rehearing, the panel reversed itself once more and held that Ringer and Erika did not preclude the exercise of jurisdiction in this case (App., infra, 17a-22a). The court of appeals acknowledged in its opinion on rehearing that this Court, in footnote 4 of its opinion in Ringer, held that judicial review was barred insofar as that case arose under Part B of the Medicare Program (App., infra 21a). But although this Court expressly relied for this proposition on its prior decision in Erika (see Ringer, slip op. 5 n.4), which in turn relied on 42 U.S.C. 1395ff (see 456 U.S. at 206-211), the court of appeals stated that "(i)n reaching its decision in Heckler v. Ringer(,) the Supreme Court did not rely on Section 1395ff" (App., infra, 18a n.2). The court of appeals therefore did not discuss 42 U.S.C. 1395ff. With regard to the additional preclusion of review in 42 U.S.C. 405(h), the court of appeals acknowledged that this Court held in Ringer that the challenge to the regulation there at issue fell within the coverage of Section 405(h) (App., infra 19a-20a) and that the application of the jurisdictional bar in Section 405(h) does not depend on whether judicial review of the particular claim is otherwise available under the Social Security Act itself (App., infra, 21a-22a). But without explaining why Ringer was not therefore dispositive, the court of appeal held that the district court did have jurisdiction in this case under 28 U.S.C. 1331, relying on nothing more than a "presumption" favoring judicial review and its notion that "for every right there must be a remedy" (App., infra 22a). The court of appeals further held that Ringer does not in any event foreclose judicial review by "a party other than a claimant for benefits" (App., infra, 21a-22a) -- presumably meaning the physicians who challenged the regulation and charge screens but did not submit an actual claim for reimbursement. For the foregoing reasons, the court reinstated its February 23, 1984 opinion sustaining the district court's exercise of jurisdiction under 28 U.S.C. 1331 (App., infra, 22a). /3/ REASONS FOR GRANTING THE PETITION The decision of the court of appeals permitting judicial review of matters pertaining to the amount of benefits payable under the Part B Medicare Program is flatly inconsistent with this Court's dicisions in United States v. Erika, Inc., 456 U.S. 201 (1982), and Heckler v. Ringer, No. 82-1772 (May 14, 1984). Those cases, like this one, involved challenges to a regulation or instruction issued by the Secretary that had the effect of limiting the amount of benefits the carrier could award on a particular claim, and the Court's holdings in Erika and Ringer therefore squarely control this case. The court of appeals' failure to follow Ringer, after it was given an opportunity by this Court to do so, is inexplicable. "(U)nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375 (1982). In direct conflict with the decision below, the Fourth Circuit recently held, also following a remand by this Court, that Ringer required the dismissal for lack of jurisdiction of a challenge to a regulation that had the effect of limiting the amount of benefits payable for particular services under Part B. Starnes v. Schweiker, 748 F.2d 217 (4th Cir. 1984), cert. denied, No. 84-1309 (Apr. 15, 1985). That conflict warrants resolution by this Court, esepcially since the decision below threatens to foster once again the widespread litigation on questions pertaining to the amount of reimbursement under Part B that prevailed prior to Erika. Because this Court already has resolved the precise issue presented in this case and because the court of appeals offered no substantial basis for distinguishing this case from Ringer, there is no need for the Court to grant plenary review here. We therefore suggest that summary reversal of the judgment below is appropriate. 1. Respondents invoked the jurisdiction of the district court under 28 U.S.C. 1331 to challenge the prevailing charge screens used to calculate the amount of Part B Medicare benefits paid for services furnished by family physicians. Judicial review of such matters is barred by two separate provisions of the Social Security Act. The first is 42 U.S.C. 1395ff, which exclusively governs the availability of judicial review for participants in the Medicare Program, but does not provide for such review of the amount of benefits under Part B. The second is 42 U.S.C. 405(h), as incorporated into the Medicare Program by 42 U.S.C. 1395ii, which precludes the bringing of an action under 28 U.S.C. 1331 to recover on any claim "arising under" the Social Security Act. a. In 42 U.S.C. 1395ff(a), Congress provided that "the determination of the amount of benefits under part A (of the Medicare Program) shall be made by the Secretary in accordance with regulations prescribed by (her)." The Secretary is authorized to enter into contracts with fiscal intermediaries to make these initial determinations on her behalf. See 42 U.S.C. 1395h. Under 42 U.S.C. 1395ff(b), an indiviual who is dissatisfied with the intermediary's determination as to "the amount of benefits under part A" is entitled to a hearing before an ALJ in HHS if the amount in controversy is $100 or more and to judicial review, as provided in 42 U.S.C. 405(g), if the amount in controversy is $1,000 or more. Under Part B, determinations and evidentiary hearings with respect to the amount of benefits on a particular claim are conducted entirely by private insurance carriers; there is no provision in 42 U.S.C. 1395ff(b) for review by HHS. Moreover, as this Court recognized in Erika (456 U.S. at 208), 42 U.S.C. 1395ff(b) likewise conspicuously fails to authorize judicial review of the "amount of benefits" under Part B, even though it expressly authorizes such review under Part A. In light of the Act's "precisely drawn provisions," the Court in Erika found this omission persuasive evidence that Congress had "deliberately * * * foreclose(d)" judicial review of benefit amount determinations under Part B. 456 U.S. at 208. The Court in Erika further found that this preclusion of review was "unambiguously support(ed)" by the legislative history of Section 1395ff. 456 U.S. at 208-211. /4/ Respondents' challenge in this case pertains directly to the carrier's calculation of the "amount of benefits" to be paid under Part B for services furnished by family physicians. It therefore is foreclosed by the very test and legislative history of 42 U.S.C. 1395ff that compelled the Court's unanimous holding in Erika. Respondents cannot avoid that conclusion by styling their suit as a challenge only to the regulation issued by the Secretary, not the actual amount of benefits awarded by the carrier. The regulation at issue authorizes (but does not require) a carrier to establish different prevailing charge levels for services performed by physicians and others who have different degrees of specialization. Respondents challenge that regulation precisely because the carrier in Michigan has chosen to establish a different screen for certain family physicians that in turn operates as a ceiling on the amount of benefits payable under Part B for services rendered by those physicians. Indeed, in order even to have standing to bring this suit, respondents must rely on the effect the regulation has on the amount of benefits payable (compare Ringer, slip op. 11-12), and the court of appeals acknowledged that "the eventual result of this suit may cause an increase in amounts of reimbursement" (App., infra 8a). Thus, the preclusion of review in 42 U.S.C. 1395ff applies fully to challenges to regulations that underlie the carrier's decision concerning the amount of benefits. /5/ Respondents' contention at bottom is that separate charge screens are not authorized by the Medicare Act, which the regulation at issue merely implements. Their legal argument therefore would be exactly the same if the Secretary had never promulgated the regulation and the carrier in Michigan had adopted the separate screens based solely on its own interpretation of the Medicare Act. /6/ As Erika itself makes clear, such a statutory challenge to the carrier's actions is foreclosed by 42 U.S.C. 1395ff. See 456 U.S. at 204-205. In any event, in Erika itself, the plaintiff's claim to increased benefits was based in part on a challenge to instructions issued by the Secretary, which bound the carriers in the same manner as formal regulations (see Ringer, slip op. 3-4; 42 C.F.R. 405.860) and which limited the amount of benefits that could be awarded by the carriers. See Erika, Inc. v. United States, 634 F.2d 580, 590-591 (Ct. Cl. 1980). This Court nevertheless held that judicial review was foreclosed. /7/ If there could be any doubt remaining on this point after Erika, it was dispelled by the decision in Ringer. That case involved a challenge to a regulation issued by the Secretary that prohibited the payment of any amount of benefits under Medicare for a particular medical service. Slip op. 2-5. Yet the Court held, without dissent, that insofar as the regulation applied to the Part B Program, judicial review of the regulation was barred by this Court's decision in Erika. Ringer, slip op. 5 n.4. The Court so held even though the plaintiffs in Ringer, like respondents herein, did not actually request the Court to award benefits, but instead sought only an invalidation of the regulation that would bind the carrier in its subsequent adjudication of individual claims. Slip op. 9-10, 12. Because the Court in Ringer explicitly relied on Erika, which in turn relied on the foreclosure of review in 42 U.S.C. 1395ff, the court of appeals in this case was simply mistaken when it stated that "(i)n reaching its decision in (Ringer), the Supreme Court did not rely on Section 1395ff" (App., infra 18a n.2). And this error might explain the court of appeals' otherwise inexplicable assertion that its jurisdictional holding was not inconsistent with Ringer (App., infra, 22a). b. The correctness of the result indicated by 42 U.S.C. 1395ff standing alone -- that judicial review of a regulation affecting the calculation of the amount of benefits under Part B is foreclosed because it is not expressly authorized by the Social Security Act -- is confirmed by 42 U.S.C. 405(h), which is made applicable to the Medicare Program by 42 U.S.C. 1395ii. The second sentence of Section 405(h) provides that "(n)o findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided" (emphasis added). This sentence embodies a general rule under the Social Security Act that judicial review is unavailable except where and in the manner such review is expressly authorized by that Act. /8/ Because Congress has not affirmatively provided for judicial review under Part B in the Social Security Act itself, the second sentence of Section 405(h) precludes such review. The third sentence of Section 405(h) further provides that "(n)o action against the * * * Secretary * * * shall be brought under section ( ) 1331 * * * of title 28 to recover on any claim arising under this subchapter." The court of appeals' holding that the district court had jurisdiction in this case under 28 U.S.C. 1331 directly contravenes this jurisdictional bar as well. This conclusion, too, is compelled by Ringer. There, the Court held that Section 405(h) barred the bringing of an action under 28 U.S.C. 1331 to challenge instructions issued by the Secretary to fiscal intermediaries and formal ruling (equivalent to a regulation) issued by the Secretary that had the effect of barring the payment of benefits under Medicare for a particular type of surgery. Ringer, slip op. 10-12, 16-23. The Court explained that the plaintiffs' assertedly "procedural" challenge to those directives was inextricably intertwined with their substantive claims to benefits and that the challenge therefore could be raised only in an action for judicial review under the Social Security Act itself -- pursuant to 42 U.S.C. 405(g), after full exhaustion of administrative remedies. Ringer, slip op. 9-12. The court of appeals' holding in its original opinion in the instant case that Section 405(h) does not bar review because respondents purport to challenge only the "procedure" utilized by the carrier to calculate benefits, not the amount of benefits paid on a particular claim (App., infra, 10a), is squarely inconsistent with Ringer. Following this Court's remand, the court of appeals recited this controlling aspect of Ringer (App., infra, 19a-20a), but it nevertheless reinstated its prior opinion finding jurisdiction under 28 U.S.C. 1331 (App., infra 22a), apparently relying once again on the asserted distinction, rejected in Ringer, between a challenge to a regulation affecting the amount of benefits and a challange to a decision on a particular claim for benefits (App., infra, 18a-19a, 20a). The court of appeals also sought in its original opinion to distinguish this Court's decisions construing Section 405(h) on the ground that in Salfi and its progeny, judicial review was in any event available under 42 U.S.C. 405(g), whereas if Section 405(h) were read to bar federal question jurisdiction under Part B, judicial review would be entirely foreclosed becaused 42 U.S.C. 405(g) is not available as an alternative avenue for judicial review under Part B. See App., infra, 10a. Thereafter, this Court in Ringer explicitly rejected the proposition that the meaning of Section 405(h) somehow shifts depending on whether review is available under Section 405(g), Ringer, slip op. 19. Yet on remand after Ringer, the court of appeals expressly credited this very argument (App., infra 19a, 20a, 21a). c. The court of appeals also held on remand that Ringer does not bar challenges by "a party other than a claimant for benefits" (App., infra, 22a), by which the court apparently meant the physicians who challenged the regulation and charge screens but did not request the court to award benefits. This attempt to distinguish Ringer is frivolous. In Ringer, one plaintiff had not yet had the BCBR surgery and thus was not in a position to submit a request for benefits to the intermediary. The Court nevertheless held that 42 U.S.C. 405(h) foreclosed the bringing of an action under 28 U.S.C. 1331 to challenge the Secretary's ruling that barred payment for the surgery. Ringer, slip op. 16-23. The physicians in this case are in exactly the same position. They could have standing to challenge the regulation authorizing separate charge screens only because they have submitted or will submit assigned claims for benefits that would be affected by those charge screens. Under Ringer, the fact that they have not yet done so (if indeed that is the case) does not remove them from the jurisdictional bar in Section 405(h). It would, moreover, be anomalous indeed for Congress to permit physicians to obtain judicial review but to deny such review to beneficiaries, who pay premiums to be insured under the Part B Program and therefore are most directly affected by regulations limiting the amount of benefits thay may be paid. The Act itself demonstrates that Congress did no such thing. A carrier administering the Part B Program on behalf of the Secretary may make payment to a physician only if the beneficiary has assigned his claim for benefits to the physician. 42 U.S.C. 1395u(b)(3)(B)(ii). Although the Act grants a right of administrative review only to an "individual enrolled under (Part B)," 42 U.S.C. 1395u(b)(3)(C), the Secretary by regulation has provided that a physician who accepts an assignment stands in the shoes of the beneficiary and has the same right to administrative review by the carrier. 42 C.F.R. 405.801(a); Erika, 456 U.S. at 207 n.7. But the assignee physician also is subject to the same preclusion of judicial review that applies to the beneficiary. The Court so held in Erika. There it was the supplier of Part B services, not the beneficiaries themselves, who sought judicial review. The foreclosure of review is confirmed by a comparison with the Part A Program. Under Part A, Congress enacted a separate mechanism by which a hospital or other provider may obtain judicial review of the amount of reimbursement it will receive for services it renders to Medicare beneficiaries. 42 U.S.C. 1395oo(f)(1); see pages 3-4, supra. "In the context of the statute's precisely drawn provisions," the fact that Congress expressly authorized judicial review for providers under Part A, but not for their counterparts under Part B (in this case, physicians), furnishes pursuasive evidence that Congress "deliberately intended to foreclose" review in the latter situation. Erika, 456 U.S. at 208. See also Block v. Community Nutrition Institute, No. 83-458 (June 4, 1984), slip op. 6. d. In the end, the court of appeals was forced to rely on nothing more than a "presumption" in favor of judicial review, believing that "for every right there must be a remedy" (App., infra, 22a). But this Court made clear in Block v. Community Nutrition Institute, supra, that "(t)he presumption favoring judicial review of administrative action is just that -- a presumption" (slip op. 8) -- and that it may be overcome by a consideration of the language, structure, purpose and legislative history of the statute and the nature of the administrative action involved (id. at 5, 8-11). When the court of appeals first ruled, this Court already had held in Erika that a congressional intent to preclude judicial review under Part B was "persuasive(ly) evidence(d)" by the test of 42 U.S.C. 1395ff (456 U.S. at 208) and "unambiguously support(ed)" by its legislative history (id. at 211). Subsequently, the Court, without dissent, adhered to that view in Ringer (slip op. 5 n.4). Needless to say, these holdings should have been sufficient for the court of appeals, on remand after Ringer, to overcome the presumption in favor of judicial review. 2. a. The decision of the court of appeals in this case directly conflicts with the Fourth Circuit's recent decision in Starnes v. Schweiker, 748 F.2d 217 (1984), cert. denied, No. 84-1309 (Apr. 15, 1985). There, the Fourth Circuit, like the Sixth Circuit in the instant case, initially held that 42 U.S.C. 1395ff and 42 U.S.C. 405(h) did not bar federal question jurisdiction over a challenge to directives issued by the Secretary that limited payments for certain Part B services. Starnes v. Schweiker, 715 F.2d 134 (1983). This Court subsequently vacated the Fourth Circuit's judgment and remanded for further consideration in light of the intervening decision in Ringer. Heckler v. Starnes, No. 83-1149 (June 4, 1984). Faithful to that mandate, the Fourth Circuit on remand held that the suit must be dismissed for lack of jurisdiction. It explained (748 F.2d at 218): Ringer establishes that we misread Erika. Ringer decides that Starnes' contention that there were procedural irregularities in the promulgation of the caps (is) so inextricably intertwined with a claim for benefits that any judicial review is barred by 42 U.S.C. Section 1395ff. Similarly here, respondents' challenge to the regulation and the separate charge screens it authorizes is intertwined with the claims for benefits that are affected by those screens, and judicial review therefore is barred by 42 U.S.C. 1395ff. The court of appeals' decision in this case thus conflicts with Starnes. That conflict warrants resolution by this Court. b. Other courts of appeals, following Ringer, have further recognized that "whether a claimant challenges the procedures used by the Secretary to reject a claim or challenges the substantive basis for that rejection, (42 U.S.C.) 405(h) makes (28 U.S.C.) 1331 jurisdiction unavailable." Ganem v. Heckler, 746 F.2d 844, 848 (D.C. Cir. 1984). See also American Federation of Home Health Agencies, Inc. v. Heckler, 754 F.2d 896, 897-898 (11th Cir. 1984); Smith v. North Louisiana Medical Review Ass'n, 735 F.2d 168, 171-172 (5th Cir. 1984). The decision below finding jurisdiction under 28 U.S.C. 1331 over respondents' challenge to the manner in which the carrier calculates the reasonable charge conflicts with these decisions as well. c. We had assumed that, whatever other jurisdictional issues under the Social Security Act remain unresolved, /9/ it at least was firmly established that judicial review under Part B of the Medicare Act is entirely foreclosed (at least in the absence of a constitutional challenge to the Medicare Act itself, cf. Schweiker v. McClure, supra). The Sixth Circuit's ruling in this case does away with that assumption and threatens to reintroduce the regime of uncertainty and widespread litigation on Part B issues that prevailed prior to Erika. /10/ This Court should not permit such a disregard of its clear pronouncements. /11/ CONCLUSION The petition for a writ of certiorari should be granted, and the judgment of the court of appeals should be summarily reversed. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General ANTHONY J. STEINMEYER HAROLD J. KRENT Attorneys AUGUST 1985 /1/ The method of calculation of payments under Part A has been revised by the enactment of Section 1886 of the Act, 42 U.S.C. 1305ww, which adopts a prospective payment system and directs that providers be reimbursed at a flat rate for particular services. See Heckler v. Redbud Hospital Dist., No. A-32 (Judy 24, 1985), slip op. 1-2 (Rehnquist, Circuit Justice). However, the rights of beneficiaries and providers to administrative and judicial review under Part A continue to be governed by the express provisions in 42 U.S.C. 1395ff and 1395oo, which are discussed in the text. /2/ The government acknowledged in proceedings in district court in this case that Board-eligible family physicians should have been included in the specialist category (App., infra, 27a). /3/ The Secretary's petition for rehearing en banc was denied in an order dated May 30, 1985 (App., infra, 35a). /4/ The Court quoted the Senate Report on the original Medicare Act, which stated that the Act did not provide for judicial review of "a determination concerning the amount of benefits under part B" and that the provision for review by carriers under Part B was intended to be the "exclusive" remedy. See 456 U.S. at 208, 209 n.11, quoting S. Rep. 404, 89th Cong., 1st Sess. 54-55 (1965). The Court also quoted the Conference Report on the 1972 amendments to 42 U.S.C. 1395ff, which explained that "there is no authorization * * * for judicial review on matters solely involving amounts of benefits under Part B" (456 U.S. at 210, quoting H.R. Conf. Rep. 92-1605, 92d Cong., 2d Sess. 51 (1972)). /5/ This conclusion also is evident from the structure of 42 U.S.C. 1395ff. In 42 U.S.C. 1395ff(b), Congress has authorized judicial review of the "amount of benefits under part A," which, under 42 U.S.C. 1395ff(a), is determined in accordance with regulations issued by the Secretary. As we have said (see page 3, supra), judicial review under Part A may include a challenge to regulations that establish benefit amounts or guide fiscal intermediaries in computing those amounts. The corresponding foreclosure of judicial review under Part B accordingly must extend to challenges to instructions or regulations issed by the Secretary that have the effect of limiting the amount of benefits determined by a carrier. /6/ As this Court observed in Ringer (slip op. 13), the determination by the Secretary whether to promulgate a generally applicable rule to resolve a particular issue, or instead to permit individual adjudication, is a matter committed to the Secretary's discretion. The availability of judicial review under Part B should not turn on whether the Secretary has chosen to promulgate such a regulation or instead left the issue to the carrier to resolve. /7/ It is worth noting that in Erika, the American Academy of Family Physicians, represented by counsel who also represents respondents in this case, filed a brief as amicus curiae. That brief argued extensively that 42 U.S.C. 1395ff should not be read to foreclose regulatory, statutory or constitutional challenges to a carrier's action, even if review of essentially arithmetic computations of benefit amounts is foreclosed (Amicus Br. at 15-18, 21 n.13, 23, 25-27). The brief alo relied upon the district courts' decision in the instant case as an example of the sort of statutory challenge to a carrier's actions that, like the claim in Erika itself, should not be foreclosed by 42 U.S.C. 1395ff (Amicus Br. at 28). Respondents therefore are attempting in this case to reargue the position that was advanced on behalf of family physicians but was rejected by this Court in Erika. /8/ Because carriers made determinations on claims for benefits under Part B on behalf of the Secretary (see Schweiker v. McClure, 456 U.S. at 190), this preclusion of review applies equally to findings and decisions by the carriers under Part B. /9/ We have recently sought review of jurisdictional rulings in three cases arising under Title II or Title XVI of the Social Security Act, 42 U.S.C. 401 et seq., 1381 et seq. See Heckler v. Owens, appeal pending, No. 84-1905 (docketed June 5, 1985); Heckler v. City of New York, petition for cert. pending, No. 84-1923 (filed June 7, 1985); Heckler v. Polaski, petition for cert. pending, No. 85-55 (filed July 11, 1985). /10/ Several district courts likewise have failed to follow Ringer in Part B Medicare cases, thereby underscoring the potential for such litigation. See , e.g., National Association of Patients on Hemodialysis & Transplantation, Inc. v. Heckler, 588 F. Supp. 1108, 1115-1118 (D.D.C. 1984); Bio-Medical Applications of Providence, Inc. v. Heckler, 593 F. Supp. 1233, 1235-1236 (D.D.C. 1984), appeal pending, No. 84-5802 (D.C. Cir.); Linoz v. Heckler, 598 F. Supp. 486 (D. Hawaii 1984), appeal pending, No. 84-2446 (9th Cir.). /11/ Because the district court clearly was without jurisdiction in this case, we have not sought review of the court of appeals' decision on the merits. However, for the reasons stated in our previous petition for a writ of certiorari in this case (84-120 Pet. 12 n.5), it is our view that the court of appeals' invalidation of the relevant regulation, which was promulgated only one year after the Medicare Program went into effect, was plainly incorrect. We shall not repeat that discussion here. APPENDIX