Petition for Writ of Certiorari — Darrell E. Williams, Petitioner v. Allegheny County, Pennsylvania, et al.

No. _________

IN THE

SUPREME COURT OF THE UNITED STATES

DARRELL E. WILLIAMS,

Petitioner,

v.

ALLEGHENY COUNTY, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Darrell E. Williams, Esq.

8010 Woodcreek Drive

Bridgeville, PA 15017

(412) 983-3901

Williamsdew123@gmail.com

Attorney for Petitioner

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTIONS PRESENTED

1. Whether this Court should directly consider the

issue

of

what

constitutes

“exhaustion

of

administrative remedies” according to the Medicare

Act, because the statute is unclear whenever the

Medicare Appeals Council (“MAC”) does not render

any decision.

ii

LIST OF PARTIES

[X] All parties do not appear in the caption of the

case on the cover page. A list of all parties under the

caption ALLEGHENY COUNTY, ET AL., to the

proceeding in the court whose judgment is the

subject of this petition is as follows:

Aetna Inc., Aetna Health Inc., and

Aetna

Life

Insurance

Company

(“Aetna”), and ALLEGHENY COUNTY,

as owner and operator of JOHN J.

KANE REGIONAL CENTER-SC d/b/a

KANE SCOTT CENTER (“Kane”).

RELATED PROCCEEDING

• DARRELL E. WILLIAMS v. ALLEGHENY

COUNTY ET AL., No. 23-2190 (3d Cir. 2024).

• DARRELL E. WILLIAMS v. ALLEGHENY

COUNTY ET AL., W.D. Pa. No. 2:2021-cv-00656

iii

TABLE OF CONTENT

Page(s)

QUESTIONS PRESENTED……………..……………..i

LIST OF PARTIES……………………………………....ii

RELATED PROCEEDINGS……………………………ii

INDEX OF APPENDICES………………………….….iv

TABLE OF AUTHORITIES CITED………………......v

OPINIONS BELOW....................................................1

JURISDICTION...........................................................1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................................2,3

STATEMENT OF THE CASE .................................3,4

REASONS FOR GRANTING THE WRIT ..............5-7

1. Whether this Court should directly

consider the issue of what constitutes

“exhaustion

of

administrative

remedies” according to the Medicare

Act, because the statute is unclear

whenever the Medicare Appeals

Council (“MAC”) does not render any

decision.

CONCLUSION...........................................................7

iv

INDEX OF APPENDICES

APPENDIX A

Opinion of the United States Court of Appeals for the

Third Circuit

Unreported.............................................................1a

APPENDIX B

Opinion of the United States Court for the Western

District of Pennsylvania granting Defendants’

Motions for Summary Judgment

Unreported…………………………………………..10a

APPENDIX C

Order of the United States Court of Appeals for the

Third Circuit Denying Plaintiff’s Motion for

Rehearing and Rehearing En Banc

Unreported...........................................................37a

v

TABLE OF AUTHORITIES CITED

Statutes

Page(s)

28 U.S.C. § 1254(1)………………………………………1

42 C.F.R. § 405.1100(d)…………………….…………2,4

20 C.P.R. § 404.900a(5)………………………….……2,6

45 C.F.R. § 90.50a(1)…………………….…….…..….3,6

1

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Third Circuit appears at Appendix A

at pages 1a-9a to the petition and is unpublished.

The opinion of the United States District Court for

the Western District of Pennsylvania appears at

Appendix B at pages 10a-36a to the petition and is

unpublished.

JURISDICTION

The date on which the United States Court of

Appeals decided my case was August 15, 2024. A

timely petition for rehearing was denied by the

United States Court of Appeals on the following date:

September 11, 2024, and a copy of the order denying

rehearing appears at Appendix C at pages 37a-38a.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the five (5) levels of

administrative review of the Medicare Act is review

by the Medicare Appeals Council (“MAC”) at 42

C.F.R. § 405.1100(d) provides:

“(d) When deciding an appeal that was

escalated from the OMHA level to the

Council, the Council will issue a final

decision or dismissal order or remand

the case to the OMHA Chief ALJ within

180 calendar days of receipt of the

appellant’s request for escalation,

unless the 180 calendar day period is

extended as provided in this subpart.”

The relevant provision

404.900a(5) provides:

of

20

C.P.R.

“(5) Federal court review. When you

have completed the steps of the

administrative review process listed in

paragraphs (a)(1) through (a)(4) of this

section, we will have made our final

decision. If you are dissatisfied with our

final decision, you may request judicial

review by filing an action in a Federal

district court."

§

3

The relevant provisions of the Exhaustion of

Administrative Remedies of the Department of

Health and Human Services, which oversees CMS

and the Medicare Act at 45 C.F.R. § 90.50a(1)

provides that a civil action may be filed when the

administrative remedies are exhausted if:

“(1) 180 days have elapsed since the

complainant filed the complaint and the

agency has made no finding with regard

to the complaint.”

STATEMENT OF THE CASE

Moneena Williams (“M.W.”), deceased, was in

Kane’s skilled nursing facility (SNF) and receiving

daily wound care until her services were terminated

on May 18, 2019 by Aetna. While in Kane’s SNF

facility, M.W.’s wound was looking good according to

the general progress notes (“GPN’). On May 19,

2023, M.W. was transferred to Kane’s long-term care

(LTC) facility (same building different floor) for ten

(10) days. For the first five (5) days in the LTC (e.g.,

May 19-22), GPNs were generated stating among

other things the assessment and treatment of M.W.’s

wound. However, the last five (5) days in the

LTC (e.g., May 23-28), the GPNs were either not

generated or missing for those five (5) days.

And on the morning of May 28, 2019, M.W. went to

her follow-up vascular appointment; and from there

was emergency transported to UPMC Presbyterian

hospital for amputation. M.W.’s entire stay was at

Kane, no other place.

4

The Third Circuit’s reason for the five (5) day

gap in the GPNs is as follow: “But Kane’s policy only

required documentation of a change in the wound,14

so if it remained unchanged during that period, no

recordkeeping would have been required.”

(Emphasis added; Appendix A at page 5a).

On May 18, 2021, Williams filed the present

complaint along with exhibits showing the entire

Medicare Appeal process. On June 28, 2023, the

Court in an Order granted both Aetna’s and Kane’s

Motions for Summary Judgment based upon, among

other thing, that Williams or M.W. did not received a

final decision from the MAC, and therefore failed to

establish that he or M.W. exhausted each step of the

administrative review process. (See App. B at page

33a). Williams appealed.

On June 28, 2024, the Third Circuit panel

affirmed the decision of the District Court.

(Appendix A at pages 1a-9a). Appellant Williams

respectfully requested a Rehearing En Banc, which

was denied in an Order dated September 11, 2024.

(Appendix C at pages 37a-38a).

Because 42 C.F.R.§ 405.1100(d) requires that

the MAC issue a decision or dismissal within 180

days and before federal review (20 C.P.R. §

404.900a(5)), Williams and others similarly situated

are without a remedy when the MAC fails to render

any decision as in the present case. Therefore,

Petitioner respectfully requests that this Court grant

this petition for the reasons discussed below.

5

REASONS FOR GRANTING THE WRIT

I.

Whether This Court Should Directly

Consider

The

Issue

Of

What

Constitutes

“Exhaustion

Of

Administrative Remedies” According

To The Medicare Act, Because The

Statute Is Unclear Whenever The

Medicare Appeals Council (“MAC”)

Does Not Render Any Decision.

As explained by the Third Circuit, upon

receiving an initial determination on an application

for benefits, a beneficiary must traverse four levels of

administrative review before a district court has

subject-matter jurisdiction to review a Medicare

coverage decision: (1) a request for redetermination

by a State Quality Improvement Organization

contracted by the Centers for Medicare Studies

(CMS); (2) a reconsideration request to a Qualified

Independent Contractor contracted by CMS; (3) a

hearing before an Administrative Law Judge for the

Office of Health and Medicare Appeals; and (4) a

review by the Medicare Appeals Council. (See App.

A at page 8a).

Here, the court ruled that Williams exhausted

only the first three levels of administrative review,

and requested that the Medicare Appeals Council

review his claim. Sometime in December of 2019 or

January of 2020, M.W. received an Acknowledgment

of Request for Review from the Departmental

Appeals Board, stating that "it may be several

months before the Medicare Appeals Council can act

6

on your request for review."

Beyond this

Acknowledgement of Request for Review, Williams

has not received a decision or any other

communications from the MAC. (See App. B at page

17a). Therefore, without an adverse final decision,

Williams is not entitled to judicial review according

20 C.P.R. § 404.900 ("If you are dissatisfied with our

final decision, you may request judicial review by

filing an action in a Federal district court."). Hence,

because of the MAC’s failure to render a decision, no

Federal Court would ever have subject-matter

jurisdiction over any Medicare claim.

Furthermore, after some minimal research, the

Medicare Appeals Board may have up to a one (1) to

two (2) year backlog on rendering decisions. This

type of delay in the MAC could render your case

beyond the statute of limitation period, thereby

preventing an aggrieved party from seeking judicial

review. Only a ruling by this Court could prevent

this type of nationwide injustice of Medicare claims

by an aggrieved party; especially when the aggrieved

party is not at fault and has followed all of the

necessary steps in the Medicare appeals process.

In addition, the lower courts did not even

consider 45 C.F.R. § 90.50 as a possible solution to

the MAC’s failure to render a decision in a case. 45

C.F.R. § 90.50a(1) states that a civil action may be

filed when the administrative remedies are

exhausted if: "(1) 180 days have elapsed since the

complainant filed the complaint and the agency has

made no finding with regard to the complaint." In

7

the present case, more than (180) days have passed

before filing the original Complaint.

In light of the MAC’s failure to render a finding

on a claim and/or delay in rendering a decision, this

Court should adopt some type of standard or

precedent to prevent injustice caused by the MAC’s

delay or failure to render a decision.

For the reasons discussed above, this Court

should grant the Petition.

CONCLUSION

In view of the foregoing, Petitioner Darrell E.

Williams respectfully asks this Court to grant this

Petition.

Dated: December 9, 2024

Respectfully submitted,

Darrell E. Williams

8010 Woodcreek Drive

Bridgeville, PA 15017

(412) 983-3901

Williamsdew123@gmail.com

Attorney for Petitioner

INDEX OF APPENDICES

APPENDIX A

Opinion of the United States Court of Appeals for the

Third Circuit

Unreported.............................................................1a

APPENDIX B

Opinion of the United States Court for the Western

District of Pennsylvania granting Defendants’

Motions for Summary Judgment

Unreported…………………………………………..10a

APPENDIX C

Order of the United States Court of Appeals for the

Third Circuit Denying Plaintiff’s Motion for

Rehearing and Rehearing En Banc

Unreported...........................................................37a

1a

APPENDIX A

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 23-2190

DARRELL E. WILLIAMS

Appellant,

v.

ALLEGHENY COUNTY, as owner and operator of

John J. Kane Regional Center-SC, DBA Kane Scott

Center; AETNA HEALTH INC; AETNA INC;

AETNA LIFE INSURANCE CO

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2-21-cv-00656)

District Judge: Honorable William S. Stickman, IV

Submitted under Third Circuit L.A.R. 34.1(a)

April 17, 2024

Before: HARDIMAN, SMITH and

FISHER, Circuit Judges

(Filed: August 15, 2024)

2a

OPINION*

FISHER, Circuit Judge.

Darrell E. Williams sued the Kane Scott Center,

as well as the Aetna Life Insurance Company and

related entities, on behalf of the Estate of Ms.

Moneena Williams. He brought a claim against

Kane under 42 U.S.C. § 1983, alleging that Kane

deprived Ms. Williams of her civil rights by violating

the Nursing Home Reform Act (NHRA). He also

brought state-law claims for breach of fiduciary duty,

breach of contract, and breach of good faith and fair

dealing against Aetna, alleging that it wrongfully

terminated Ms. Williams’ coverage for skilled

nursing facility services. The parties filed crossmotions for summary judgment. The District Court

denied Williams’ motion and granted Kane’s and

Aetna’s motions. We will affirm.1

I.

With respect to Williams’ motion for summary

judgment on his claims against Kane and Aetna, he

bears “the initial responsibility of informing the

district court of the basis for [his] motion, and

identifying those portions of [the record] which [he]

believes demonstrate the absence of a genuine issue

*This disposition is not an opinion of the full Court and

pursuant to I.O.P. 5.7 does not constitute binding precedent.

3a

of material fact.”2 Only then is he entitled to

judgment as a matter of law.3 The District Court

held that Williams failed to meet that burden

because his motion and supporting memorandum

contained no citations to the record, did not

distinguish between his claim against Kane and his

claims against the Aetna Defendants, and failed to

cite any “applicable law” or explain why he was

“entitled to judgment as a matter of law” as required

by the Western District of Pennsylvania’s Local

Rules of Court.4 We agree.

On appeal, Williams argues (again without

pointing to any supporting authority) that these

infirmities can be forgiven because he filed a Concise

Statement of Undisputed Facts along with his

motion. But a district court “may not rely solely on

the statement of undisputed facts” when ruling on

summary judgment.5 It is the movant’s job to

1 The District Court had jurisdiction under 28 U.S.C. §

1331 (federal question). This Court has jurisdiction under 28

U.S.C. § 1291 (final decisions of district courts). We exercise

plenary review over an order resolving cross-motions for

summary judgment, and apply the same standard that the

District Court was obligated to apply. Auto-Owners Ins. Co. v.

Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016).

2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

3 Id. at 322 (citing Fed. R. Civ. P. 56(c)).

4 App. 11 (quoting LCvR 56(B)(2)). “App.” citations are to

the Appendix, provided by Williams. “Supp. App.” citations are

to the supplemental appendix, provided by Appellees.

5 Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820

n.8 (3d Cir. 2006) (quoting Vt. Teddy Bear Co. v. 1-800

Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)).

4a

demonstrate why, under applicable law, the relevant

facts entitle him to judgment as a matter of law.

Williams failed to do that here. At most, he raised a

“skeletal argument” which is “nothing more than an

assertion” and does not preserve a claim on summary

judgment.6 The Court correctly denied Williams’

summary judgment motion.7

II.

Williams next argues that the District Court

erred in granting Kane’s motion for summary

judgment. Count I of Williams’ complaint asserts a

claim under § 1983 against Kane, alleging that Kane

deprived Ms. Williams of her civil rights by violating

the NHRA. As the non-moving party, Williams

“must set forth specific facts showing that there is a

genuine issue for trial.”8 Because he did not identify

such facts, we agree with the District Court that

summary judgment in Kane’s favor was appropriate.

6 United States v. Starnes, 583 F.3d 196, 216 (3d Cir.

2009) (citation omitted).

7 Kane correctly points out that the portion of the District

Court’s order denying Williams’ motion for summary judgment

was not included in his notice of appeal. But when from the

“subsequent proceedings on appeal it appears that the appeal

was intended to have been taken from an unspecified judgment

order or part thereof,” we may construe the notice as “bringing

up the unspecified order for review.” Elfman Motors, Inc. v.

Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977).

8 Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)

(quoting Fed. R. Civ. P. 56(e)).

5a

Section 1983 “does not create substantive rights,

but provides a remedy for the violation of rights

created by federal law.”9 So, to avoid summary

judgment, Williams must establish that Ms.

Williams was deprived of a federal right by someone

acting under color of law.10 Because a municipal

government entity (Allegheny County) owns and

operates Kane, Williams further needed to

demonstrate that Kane violated Ms. Williams’ rights

pursuant to its own policy or custom,11 and that such

a policy or custom was the proximate cause of Ms.

Williams’ injuries.12 Williams failed to do so.

The NHRA requires that nursing facilities

maintain records, including the plans of care, for

their residents.13 Williams argues again on appeal

that Kane staff violated Ms. Williams’ NHRA

rights—and Kane’s own policy—by failing to

sufficiently document the wound on Ms. Williams’ leg

between May 24, 2019 and May 28, 2019. But Kane’s

policy only required documentation of a change in the

wound,14 so if it remained unchanged during that

period, no recordkeeping would have been required.

9 Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d

Cir. 1995).

10 Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005).

11 Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990);

see also Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694

(1978).

12 Id.

13 42 U.S.C. § 1396r(b)(6)(C).

14 Supp. App. 242.

6a

It follows that, in order to prove that Kane staff

violated the NHRA, Williams was required to show

that her wound changed during the relevant period.

He failed to do so. Williams relied on an expert who

opined that Ms. Williams’ wound worsened between

May 24 and May 28.15 But this expert was not in Ms.

Williams’ room during that time and did not talk to

the wound care staff members. Williams did not file

depositions, affidavits, or stipulations from Kane’s

wound care team or Ms. Williams’ vascular surgeon.

Because he was unable to point to any firsthand

record evidence demonstrating that the wound

worsened, there is no basis upon which a reasonable

factfinder could conclude that:

(1) Williams

established that Kane violated Ms. Williams’ rights

under the NHRA; or (2) Kane’s conduct was the

proximate cause of Ms. Williams’ injury. We thus

affirm the District Court’s grant of summary

judgment to Kane.

III.

Finally, Williams argues that summary

judgment should not have been granted to Aetna on

Count II (breach of fiduciary duty), Count III (breach

of contract) and Count IV (breach of duty of good

faith and fair dealing). These contentions fare no

better than his previous arguments.

Williams alleged that Aetna breached its

fiduciary duty to Ms. Williams under the Employee

15 Supp. App. 171, 178.

7a

Retirement Income Security Act (“ERISA”).16 ERISA

imposes duties that apply only to employee benefit

programs established or maintained by an

employer.17 Here, Ms. Williams was covered by a

Medicare Advantage PPO plan—not a private plan

maintained by an employer. Williams argues again

on appeal that while Count II sought relief under

ERISA provisions, viewing the complaint and

exhibits holistically should have made clear to the

District Court that he was advancing a Medicare

claim. But Count II only makes an ERISA claim, so

the District Court did not err in granting summary

judgment to Aetna on that claim.

Williams further alleged that Aetna breached its

contractual duty to Ms. Williams and breached the

duty of good faith and fair dealing when it ordered

her moved from a skilled nursing facility to long-term

care. Because these claims “arise under” the

Medicare Act, Williams was required to exhaust all

administrative remedies available under the

Medicare appeals process before bringing suit.18

The District Court held that Williams failed to do so,

and we agree.

16 Williams alleges violations of 29 U.S.C. §§ 1002, 1104,

and 1132, all of which are part of ERISA. See App. 50–51.

17 29 U.S.C. §§ 1002(1), (2).

18 42 U.S.C. § 405(g); Heckler v. Ringer, 466 U.S. 602,

614–15 (1984).

8a

Upon receiving an initial determination on an

application for benefits, a beneficiary must traverse

four levels of administrative review before a district

court has subject-matter jurisdiction to review a

Medicare coverage decision:

(1) a request for

redetermination by a State Quality Improvement

Organization contracted by the Centers for Medicare

Studies (CMS); (2) a reconsideration request to a

Qualified Independent Contractor contracted by

CMS; (3) a hearing before an Administrative Law

Judge for the Office of Health and Medicare Appeals;

and (4) a review by the Medicare Appeals Council.19

Williams exhausted only the first three levels of

administrative review. Though he requested that

the Medicare Appeals Council review his claim,

Williams did not provide the District Court with any

evidence that he received an adverse final decision.

Because

Williams

failed

to

exhaust

all

administrative remedies during the appeals process,

the District Court correctly held that it did not have

subject-matter jurisdiction over his claims for breach

of contract or breach of the duty of good faith and fair

dealing.20

19 See 42 C.F.R. § 405.904(a)(1).

20 The District Court concluded that even if Williams

had properly exhausted these state-law claims, they would

have been preempted by federal law. However, because we

agree that the District Court did not have jurisdiction over

these claims, we decline to reach the issue of preemption.

9a

V.

For the foregoing reasons, we will affirm the

District Court’s ruling.

10a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

DARRELL EUGENE WILLIAMS,

Plaintiff,

v.

Civil Action No. 21-cv-656

ALLEGHENY COUNTY as

owner and operator of John J.

Kane Regional Center-SC doing

business as KANE SCOTT

CENTER, et al,

Defendants.

MEMORANDUM OPINION

WILLIAM, STICKMAN IV, United States

District Judge.

Plaintiff Darrell E. Williams ("Williams")

initiated this action against Defendant Allegheny

County ("Kane") as the owner and operator of John

J. Kane Regional Center-SC, d/b/a Kane Scott

Center and Defendants Aetna Life Insurance

Company ("ALIC"), Aetna Inc., and Aetna Health,

Inc., (collectively, "Aetna") individually and on

behalf of the Estate of Moneena Williams ("M.W.").

Williams brings a claim against Kane under 42

U.S.C. § 1983, alleging that Kane deprived the

decedent of her civil rights by violating the Federal

Nursing

Home

Reform

Act

("FNHRA"),

11a

42 U.S.C. 1396r et. seq., and its implementing

regulations 42 C.P.R. 483 et. seq. (Count I).

Williams also brings claims for Breach of Fiduciary

Duty (Count II), Breach of Contract (Count III), and

Breach of Good Faith and Fair Dealing (Count IV)

against M.W.'s insurance provider, Aetna, alleging

that Aetna wrongfully denied M.W. coverage for

skilled nursing care in May of 2019. Four motions

are presently before the Court: Aetna's Motion to

Strike Plaintiff's Appendix Exhibits B and C (ECF

No. 74); Kane's Motion for Summary Judgment

(ECF No. 54); Aetna's Motion for Summary

Judgment (ECF No. 58); and Williams' Motion for

Summary Judgment (ECF No. 63). For the reasons

set forth below, Williams' Motion for Summary

Judgment (ECF No. 63) will be denied; Kane's

Motion for Summary Judgment (ECF No. 54) will

be granted; and Aetna's Motion for Summary

Judgment (ECF No. 58) will be granted. Aetna's

Motion to Strike Plaintiffs Appendix Exhibits B

and C (ECF No. 74) will be denied as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Williams

is

the

son

and

Personal

Representative of the Estate of M.W., who died on

May 11, 2020. (ECF No. 1, ¶ 3). The John J. Kane

Regional Center is a skilled nursing facility in

Pittsburgh, Pennsylvania that is owned and

operated by Allegheny County. (Id. ¶¶ 4-6). At all

12a

relevant times, M.W. was a member of Aetna

Medicare Plan ("Plan"), a Medicare Advantage PPO

Plan, offered by ALIC. (ECF No. 61-2). Under this

Plan, M.W. was covered by Medicare and received

covered Medicare health care through the Plan. (Id.

at 3). The Plan covered "everything that Original

Medicare cover[ed,]" but did not cover "[s]ervices

considered not reasonable and necessary, according

to the standards of Original Medicare." (Id. at 6, 7).

The Plan required ALIC to "follow Original

Medicare's coverage rules." (Id. at 4).

On April 24, 2019, Dr. Michael Madigan ("Dr.

Madigan") diagnosed M.W. with a ruptured

popliteal aneurysm in her right leg. (ECF No. 55,

¶¶ 1-2); (ECF No. 56-2). At that appointment, Dr.

Madigan discussed his treatment recommendations

and "the possibility of right [a]bove the knee

amputation given that amputation is a high risk for

ruptured aneurysms."

(ECF No. 56-2, p. 2).

Shortly after M.W. received that diagnosis, Kane

requested that M.W. be admitted to its Skilled

Nursing Facility ("SNF") and, the next day, Aetna

approved six days of coverage for M.W.'s stay at

Kane's SNF. (ECF No. 60, ¶¶ 21-22). See also

(ECF Nos. 61-5, 61-6). M.W. was admitted to

Kane’s SNF on May 2, 2019, for rehabilitation of her

ruptured popliteal aneurysm. (ECF No. 55, ¶ 5).

M.W.'s wound was examined by Kane staff on the

day she was admitted, and was measured at 18

centimeters long, 6.5 centimeters wide, and 5

13a

centimeters deep. (ECF No. 56-4, p.2). On May 3,

2019, M.W. was seen by her attending physician,

Dr. Mario Fatigati ("Dr. Fatigati"), who noted that

"[t]he vascular aspects of [M.W.'s] leg are

tenuous[,]" and ordered changes to the treatment

of M.W.'s wound. (ECF No. 56-3, p. 3). See also

(ECF No. 55, ¶ 10).

On May 7, 2019, the day coverage for M.W.'s

stay in the SNF was set to expire, ALIC received a

request from M.W. for continued stay at Kane's

SNF, which it approved through May 14, 2019.

(ECF No. 61-8, p. 2). On that same day, M.W.'s

wound was examined again and measured at 18

centimeters long, 7 centimeters wide, and 8

centimeters deep. (ECF No. 55, ¶ 12); (ECF No. 565). Certified

Registered

Nurse

Practitioner

("CRNP") Karen Zagrocki ("Zagrocki") "issued an

order to discontinue previous treatment to popliteal

area, and to apply Silvadene cream to the wound

after cleaning. The wound vac was to remain in

place." (ECF No. 55, ¶ 11). The next day, M.W.

had a follow up appointment with Zagrocki, who

noted that the wound vac was in place, that the

wound had cellulitis with a possible pseudomonas

infection, and that there was "yellowish, greenish,

tannish drainage to the posterior right thigh

wound." (Id. 13); (ECF No. 56-5, p. 4). Dr. Fatigati

also conducted an examination of M.W.'s wound on

May 8, 2019, during which he noted the presence of

a foul-smelling drainage, indicated that the wound

14a

would be treated with antibiotics, and expressed

concern for the "viability of the leg." (Id. ¶ 14);

(ECF No. 56-5, p. 5). M.W.'s wound was examined

again on May 9, May 10, and May 13, 2019, and

large amounts of discharge was noted. (Id. ¶¶ 1516); (ECF Nos. 56-4, 56-5). On May 14, M.W.'s

wound was measured at 8 centimeters long, 9

centimeters wide, and 0.5 centimeters deep and

Zagrocki issued a series of orders regarding the

treatment of M.W.'s wound, including one

discontinuing the use of Silvadene in favor of

Santyl. (Id. ¶¶ 18-19); (ECF Nos. 56-4, 56-5).

Zagrocki followed up the next day and noted that

M.W. had been fully treated with antibiotics and

that her wound had improved. (Id. 20); (ECF No.

56-5).

On May 16, 2019, M.W. had an appointment at

the office of her vascular surgeon, after which,

CRNP Megan Laughlin ("Laughlin") sent a letter

stating that M.W.'s wounds were "overall looking

good" and providing instructions for M.W.'s continued

treatment. (ECF No. 64, ¶ 8). The letter instructed

M.W.'s caretakers to: continue applying santyl and

prysma to M.W.'s wounds; "[c]ontinue white foam to

all tunneling wounds to anterior knee and calf

wound, covered by black foam@125mm hg

continuous suction[;]" change the wound vac three

times per week; and to continue prysma to left

groin. (Id.). The letter also indicated that M.W. was

scheduled for a follow-up appointment in two weeks

15a

for "likely suture removal." (Id.). Williams attended

the May 16 appointment with M.W. and was told by

Laughlin that M.W. "is not out of the woods" and

that she "could still lose her leg." (ECF No. 56-6, p.

15). Laughlin also told Williams that she was

impressed with how well the Kane SNF nurses were

taking care of M.W.'s wound. (Id.); (ECF No. 69, p.

7).

ALIC approved coverage for SNF services

through May 18, 2019, but also issued a Notice of

Medicare Non-Coverage ("NOMNC"), notifying M.W.

that SNF services would not be covered after May 18,

2019. (ECF No. 60, ¶ 36); (ECF Nos. 61-12, 61-15).

On May 17, 2019, M.W. was discharged from

occupational therapy and physical therapy by Kane

staff. (ECF Nos. 61-13, 61-14).

On May 18, 2019, M.W. was moved from SNF to

Kane's long-term care ("LTC") facility. (ECF No. 55,

¶ 29). Nurse notes from the following day indicate

that M.W.'s vitals were recorded and that she had a

wound vac in place in LTC. (Id. ¶ 31); (ECF No. 564). On May 21, 2019, Kane staff examined M.W.'s

wound, which measured at 10 centimeters long, 3

centimeters wide, and 9.2 centimeters deep. (Id. ¶

32); (ECF No. 56-4). After this examination, a Kane

nurse spoke with the office of M.W.'s vascular

surgeon to alert them of the increased depth of

M.W.'s wound. (Id. ¶ 34). Shortly thereafter, in the

morning of May 21, Laughlin arrived at Kane to

examine M.W.'s wound and advised Kane staff to

continue with the same treatment. (Id. ¶ 35); (ECF

16a

No. 56-4).

Kane nurses checked on M.W. on May 22, 2019,

and again during the early morning of May 23. (Id. ¶

37); (ECF No. 56-4, p. 6). Nurse notes from the

evening of May 23, 2019 indicate that the skin on

M.W.'s lower right leg was warm and dry and that

the wound vac was intact. (Id. ¶ 38). According to

M.W.'s therapy administration records ("TAR"), Kane

staff applied Santyl cream to her wound every day

from May 15, 2019, to May 28, 2019. (ECF No. 64, ¶

35); (ECF No. 56-7, p. 2). Additionally, M.W.'s

wound vac was changed, with white foam placed into

all areas of tunnelling on May 14, 16, 18, 21, 23, and

25, 2019. (Id. ¶ 36); (ECF No. 56-7, p. 3). M.W.

attended her follow up appointment with her

vascular surgeon on May 28, 2019. (ECF No. 55, ¶

42). After examining her wound, the physician had

M.W. transported to UPMC Presbyterian for

debridement, which was scheduled for May 30. (Id.

¶ 43); (ECF No. 69, p. 11). Ultimately, M.W.'s right

leg was amputated at UPMC-Presbyterian in early

June of 2019. (Id. ¶ 44); (ECF No. 64, ¶ 37).

B. Administrative Proceedings

After receiving the NOMNC from ALIC on May

16, 2019, M.W. appealed to the state Quality

Improvement Organization ("QIO"), Livanta LLC.

(ECF No. 64, 10). On May 17, 2019, after being

verbally notified that the QIO affirmed ALIC's

decision of noncoverage, M.W. submitted a request

17a

for an expedited reconsideration by C2 Innovative

Solutions, the Qualified Independent Contractor

("QIC"). (Id. ¶ 12). On May 22, 2019, the QIC issued

a decision upholding the denial of coverage,

explaining that, based on the medical record,

"Medicare criteria for coverage of the skilled services

at issue ha[d] not been satisfied." (ECF No. 61-18, p.

4). M.W. filed a timely request for review with the

office of Medicare Hearings and Appeals ("OMHA").

See (ECF No. 61-16). In August of 2019, a hearing

with the Administrative Law Judge ("ALJ") was held

and, on September 9, 2019, the ALJ issued a decision

upholding ALIC’s termination of coverage because

M.W. "no longer needed and did not receive a covered

level of [SNF] care after the termination of Medicare

coverage on May 18, 2019." (Id. at 10); (ECF No. 64,

18). M.W. filed a Request for Review of the ALJ

Decision with the Medicare Appeals Council

("MAC"), dated November 1, 2019. (ECF No. 60, ¶

71); (ECF No. 1-3, p. 2). Sometime in December of

2019 or January of 2020, M.W. received an

Acknowledgment of Request for Review from the

Departmental Appeals Board, stating that "it may be

several months before the Medicare Appeals Council

can act on your request for review." (ECF No. 61-19,

p. 2). Beyond this Acknowledgement of Request for

Review, Williams has not received a decision or any

other communications from the MAC. (ECF No. 661, p. 152); (ECF No. 71, p. 24). M.W. died on May 11,

2020, and, on May 18, 2021, Williams initiated this

action individually and on behalf of M.W.'s Estate.

(ECF No. 1, ¶ 3).

18a

II. LEGAL STANDARD

Summary judgment is warranted if the Court is

satisfied that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). A fact is material if it must be decided to

resolve the substantive claim or defense to which the

motion is directed. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242,248 (1986). A genuine dispute of

material fact exists "if the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party." Id. The Court must view the

evidence presented in the light most favorable to the

nonmoving party. Id. at 255. It refrains from

making credibility determinations or weighing the

evidence. Id. "[R]eal questions about credibility,

gaps in the evidence, and doubts as to the sufficiency

of the movant's proof' will defeat a motion for

summary judgment. El v. Se. Pa. Transp. Auth., 479

F.3d 232,238 (3d Cir. 2007). "When both parties

move for summary judgment, '[t]he court must rule

on each party's motion on an individual and separate

basis, determining for each side whether a judgment

may be entered in accordance with the Rule 56

standard."' Auto- Owners Ins. Co. v. Stevens & Ricci

Inc., 835 F.3d 388, 402 (3d Cir. 2016) (quoting l0A

CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 2720 (3d ed.

2016)).

19a

III. Analysis

A. Williams' Motion for Summary Judgment

(ECF No. 63).

Williams moves for summary judgment on his

claim against Kane (Count I) and his three claims

against Aetna (Counts II-IV). (ECF No. 63). In

support of his motion for summary judgment,

Williams claims that M.W. received a lower level of

wound care in the LTC, and that "[m]onitoring and

assessment of [M.W.'s] wound was discontinued after

May 23, 2019, and therefore 'daily' wound care

services did not occur according to the Vascular

surgeon's order; nor to Kane's wound care policy or

the FNHRA's requirements." (Id. at 3). From this,

Williams surmises that "the only issue that remains

is whether a right leg above knee amputation of

[M.W.] following [M.W.'s] follow-up appointment

dated May 28, 2019 would be considered a decline in

her wound." (Id.). Williams then concludes that the

amputation of M.W.'s leg "would be considered a

decline in her wound." (Id.).

As the moving party, Williams bears the burden

of showing that these facts "cannot be genuinely

disputed by citing to particular parts of materials in

the record--i.e., depositions, documents, affidavits,

stipulations, or other materials[.]" Mosaka-Wright v.

LaRoche Coll., No. 11 CV 1139, 2012 WL 3060151, at

*2 (W.D. Pa. July 25, 2012), aff'd sub nom. MosakaWright v. La Roche Coll., 523 F. App'x 886

20a

(3d Cir. 2013). Williams provides no support for any

of his factual assertions. In fact, his motion and

supporting memorandum contain no citations to the

record. Thus, Williams has failed to establish that

any of his factual claims are undisputed based on the

record. The Court "will not scour the record where

movant has not cited it to see if the record might

relate in some way to what he might be driving at[.]"

United States v. Grados, No. 2:16-CR-57-KRG-KAP,

2021 WL 231373, at *3 (W.D. Pa. Jan. 4, 2021).

Williams' motion and supporting memorandum

also fail to "address applicable law" and explain why

he "is entitled to judgment as a matter of law" as

required by the Local Rules of the United States

District Court for the Western District of

Pennsylvania. LCvR 56(B)(2). Williams does not

distinguish between his claim against Kane and his

claims against the Aetna Defendants. He does not

specify which facts (or what legal arguments)

support each specific claim. In fact, Williams fails to

discuss any of the individual claims or the essential

elements of those claims. He fails to cite any of the

relevant statutes, regulations, or case law and makes

no attempt to apply the governing law to the facts in

the record. Williams' motion for summary judgment

utterly fails to establish that the facts put forth are

undisputed or to explain why he is entitled to

judgment as a matter of law.

Given these

deficiencies, Williams' motion for summary judgment

(ECF No. 63) will be denied. Aetna's Motion to

Strike Plaintiff's Appendix Exhibits B and C (ECF

21a

No. 74) will be denied as moot.

B. Kane's Motion for Summary Judgment

(ECF No. 54)

At Count I of the Complaint, Williams brings a

claim against Kane under 42 U.S.C. § 1983 ("Section

1983" or "1983").1 (ECF No. 1). "A prima facie case

under § 1983 requires a plaintiff to demonstrate: (1)

a person deprived him of a federal right; and (2) the

person who deprived him of that right acted under

color of state or territorial law." Groman v. Twp. of

Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Kane

does not "dispute that the alleged actions were under

color of state law." (ECF No. 57, p. 5). Williams

claims that Kane deprived M.W. of her civil rights by

violating the FNHRA. To establish a 1983 claim

against Kane, Williams must not only show that

M.W.'s rights were violated by a Kane employee; but

that the violation of M.W.'s rights was "caused by

action taken pursuant to a municipal policy or

custom." Robinson v. Fair Acres Geriatric Ctr., 722

F. App'x 194, 198 (3d Cir. 2018). Williams must also

show that the municipal policy or custom "was the

proximate cause of the injuries suffered." Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).

____________________

1 Despite being titled as a claim for negligence (See ECF No. 1, p.

12), "Count I of the Complaint asserts a § 1983 claim, not

negligence." (ECF No. 68, p. 5).

22a

Kane moves for summary judgment on Williams'

1983 claim (ECF No. 54), arguing that Williams

cannot establish that a Kane employee violated

M.W.'s FNHRA rights, and, even if the evidence

created a question of fact regarding whether an

employee violated M.W.'s FNHRA rights, "the claim

would still fail because no violation was caused by

Kane policies." (ECF No. 57, p. 10).

Under the FNHRA, nursing facilities must

"maintain clinical records on all residents, which

records include the plans of care ... and the residents'

assessments ... as well as the results of any preadmission screening[.]" 42 U.S.C. § 1396r (b)(6)(C).

Williams claims that Kane nurses violated M.W.'s

FNHRA rights by failing to sufficiently document

and monitor M.W.'s wound from May 24, 2019, to

May 28, 2019, the day M.W. was transported to

UPMC Presbyterian Hospital for amputation. (ECF

No. 68, pp. 6-7). Williams bases this claim on a gap

in Kane's General Progress Notes ("GPN") for M.W.'s

wound from May 24, 2019, to May 28, 2019 (ECF No.

56-4), arguing that the gap shows that "daily wound

care services did not occur according to the Vascular

surgeon's order; nor to Kane's wound care policy or

the FNHRA's requirements[]" on those dates. (ECF

No. 68, p. 4) (cleaned up).

Despite a lack of notes in the GPN on these

dates, Kane still maintained a TAR, which indicates

that a Kane employee approved and documented the

cleaning and treatment of M.W.'s wound in

23a

accordance with the vascular surgeon's most recent

instructions every day from May 22, 2019 to May 28,

2019. (ECF No. 56-7). As Williams points out,

however, Kane's own wound care policies and the

FNHRA, in certain circumstances, require more than

documenting the cleaning and treatment provided.

Kane's wound care policy requires staff to "[m]onitor

and document progress of the wound in the GPN and

notify physician promptly if wound should appear

more acute or worsen." (ECF No. 56-13, p. 3). Under

the FNHRA, Kane is required to maintain clinical

records of "the residents' assessments[.]" 42 U.S.C. §

1396r (b)(6)(C). A gap in the GPN does not

necessarily mean that the FNHRA or Kane's wound

care policy have been violated. If the status of

M.W.'s wound stayed the same from May 24, 2019, to

May 28, 2019, the gap in the GPN would not violate

Kane's wound care policy; the policy would only be

violated if Kane staff failed to document progress or

to report deterioration. Under the FNHRA, Kane

was required to update M.W.'s clinical records with

any change to the assessment of M.W.'s wound, but,

if there was no change to the assessment of M.W.'s

wound, no action would be required to maintain

M.W.'s clinical records. Thus, to show that Kane

staff violated the FNHRA, Williams must establish

that the condition of M.W.'s wound changed from

May 24 to May 28.

24a

In an attempt to do so, Williams relies on the

expert testimony of Beverley Williams ("Beverley"),2

who claims that M.W.'s wound had gotten worse

between May 23, 2019, and May 28, 2019. (ECF No.

56-12, pp. 27, 34). As Kane points out, however,

Beverley was unable to explain the basis for her

assertion that there was a "huge difference" in

M.W.'s wound from May 24, 2019, to May 28, 2019.

She testified that she was not in M.W.'s room when

wound care services were provided on the days in

question, she has not spoken with the staff members

who provided those services, and she could not offer

an opinion on the size of M.W.'s wound when it was

examined by the vascular surgeon on May 28, 2019.

(Id.). She further testified that she only reviewed the

medical records contained in Kane's chart and that

she did not review any of the medical records from

M.W.'s vascular surgeon. (Id. at 11, 28). Nothing in

the record-beyond Beverley's assertion--supports the

notion that the condition of M.W.'s wound worsened

from May 24 to May 28.

Williams argues that Kane cannot use the lack

of any documented change in M.W.'s wound status

from May 24 to May 28 as evidence that the wound

did not worsen in that time. To do so, Williams

argues, would be to reward Kane for the very "gap"

in medical records that forms the crux of Williams'

claim against Kane. While true, Williams still bears

_______________________

2 Beverley Williams is the wife of Plaintiff Darrell Williams. See

(ECF No. 56-12, p. 8).

25a

the ultimate burden of establishing that Kane

violated M.W.'s FNHRA rights and could have

satisfied that burden through expert witnesses,

depositions, or by citing to relevant medical records.

Outside of the testimony of Beverley--who was not

with M.W. for the days in question, had not spoken

to the Kane staff or the vascular surgeon who treated

M.W., and had not reviewed any of the vascular

surgeon's records--Williams provides no such

evidence. He did not depose the Kane staff who

treated M.W. on the dates in question or the vascular

surgeon

who

ultimately

performed

M.W.'s

amputation. Given the lack of evidence that the

condition of M.W. 's wound changed during this

period, Williams has failed to establish that the fiveday gap in Kane's GPN was a violation of Kane's

internal wound care policies or the FNHRA.

Even if Williams could show that a Kane

employee violated M.W.'s FNHRA rights, he has still

failed to show that the violation was "caused by

action taken pursuant to a municipal policy or

custom." Robinson, 722 F. App'x at 198. Williams

argues that the violation of M.W.'s FNHRA rights

"was caused by the Kane's 'custom' of repeated

failure of the LTC nurses to document wound

status[.]" (ECF No. 68, p. 9). In the § 1983 context,

customs "include only 'practices of state officials ... so

permanent and well settled as to constitute a custom

or usage with the force of law."' Robinson, 722 F.

App'x at 198 (quoting Monell v. Dep't of Social Servs.,

436 U.S. 658, 691 (1978)). Even if Kane staffs failure

26a

to document any changes to M.W.'s wound status in

the GPN for five days was a violation of M.W.'s

FNHRA rights, there is nothing in the record to

indicate that Kane nurses failing to document wound

status is "permanent" and "well settled." A lack of

notes in M.W.'s GPN for five days is not sufficient

evidence to establish that Kane nurses' failure to

document wound status was "so permanent and well

settled as to constitute a custom or usage with the

force of law." Monell, 436 U.S. at 691.

Even if Williams could establish that Kane

nurses engaged in a custom of failing to document

wound status, he has also failed to show causation.

Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir.

2000) ("Once a§ 1983 plaintiff identifies a municipal

policy or custom, he must demonstrate that, through

its deliberate conduct, the municipality was the

'moving force' behind the injury alleged." (internal

quotations omitted)). Williams' causation argumentthat "Kane's LTC wound care practice was the

proximate cause of M.W.'s injuries suffered[]"-is

based only Beverly's opinion that, had M.W.'s wound

been more closely monitored between May 23, 2019,

and May 28, 2019, amputation of M.W.'s leg may

have been avoidable. (ECF No. 68, p. 7); (ECF No.

56-12, pp. 27, 34). Here again, Beverley was unable

to establish the basis for this opinion and Williams is

unable to point to any other evidence to establish

causation.

27a

In certain circumstances, causation can be

established by "demonstrat[ing] that the municipal

action was taken with 'deliberate indifference' as to

its known or obvious consequences."

Board of

County Comm'rs of Bryan County v. Brown, 520 U.S.

397,404 (1997).

To show that a municipality's

actions constitute "deliberate indifference" under §

1983, "it must be shown that (1) municipal

policymakers know that employees will confront a

particular situation; (2) the situation involves a

difficult choice or a history of employees

mishandling; and (3) the wrong choice by an

employee will frequently cause deprivation of

constitutional rights." Carter v. City of Philadelphia,

181 F.3d 339, 357 (3d Cir. 1999) (footnote omitted).

Failure to train, monitor, or supervise employees can

"be considered deliberate indifference...where the

failure has caused a pattern of violations." Berg, 219

F.3d at 276. Even if Williams could show that Kane

staff violated M.W.'s rights and that those violations

were caused by Kane's failure to properly train or

monitor nurses who were responsible for

documenting M.W.'s wound status, he presents no

evidence to show that the failure caused a pattern of

violations. Other than the five-day gap in M.W.'s

GPN, Williams does not allege any violations by

Kane, let alone a "pattern of violations."

Additionally, nothing in the record indicates that

Kane nurses' documentation of wound status

involved a difficult choice, a history of being

mishandled, or a "pattern of violations."

28a

Williams has failed to show that Kane's five-day

gap in M.W.'s GPN constituted a violation of M.W.'s

FNHRA rights. Even if he had done so, Williams

also failed to establish causation or that any

violation was caused by a Kane policy or custom.

Kane's motion for summary judgment (ECF No. 54)

will be granted.

B. Aetna's Motion for Summary Judgment

(ECF No. 58)

Aetna moves for summary judgment on the

claims against it for breach of fiduciary duty (Count

II), breach of contract (Count III), and breach of good

faith and fair dealing (Count IV). (ECF No. 58).

1. Count II: Breach of Fiduciary Duty

Williams claims that Kane violated its fiduciary

duty under the Employee Retirement Income

Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.

(Count II). (ECF No. 1, ¶¶ 67, 71). ERISA-and the

duties it imposes on fiduciaries-only applies to

employee benefit plans, which, according to the

statute's definition, must be "established or

maintained by an employer or by an employee

organization, or by both[.]" 29 U.S.C. §§ 1002(1), (2).

M.W.'s plan was not established or maintained by an

employer or employee organization. Rather, M.W.

was a member of a Medicare Advantage PPO Plan

offered by Aetna. (ECF No. 61-2); (ECF No. 1, ¶ 20).

The Plan explicitly stated that it was "a Medicare

29a

Advantage PPO Plan[.]" (ECF No. 61-2, p. 3).

Because Aetna's coverage of M.W. was not an

employer health plan governed by ERISA, Williams

cannot pursue a claim for breach of fiduciary duty

under ERISA.

In his response to Aetna's motion for summary

judgment, Williams attempts to shift the allegation

by arguing that "[i]n view of the entirety of the

Complaint, Count II of the Complaint alleges that

Aetna breach[ed] its fiduciary duty under the

Medicare laws, rules, and guidelines on coverage for

SNF services." (ECF No. 70, p. 5). However, the

Complaint explicitly alleges that Aetna "is a

fiduciary of the Plan within the meaning of [ERISA]"

and that he is "entitled to relief under [ERISA]."

(ECF No. 1, ¶¶ 67, 71). Nothing in the Complaint

indicates that Williams intended to assert his breach

of fiduciary duty claim under "the Medicare laws"

and Williams "may not expand his claims to assert

new theories for the first time in response to a

summary judgment motion." Ward v. Noonan, 147

F. Supp. 3d 262, 280 n.17 (M.D. Pa. 2015). As such,

the Court construes Williams' breach of fiduciary

duty claim as being brought pursuant to ERISA.

Because the Plan at issue is not governed by ERISA,

Aetna's motion for summary judgment (ECF No. 58)

will be granted as it relates to Williams' claim for

breach of fiduciary duty (Count II).

30a

2. Counts III & IV: Breach of Contract and Breach

of Good Faith and Fair Dealing

a. Exhaustion of Administrative Remedies

Williams also brings claims against Aetna for

breach of contract (Count III) and breach of good

faith and fair dealing (Count IV). Aetna first argues

that both claims should be dismissed at summary

judgment because M.W. failed to exhaust the

administrative remedies available under the

Medicare appeals process. "Title 42 U.S.C. § 405(h),

... makes § 405(g) the sole avenue for judicial review

of all 'claim[s] arising under"' 42 U.S.C. § 1395 et seq.

("Medicare Act"). Heckler v. Ringer, 466 U.S. 602,

602 (1984). See also Shalala v. Illinois Council on

Long Term Care, Inc., 529 U.S. 1, 13 (2000) (Section

405(h) "demands the 'channeling' of virtually all legal

attacks through the agency[.]"). A claim "arises

under" the Medicare Act if "'both the standing and

the substantive basis for the presentation' of the

claims is the Medicare Act[,]" or if the claim is

"inextricably intertwined" with a claim for Medicare

benefits. In re Univ. Med. Ctr., 973 F.2d 1065, 1073

(3d Cir. 1992) (quoting Heckler, 466 U.S. at 615).

Williams' claims against Aetna are based on the

allegation that Aetna wrongfully denied M.W.

Medicare coverage for her to stay at Kane's SNF

facility after May 18, 2019. There is no dispute that

these claims "arise under" the Medicare Act. See

(ECF No. 70, p. 6) ("The Plaintiffs claims are

governed by the Medicare rules and regulations[.]").

31a

Under § 405(g), a plaintiff may bring a claim

"arising under" the Medicare Act in district court

only after he "has pressed the claim through all

designated levels of administrative review[]"and has

been given a "final decision" from the Secretary of

Health and Human Services. Heckler, 466 U.S. at

606. See also Kopstein v. Indep. Blue Cross, 339 F.

App'x 261, 264 (3d Cir. 2009) ("A final agency ruling

is ... 'central to the requisite grant of subject-matter

jurisdiction' under the Medicare Act."). After the

Medicare insurer "makes an initial determination on

an application for Medicare benefits and/or

entitlement of an individual to receive Medicare

benefits[,]" there are four levels of administrative

review that must be exhausted before a plaintiff is

entitled to judicial review. 42 C.P.R. § 405.904(a)(l).

First, if the enrollee is not satisfied with the initial

determination,

he

may

request—and

"[t]he

organization shall provide"--reconsideration by a QIO

contracted by the Centers for Medicare Studies

("CMS"). 42 U.S.C. § 1395w-22(g)(2)(A). See also id.

Next, "[r]econsiderations that affirm a denial of

coverage, in whole or in part[,]" are reviewed by QIC.

Id. § 1395w-22(g)(4).

If the enrollee remains

unsatisfied after this review by the QIC, the third

level of administrative review requires him to

request a hearing before an ALJ. 42 C.P.R. §

405.904(a)(l). As the final step, "[i]f the beneficiary

obtains a hearing before an ALJ and is dissatisfied

with the decision of the ALJ, or if the beneficiary

requests a hearing and no hearing is conducted," he

may request a review from the MAC. Id. §§ 422.608,

405.904(a)(l).

32a

There is no dispute that M.W. exhausted the

first three levels of administrative review. After

being informed of Aetna's initial determination that

she was not covered to stay in Kane's SNF after May

18, 2019, M.W. appealed to the QIO, which affirmed

Aetna's initial determination of noncoverage. (ECF

No. 64, ¶ 10); (ECF No. 1, ¶ 31). M.W. then

submitted a request for an expedited reconsideration

by the QIC, C2 Innovative Solutions. (ECF No. 1-2,

p. 7). When the QIC returned an unfavorable

decision to M.W., she filed a timely request for

review with the OMHA and participated in a hearing

in front of the ALJ in August of 2019. After receiving

an unsatisfactory decision from the ALJ, M.W. filed a

Request for Review of the ALJ Decision with the

MAC, dated November 1, 2019. (ECF No. 1-3, p. 2);

(ECF No. 1, ¶ 49); (ECF No. 60, ¶ 71). Sometime in

December of 2019 or January of 2020, M.W. received

an Acknowledgment of Request for Review from the

Departmental Appeals Board, stating that "it may be

several months before the Medicare Appeals Council

can act on your request for review." (ECF No. 61-19,

p. 2).

Williams claims that "[t]here are no November,

2019 appeals still pending in the MAC," but provides

no evidence that M.W. received a final decision from

the MAC. (ECF No. 70, p. 6). Williams testified

that, as of January 26, 2023, he had not received a

decision on the appeal filed with the MAC. (ECF No.

66-1, pp. 152-53). He further testified that, aside

from the Acknowledgement of Request for Review, he

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has not received anything from the MAC. (Id. at

152). As M.W.'s representative, Williams could have

requested judicial escalation from the MAC if no

decision was rendered 90 calendar days after M.W.

filed her Request for Review. 42 C.P.R. § 405.1132.

Williams admits that he has not done so; nor has he

had any other communications with the MAC. (ECF

No. 66-1, pp. 152-53). A plaintiff is entitled to

judicial review only after they have received an

adverse final decision. See 20 C.P.R. § 404.900 ("If

you are dissatisfied with our final decision, you may

request judicial review by filing an action in a

Federal district court."). Given this, and because

there is no evidence that Williams or M.W. received a

final decision from the MAC, he has failed to

establish that he or M.W. exhausted each step of the

administrative review process.

b. Preemption

Even if Williams had received a final decision

from the MAC, his breach of contract and breach of

good faith and fair dealing claims are preempted by

the Medicare Act. Congress can displace state law

where preemption is the "clear and manifest purpose

of Congress." Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947). The Medicare Act contains an

express preemption provision, which says that "[t]he

standards established under this part shall

supersede any State law or regulation (other than

State licensing laws or State laws relating to plan

solvency) with respect to MA plans which are offered

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by MA organizations under this part." 42 U.S.C. §

1395w-26(b)(3).

The existence of this clause,

however, "does not immediately end the inquiry

because the question of the substance and scope of

Congress' displacement of state law still remains."

Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008).

Here, the Court must determine whether the

Medicare Act's preemption provision preempts state

common law claims; namely, claims for breach of

contract and breach of good faith and fair dealing.

The language "any State law or regulation"-with

no qualifying provisions-reflects an intent to include

common law claims. See Fleckv. KDI Sylvan Pools

Inc., 981 F.2d 107, 115 (3d Cir. 1992) ("The word

'any' is generally used in the sense of 'all' or 'every'

and its meaning is most comprehensive."). This does

not mean, however, that the Medicare Act preempts

all state common law claims; only those that are

inconsistent with "the standards established" by the

Medicare Act. 42 U.S.C. § 1395w-26(b)(3). As

Williams acknowledges, his breach of contract and

breach of good faith and fair dealing claims are

premised on the allegation that Aetna wrongfully

denied M.W. specific coverage under the Medicare

regulations and guidelines. See (ECF No. 70, p. 6)

("The Plaintiffs claims are governed by the Medicare

rules and regulations[.]"). Williams does not claim

that Aetna was subject to any contractual obligations

beyond its obligation to comply with the Medicare

Act. At their core, Williams' breach of contract and

breach of good faith and fair dealing claims are

35a

coverage disputes. The Medicare regulations and the

CMS Medicare Benefit Policy Manual establish the

standards for Medicare coverage of SNF services.

See 42 C.P.R. § 409.31; (ECF No. 61-4).

The

Medicare Act's administrative appeal process is the

exclusive avenue for resolving "disputes involving a

covered individual's dissatisfaction with a Medicare

decision[.]" Wilson v. Chestnut Hill Healthcare, No.

CIV.A. 99-CV-1468, 2000 WL 204368, at *3 (E.D. Pa.

Feb. 22, 2000).

At the conclusion of that

administrative appeal process, Williams would have

been entitled to seek judicial review under 42 U.S.C.

§ 405(g). He cannot, however, assert a "breach of

contract claim [as] a backdoor attempt to enforce the

Act's requirements and to secure a remedy for

[Aetna's] alleged failure to provide [coverage]." Do

Sung Uhm v. Humana, Inc., 620 F.3d 1134, 1143

(9th Cir. 2010).

Because Williams has not established that he

exhausted all available administrative remedies, the

Court does not have valid subject-matter jurisdiction

over his breach of contract (Count III) and breach of

good faith and fair dealing (Count IV) claims. Even

if Williams did exhaust the available administrative

remedies, both claims are preempted by the

Medicare Act.

Aetna's motion for summary

judgment (ECF No. 58) will be granted. The Court

need not address the issue of whether Aetna Inc. or

Aetna Health Inc. are proper parties to this action.

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IV. CONCLUSION

For the reasons set forth above, Williams'

Motion for Summary Judgment (ECF No. 63) will be

denied; Kane's Motion for Summary Judgment (ECF

No. 54) will be granted; and Aetna's Motion for

Summary Judgment (ECF No. 58) will be granted.

Aetna's Motion to Strike Plaintiffs Appendix Exhibits

B and C (ECF No. 74) will be denied as moot. Orders

of Court will follow.

Dated: 6-28-23

BY THE COURT:

/s/ William S. Stickman IV

WILLIAM S. STICKMAN IV

United States District Judge

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APPENDIX C

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 23-2190

DARRELL E. WILLIAMS

Appellant,

v.

ALLEGHENY COUNTY, as owner and operator of

John J. Kane Regional Center-SC, DBA Kane Scott

Center; AETNA HEALTH INC; AETNA INC;

AETNA LIFE INSURANCE CO

(W.D. Pa No.: 2-21-cv-00656)

Present: CHAGARES, Chief Judge, HARDIMAN,

SHWARTZ, RESTREPO, BIBAS, PORTER, MATEY,

PHIPPS, FREEMAN, MONTGOMERY-REEVES,

CHUNG, SMITH and FISHER*, Circuit Judges

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

___________________________

*Judges Smith and Fisher’s votes are limited to panel

rehearing only.

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The petition for rehearing filed by Appellant,

Darrell E. Williams, in the above-entitled case

having been submitted to the judges who

participated in the decision of this Court and to all

the other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a

majority of the judges of the circuit in regular service

not having voted for rehearing, the petition for

rehearing by the panel and the Court en banc, is

denied.

BY THE COURT:

s/ D. Michael Fisher

Circuit Judge

Dated: September 11, 2024

Lmr/cc: All Counsel of Record