Petition for Writ of Certiorari — Lifestar Ambulance Service, Inc. v. United States

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No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

LIFESTAR AMBULANCE SERVICE, INC., et al.,

; Petitioners,

UNITED STATES OF AMERICA, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES E. BUTLER, JR. MARLAN B. WILBANKS

Counsel of Record HARMON, SMITH, BRIDGES

JASON L. CRAWFORD & WILBANKS -

J. CLAY FULLER 1795 Peachtree Road, N.E.

DUSTIN T. BROWN Suite 350

BUTLER, WOOTEN, FRYHOFER, Atlanta, Georgia 30309

DAUGHTERY & CRAWFORD (404) 881-1200

105 Thirteenth Street

. JONATHAN H. WALLER

Columbus, Georgia 31901

(706) 322-1990 CAMPBELL, WALLER & POER

2100-A SouthBridge Pkwy.

G. CHRISTOPHER KELLY Suite 450

1795 Peachtree Road, N.E. Birmingham, Alabama

Suite 350 35209

Atlanta, Georgia 30309 (205) 803-0051

(404) 881-1200

September 24, 2004 Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Eleventh Circuit’s decision forecloses

mandamus jurisdiction for all claims arising under the

Medicare Act by effectively ruling that no claim arising

under the Medicare Act will ever meet the test for man-

damus jurisdiction, thus conflicting with the nine other

circuits that had addressed this issue and uniformly

agreed that the jurisdiction-limiting provision of the

Medicare Act, 42 U.S.C. § 405(h), does not bar considera-

tion of whether mandamus jurisdiction lies pursuant to 28

U.S.C. § 1361.

2. Whether the jurisdictional provision in the Medi-

care Act, 42 U.S.C. § 405(h), forecloses the exercise of

mandamus jurisdiction pursuant to 28 U.S.C. § 1361 for

claims arising under the Medicare Act.

LIST OF ALL PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioners Lifestar Ambulance Service, Inc., indi-

vidually and on behalf of a class of all entities similarly

situated; Coastal Medical Transport, Inc., individually and

on behalf of a class of all entities similarly situated; and

Ambulance Services, Inc., individually and on behalf of a

class of all entities similarly situated were plaintiffs and

appellees in the proceedings below.

Respondents United States of America; the Depart-

ment of Health and Human Services; Tommy Thompson in

his official capacity as Secretary/Director of the D.H.HS.;

the Health Care Financing Administration (Centers for

Medicare & Medicaid Services); and Thomas A. Scully, in -

his official capacity as Secretary/Director of the H.C.F.A./

C.M.S. were defendants and appellants in the proceedings

below.

Pursuant to Supreme Court Rule 29.6, Petitioners

state as follows: Lifestar Ambulance Services, Inc. is a

Georgia corporation, and there is no parent or publicly

held company owning 10% or more of such corporation’s

stock. Coastal Medical Transport, Inc. is a North Carolina

corporation, and there is no parent or publicly held com-

pany owning 10% or more of such corporation’s stock.

Ambulance Services, Inc. is a Tennessee corporation, and

there is no parent or publicly held company owning 10% or

more of such corporation’s stock.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..............

LIST OF ALL PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT.........

I civicviiccetrssininsnesvnnssessensenaresoese

CITATIONS OF REPORTS OF OPINIONS ENTERED

INE MI ied ganneisabibsianschosisdhssiskadntinceceatborbincies

BASIS FOR SUPREME COURT JURISDICTION ....

STATUTES AND REGULATIONS INVOLVED IN

PINE sieht sthninyessdehprovesonesssebsnciiscsannsmigatzsivecens

SUMMARY OF THE REASONS FOR GRANTING

EI iis sk sbibershiicknss oabicesavscilaber ccsuinbsovave snare

I. THE OPINION OF THE ELEVENTH CIR-

CUIT CONFLICTS WITH THE PREVI-

OUSLY UNFRACTURED CONSENSUS OF

NINE OTHER CIRCUITS THAT HAVE AD-

DRESSED WHETHER 42 U.S.C. § 405(h)

FORECLOSES MANDAMUS _ JURISDIC-

SE bcc tilgehaiiassidvestvcilincsnssenniossinnadsisssvess

Il. THE ELEVENTH CIRCUITS OPINION

LOSES THE CRITICAL DISTINCTION BE-

TWEEN MANDAMUS JURISDICTION AND

FEDERAL QUESTION JURISDICTION

AND MISAPPLIES THIS COURT’S HOLD-

ING IN SHALALA V. ILLINOIS COUNCIL

ON LONG TERM CARE, INC., 529 U.S. 1

SI UNE tach esUaseiichdsesdvatadenseisnudssensecsssooces

TABLE OF CONTENTS - Continued

: Page

III. PETITIONERS HAVE NO OTHER ADE-

QUATE REMEDY ........... nagtndithinasaptivbhtiibbbieabes 18

IV. THE OPINION ATTEMPTS TO AVOID A

CIRCUIT SPLIT BY ASSUMING MANDA-

MUS JURISDICTION CAN EXIST IN

MEDICARE CASES BUT INSTEAD COM-

PLETELY FORECLOSES MANDAMUS JU- .

RISDICTION IN SUCH CASES.............0....000. 22

V. THE COURT OF APPEALS MISUNDER-

STOOD THE HOLDING OF THIS COURT

IN HECKLER V. RINGER, 466 U.S. 602

FOE) ticncctenminainéniomianghokaitcksios 26

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Belles v. Schweiker, 720 F.2d 509 (8th Cir. 1983)............ 23

Burnett v. Bowen, 830 F.2d 731 (7th Cir. 1987)............... 23

Briggs v. Sullivan, 886 F.2d 1132 (9th Cir. 1989)............ 23

Califano v. Yamasaki, 442 U.S. 682 (1979) ............ccccceeeee 14

Cash v. Barnhart, 327 F.3d 1252 (11th Cir.

| REP EAREERTIR et tacts see Are ad a oa 8, 17, 18, 20

City of New York v. Heckler, 742 F.2d 729 (2d Cir.

BE iii hcisniinsksinds ieadievssiahadendnbdaiasakatinaeks aiduaiicbe 23

Colonial Penn Ins. Co. v. Heckler, 721 F.2d 431 (3d

a» NALS RE ROS WatripcpennetsereaSe ree Lap TE RSE 23

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981)....... 11, 15, 17, 23

Ganem v. Heckler, 746 F.2d 844 (D.C. Cir. 1984) .. 11, 17, 23

Heckler v. Ringer, 466 U.S. 602 (1984) ........cciccecseeseee passim

In re Bethesda Mem’ Hosp., Inc., 123 F.3d 1407

GN PES ASE Rae RE ON On MN eee Oe OR IES 6

Lifestar Ambulance Serv., Inc. v. United States, 365

F.3d 1293 (11th Cir. April 16, 2004)... eee 1

Lifestar Ambulance Serv., Inc. v. United States, 211

F.R.D. 688 (M.D. Ga. Jan. 16, 2003) .000.....4......cccccceeeeeeeee 1

Mathews v. Eldridge, 424 U.S. 319 (1976)..................00000- 14

Monmouth Med. Ctr. v. Thompson, 257 F.3d 807

Ces Ms TIPE Piasdisasincldarcitaccsswucsicdiciinsd otece 11, 15, 17, 28

Nat'l Wildlife Fed’n v. United States, 626 F.2d 917

bE RR. TSRESE RS SER AS Oe Ce 21

TABLE OF AUTHORITIES — Continued

Page

Shalala v. Ill. Council on Long Term Care, Inc., 529

TF Sie % PND Kacisak ines echassibihinintigihisdiaiiianSetbinatondetiians passim

Weinberger v. Salfi, 422 U.S. 749 (1975) ........cceseccscseeeeeee 23

Your Home Visiting Nursing Servs., Inc. v. Shalala,

SEE lst. SU LE secnivacianiietessiahensmntilocniiiawibinmastaceca 14

FEDERAL STATUTES AND REGULATIONS

Be SF IBAS BD BG Pisesicesisniecip cntanghdtgeaseadaobidataaaia 1

BS 1 8e b: : RRCRMNrER DTM Ee, 11, 13, 16

BB UTS. SD DIR tissisisccssitdia icine 13

BUFR Aiss 0 RE So tvvcseiascosevctcsubndotcnmniininaee eo passim

BO EFAs YA IUOD vn ncasinniecastnotertacancoomionacnecsiaeaemeinte 1

OD CIA: Wee i rcecctvsccinsasiksiavatiadcctondealinaeniatinad 23 n.15

GE I Ba. FDO Gisischasccnsjadedvesdc eae passim

4D UL BG, F Ue i vesieccsorissetiekenstccecteerpaaceea daa 2,14

4S ABAD, FRI ecsicccuvictsscnsisnletdbcemeics tiatclg bene 2,4

Balanced Budget Act of 1997, Pub. L. No. 105-33,

§ 4531(b)(2) & (3), 111 Stat. 251 (1997) (codified

in part at 42 U.S.C. § 1395m(1))..............ecsessseeees passim

Medicare, Medicaid, and SCHIP Benefits Im-

provement and Protection Act of 2000, Pub. L.

No. 106-554, § 423, 114 Stat. 2763 (2000) (codi-

fied in part at 42 U.S.C. § 1395m(1)(2)(E))............. passim

TABLE OF AUTHORITIES — Continued

Page

Medicare Program; Fee Schedule for Payment of

Ambulance Services and Revisions to the Physi-

cian Certification Requirements for Coverage of

Nonemergency Ambulance Services, 67 Fed. Reg.

9100 (Feb. 27, 2002) (to be codified at 42 C.F.R.

OE, BEE Aris ci hccipnseletsicidicecsiteassetpiemsrcsitnte 3, 4, 5, 20

Medicare Program; Notice of Ambulance Fee

Schedule in Accordance With Federal District

Court Order, 68 Fed. Reg. 18654 (April 16, 2003)....3, 19

RULES OF THE SUPREME COURT OF THE UNITED STATES

I I as scsn cadeetsnasnshbdanssasdateonpobibininn 15

Be ri NI ish hice taitacitaccaseassAtaiigs tacts ctad burbs 14, 15, 26

NS Ns I lel aac hess ahsiddccabvhowencconecnitaehints 1

CITATIONS OF REPORTS OF OPINIONS

ENTERED IN THE CASE

The opinion of the United States Court of Appeals for

the Eleventh Circuit (App. la) is reported at Lifestar

Ambulance Service, Inc. v. United States, 365 F.3d 1293

(11th Cir. April 16, 2004). The opinion of the United States

District Court for the Middle District of Georgia (App. 12a)

is reported at Lifestar Ambulance Service, Inc. v. United

States, 211 F.R.D. 688 (M.D. Ga. Jan. 16, 2003).

BASIS FOR SUPREME COURT JURISDICTION

The United States Court of Appeals for the Eleventh

Circuit entered its judgment on appeal from the District

Court for the Middle District of Georgia on April 16, 2004.

App. la. The United States Court of Appeals for the

Eleventh Circuit denied a petition for rehearing en banc

on June 29, 2004. App. 44a. The present petition is timely

filed under 28 U.S.C. § 2101(c) and Rule 13.3 of this Court,

and this Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTES AND REGULATIONS

INVOLVED IN THE CASE

“The district courts shall have original jurisdiction of

any action in the nature of mandamus to compel an officer

or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.

App. 46a.

“The findings and decision of the [Secretary] after a

hearing shall be binding upon all individuals who were

parties to such hearing. No findings of fact or decision of

the [Secretary] shall be reviewed by any person, tribunal,

or governmental agency except as herein provided. No

action against the United States, the [Secretary], or any

officer or employee thereof shall be brought under section

1331 or 1346 of Title 28 to recover on any claim arising

under this subchapter.” 42 U.S.C. § 405(h). App. 46a

(including subsections (a), (g), & (h) of 42 U.S.C. § 405).

“The provisions of sections 406 and 416(j) of this title,

and of subsections (a), (d), (e), (h), (i), (j), (k), and (J) of

section 405 of this title, shall also apply with respect to

this subchapter to the same extent as they are applicable

with respect to subchapter II of this chapter, except that,

in applying such provisions with respect to this subchap-

ter, any reference therein to the Commissioner of Social

Security or the Social Security Administration shall be

considered a reference to the Secretary or the Department

of Health and Human Services, respectively.” 42 U.S.C.

§ 1395ii. App. 48a.

In addition to the above statutory provisions, the

following statutes and regulations are involved in this case

and their pertinent text is set forth in the appendix:

42 U.S.C. § 1395m(1). App. 49a.

Balanced Budget Act of 1997, Pub. L. No. 105-33,

§ 4531(b)(2) & (3), 111 Stat. 251 (1997) (codified in part at

42 U.S.C. § 1395m(1)). App. 53a.

Medicare, Medicaid, and SCHIP Benefits Improve-

ment and Protection Act of 2000, Pub. L. No. 106-554,

§ 423, 114 Stat. 2763 (2000) (codified in part at 42 U.S.C.

§ 1395m(1)(2)(E)). App. 59a.

Medicare Program; Fee Schedule for Payment of

Ambulance Services and Revisions to the Physician

Certification Requirements for Coverage of Nonemergency

Ambulance Services, 67 Fed. Reg. 9100 (Feb. 27, 2002) (to

be codified at 42 C.F.R. pts. 410 & 414). App. 64a.

Medicare Program; Notice of Ambulance Fee Schedule

in Accordance With Federal District Court Order, 68 Fed.

Reg. 18654 (April 16, 2003). App. 227a.

STATEMENT OF THE CASE

As the district court observed, “[t]he parties agree that

the issues to be resolved in this case should be resolved as

a matter of law because no genuine issues of material fact

exist to be tried.” App. 19a. Petitioners Lifestar Ambulance

Service, Inc., Coastal Medical Transport, Inc., and Ambu-

lance Services, Inc. are suppliers of ambulance services

that furnished services to Medicare beneficiaries during

the relevant time frame.’ App. 13a. Respondents are the

Secretary of the Department of Health and Human Ser-

vices (“DHHS”) and related parties responsible for imple-

mentation of a fee schedule pursuant to the Balanced

1 The relevant time frame is the time during which Respondents

reimbursed suppliers under the reasonable charge methodology in

contravention of Congress’s command that a fee schedule rate shall

apply to services furnished on or after the effective dates of the

statutes. For BBA purposes, the relevant time frame runs from January

1, 2000 through March 31, 2002. For BIPA purposes, the relevant time

frame runs from July 1, 2001 through March 31, 2002.

Budget Act of 1997 (“BBA”) and the Medicare, Medicaid,

and SCHIP Benefits Improvement and Protection Act of

2000 (“BIPA”). App. 13a-14a.

As part of the BBA, Congress passed legislation

redefining the way in which ambulance service suppliers

are reimbursed for services provided to Medicare benefici-

aries. Congress explicitly stated that the changes, which

involved the adoption of a fee schedule to replace the old

reasonable charge methodology, “shall apply to services

furnished on or after January 1, 2000.” App. 58a (BBA,

Pub. L. No. 105-33, § 4531(b)(3) (1997) (codified in part at

42 U.S.C. §1395m(1))). But when the DHHS adopted

regulations enacting a fee schedule, the regulations only

applied the fee schedule to services furnished on or after

April 1, 2002. App. 65a (Medicare Program: Fee Schedule

for Payment of Ambulance Services and Revisions to the

Physician Certification Requirements for Coverage of —

Nonemergency Ambulance Services, 67 Fed. Reg. 9100,

9100 (2002) (Feb. 27, 2002) (to be codified at 42 C.F R. pts.

410 & 414) (“Effective date: April 1, 2002”)). Thus, no fee

schedule exists for the relevant time frame.

In the BIPA, Congress further refined the payment

system for ambulance suppliers. Under the old approach,

suppliers in certain states did not receive mileage pay-

ments for miles traveled in their home county. In the

_ BIPA, Congress directed that in addition to the changes

mandated by the BBA, these suppliers should also receive

“full payment of any national mileage rate” under the fee

schedule for in-county miles. App. 63a (BIPA, Pub. L. No.

106-554, § 423(b)(1) (codified at 42 U.S.C. § 1395m(1)(2)(E))).

Congress specifically directed that this amendment “shall

apply to services furnished on or after July 1, 2001.” App.

63a (Id. at § 423(b)(2)). In direct contravention of that

clear congressional mandate, the DHHS adopted a rule

that only implemented this change for services furnished

on or after April 1, 2002. App. 65a (67 Fed. Reg. 9100,

9100). Thus, the DHHS has not paid this national

mileage rate for in-county wiles for services fur-

nished in the relevant time frame.

Petitioners challenged Respondents’ adoption of a

regulation that fails to comply with the clear direction of

Congress, and Petitioners sought an order from the dis-

trict court requiring Respondents to adopt and apply a fee

schedule for services furnished on or after the dates

certain established by Congress in the BBA and the BIPA.

App. 13a-14a. The district court denied Respondents’

motion to dismiss, finding that it had jurisdiction under

the Mandamus Act, 28 U.S.C. § 1361. App. 18a-19a. In

doing so, the district court followed every circuit court that

had addressed the issue by rejecting Respondents’ conten-

tion that mandamus is categorically unavailable in cases

arising under the Medicare statute. App. 19a n.4. ;

Having determined that the Medicare Act did not

operate as an across-the-board bar to the exercise of

mandamus jurisdiction, the court further found it could

exercise mandamus jurisdiction’ even though Petitioners

had not pursued administrative relief under the Medicare

Act. App. 18a-19a. To avail themselves of the court's

mandamus jurisdiction, Petitioners had to show (1) that

Respondents owed them a clear, non-discretionary duty

and (2) that Petitioners had exhausted all other avenues of

? The district court’s analysis of mandamus for jurisdictional

purposes is intertwined with its analysis of the motions for summary

judgment.

relief. App. 20a. On the question of clear non-discretionary

duty, the district court found that “the BBA unequivocally

required DHHS to develop a new fee schedule applicable

to services furnished on or after January 1, 2000.” App.

20a. In addition, the court found that “Congress plainly

stated in the BIPA that changes in the payment of in-

county mileage would apply to services furnished on or

after July 1, 2001.” App. 20a. The cornerstone of the

court’s decision was its conclusion that “Congress left no

room for DHHS to exercise its discretion to alter the

effective dates of these statutory provisions.” App. 20a.

Turning to the second prong of mandamus as to

whether Petitioners had exhausted other avenues of relief,

the court noted that “the question is not simply whether

[Petitioners] have completed the administrative process”

but is whether “there is another means to obtain adequate

review.” App. 23a (citing In re Bethesda Mem’ Hosp., Inc.,

123 F.3d 1407, 1408 (11th Cir. 1997)). Respondents had

insisted that Petitioners must file administrative claims

before invoking mandamus jurisdiction, but the district

court rejected this contention in light of the fact that the

relief sought by Petitioners could not be secured in the

administrative process. App. 23a.

Additionally, prior to the announcement of a rule

adopting a fee schedule during the relevant time frame, it

would have made no sense for Petitioners to mount an

administrative challenge, as no fee schedule existed on

which to base an administrative claim. App. 24a-25a. The

district court recognized that “[nlothing could have been

achieved by filing an administrative claim challenging the

amounts paid for every service rendered based on the

argument that a fee schedule that did not exist would pay

them more than the Government had paid.” App. 25a.

Finally, the district court noted that Respondents had

directed the carriers’ not to pay any claims for reimburse-

ment under the new, inapplicable fee schedule if the

services were furnished prior to April 1, 2002. App. 25a

(citing DHHS Program Memorandum Intermediaries/

Carriers). In holding that mandamus jurisdiction was

proper, the district court refused to require Petitioners to

invoke an administrative process which “(1) is forever

incapable of providing the relief they seek, (2) was effec-

tively unavailable to [Petitioners] prior to the announce-

ment of the fee schedule, and (3) is now unavailable to

[Petitioners] because of the actions of [Respondents].” App.

26a. Finding no reason to excuse Respondents from their

clear, non-discretionary duty to adopt a fee schedule that

complied with the effective dates set out by Congress, the

district court exercised mandamus jurisdiction and or-

dered Respondents to adopt a fee schedule that applies to

services furnished in the relevant time frame as specified

by BBA and BIPA. App. 26a-32a.

Respondents appealed. On April 16, 2004, the United

States Court of Appeals for the Eleventh Circuit reversed

the district court’s denial of the motion to dismiss and

remanded with instructions to dismiss for want of subject

matter jurisdiction. App. 1la. Petitioners then petitioned

the court of appeals for rehearing en banc, and on June 29,

2004, the court of appeals filed an order denying the

petition for rehearing and rehearing en banc. App. 44a-

45a. This petition for a writ of certiorari followed.

? Intermediaries/carriers are responsible for the actual payment of

claims. They are agents of the Secretary.

In reversing on the jurisdictional issue,’ the Eleventh

Circuit panel’s opinion focused exclusively on the second

prong of the mandamus test: whether an “other adequate

remedy is available.” Yet, in doing so, the panel never

analyzed whether a district court could ever grant Peti-

tioners any relief besides mandamus. App. 4a-1la. Relying

heavily on Shalala v. Illinois Council on Long Term Care,

Inc., 529 U.S. 1 (2000), a decision addressing only federal

question jurisdiction and not mandamus jurisdiction, the

court of appeals ruled that Petitioners could not meet the

test for mandamus jurisdiction as an “other adequate

remedy” was available — going through the administrative

process’ followed by plenary judicial review under the

district court’s federal question jurisdiction. App. 8a-9a.

In essence, the court of appeals grafted the federal-

question-based “channeling” requirement onto the test for

mandamus jurisdiction.® App. 10a. In so doing, the Elev-

enth Circuit ignored the inescapable result that even its

suggested “other remedy” would result in a district court

* Because the exercise of mandamus jurisdiction is an issue of law,

the standard of review is de novo. App. 4a (citing Cash v. Barnhart, 327

F.3d 1252, 1255 n.4 (11th Cir. 2003)). _s»—_———_

* Respondents acknowledge that an administrative law judge could

not have ordered them to modify the effective date of the regulation —

the very relief sought by Petitioners. See Br. for the Federal Appellants,

filed 04/29/2003 in the Court of Appeals for the Eleventh Circuit, at 31

(“It is true that an ALJ is obligated to follow current regulations and

thus could not compel the Secretary to issue fee schedule regulations or

declare invalid those regulations that were in effect.”); Defs.” Mem. Law

Supp. Defs.’ Mot. Dismiss, filed 10/22/2002 in the District Court for the

Middle District of Georgia, docket entry # 16, at 20 n.10 (ALJs must, of

course, are [sic] bound by applicable DHHS regulations.”).

* This ruling is in conflict with the holding of every other circuit

that has addressed the issue of whether “channeling” is a prerequisite

to mandamus jurisdiction. See App. 19a n.4 & 4a n.3.

powerless to order Respondents to adopt a fee schedule

except through mandamus. As set forth below, the exercise

of federal question jurisdiction after “channeling” through

the administrative process is not “adequate” because a

district court can grant no relief besides mandamus that

will result in a fee schedule applicable to the time period

mandated by Congress.

SUMMARY OF THE REASONS

FOR GRANTING THE WRIT

This appeal involves a significant and pivotal jurisdic-

tional issue that has not been, but should be, settled by

this Court — the relationship between the Mandamus Act

and the jurisdictional provision in the Medicare Act. This

Court has declined to decide on five separate occasions

whether 42 U.S.C. § 405 forecloses mandamus jurisdiction,

finding it unnecessary to reach the issue in those cases. In

this case, however, whether § 405(h) forecloses mandamus

jurisdiction is the issue to be reviewed and should be

settled, once and for ali, by this Court.

Prior to the Eleventh Circuit’s opinion in this case,

nine circuit courts had addressed this issue and uniformly

agreed that § 405 does not bar consideration of whether

jurisdiction lies under the Mandamus Act. This result

follows logically from the fact that the Medicare Act’s

jurisdiction-limiting provision, 42 U.S.C. §405 — the

provision from which the “channeling” requirement de-

rives — specifically limits federal question jurisdiction but

does not limit mandamus jurisdiction. The opinion of the

Eleventh Circuit, however, effectively forecloses the

exercise of mandamus jurisdiction in all Medicare cases.

This petition should be granted so that the Court may

resolve the otherwise irreconcilable conflict between the

Eleventh Circuit and the previously unfractured consen-

sus of nine other circuits, and so that mandamus may be

preserved as a viable basis for jurisdiction under the

Medicare Act as intended by Congress.

The opinion of the Eleventh Circuit rests on a critical

assumption that is then contradicted by the misapplica-

tion of this Court’s holding in Shalala v. Illinois Council

on Long Term Care, Inc., 529 U.S. 1 (2000). In reversing on

the jurisdictional issue, the Eleventh Circuit’s opinion

focused exclusively on the second prong of the mandamus

test — whether an “other adequate remedy” is available.

Yet, in doing so, the Eleventh Circuit never analyzed

whether a district court could ever grant Petitioners any

relief besides mandamus. App. 4a-1la. Relying heavily on

Illinois Council, a decision addressing only federal ques-

tion jurisdiction and not mandamus jurisdiction, the

Eleventh Circuit ruled that Petitioners could not meet the _

test for mandamus jurisdiction as an “other adequate

remedy” was available -- going through the administrative

Process followed by plenary judicial review under the

district court’s federal question jurisdiction. App. 8a-9a.

The Eleventh Circuit ignored the inescapable result that

even its suggested “other remedy” would result in a

district court powerless to order Respondents to adopt a

fee schedule except through mandamus.

Illinois Council requires “the ‘channeling’ of virtually

all legal attacks through the agency” before federal ques-

tion jurisdiction may be exercised. Illinois Council, 529

U.S. at 13. But having misidentified Illinois Council as

“controlling authority” in a case in which jurisdiction was

based upon mandamus, the court of appeals grafted the

federal-question-based “channeling” requirement’ onto the

test for mandamus jurisdiction. App. 10a. This ruling is in

conflict with the holding of every other circuit that has

addressed the issue of whether “channeling” is a prerequi-

site to mandamus jurisdiction. See App. 19a n.4 & 4a n.3.

Under the Eleventh Circuit’s opinion, no claim arising

under the Medicare Act could ever meet the test for

mandamus jurisdiction. Respondents acknowledge that an

administrative law judge could not have ordered them to

modify the effective date of the regulation — the very relief

sought by Petitioners. See Br. for the Federal Appellants,

filed 04/29/2003 in the Court of Appeals for the Eleventh

Circuit, at 31 (“It is true that an ALJ is obligated to follow

current regulations and thus could not compel the Secre-

tary to issue fee schedule regulations or declare invalid

those regulations that were in effect.”); Defs.’ Mem. Law

Supp. Defs.’ Mot. Dismiss, filed 10/22/2002 in the District

Court for the Middle District of Georgia, docket entry # 16,

at 20 n.10 (“ALJs must, of course, are [sic] bound by

applicable DHHS regulations.”). Moreover, a fee schedule

will never materialize unless a district court orders

7 ‘The Eleventh Circuit’s opinion obliterates the distinction between

two independent bases of jurisdiction for cases that arise under the

Medicare Act: (1) federal question jurisdiction, 28 U.S.C. § 1331, and (2)

mandamus jurisdiction, 28 U.S.C. § 1361. Federal question jurisdiction

is proper in a case that meets the prerequisites of § 405 of the Medicare

Act, which means that such claims must first be “channeled” through

the administrative process before federal question jurisdiction can

exist. See 42 U.S.C. § 405(g) & (h); Shalala v. Ill. Council on Long Term

Care, Inc., 529 U.S. 1 (2000). Mandamus jurisdiction, on the other

hand, is proper in a Medicare case that meets the prerequisites of the

Mandamus Act. 28 U.S.C. § 1361; see Monmouth Med. Ctr. v. Thompson,

257 F.3d 807, 813 (D.C. Cir. 2001); Ganem v. Heckler, 746 F.2d 844, 850

(D.C. Cir. 1984) (collecting cases from seven circuits), Ellis v. Blum, 643

F.2d 68, 78 (2d Cir. 1981).

Respondents to adopt one, and such an order cannot be

made pursuant to the district court’s federal question

jurisdiction. Mandamus jurisdiction, which exists for the

very purpose of allowing courts to hear actions to compel

federal officials to follow the law, is the only method

through which Respondents can be compelled to adopt a

fee schedule that applies to the time period specified by

Congress.

Despite the uncontested fact that the relief sought by

Petitioners could not be obtained administratively and

despite the fact that a district court exercising plenary

federal question jurisdiction could never grant the relief

sought by Petitioners, the court of appeals held that

“channeling” was a prerequisite to the exercise of manda-

mus jurisdiction. See App. 10a-1la. That holding — requiring

“channeling” as a prerequisite to mandamus jurisdiction in

this case despite (a) its inability to provide the relief sought

by Petitioners and (b) the fact that the relief sought by

Petitioners could only be granted by a district court

exercising mandamus jurisdiction — effectively grafts a

requirement of “channeling” as a prerequisite to the

exercise of mandamus jurisdiction in all Medicare cases.

Of course, if “channeling” is mandatory for all claims

arising under the Medicare Act, then in the Eleventh

Circuit® no claim arising under the Medicare Act will ever

satisfy the test for mandamus jurisdiction as an “other

adequate remedy” will always exist for every such claim.

That “remedy” is entirely illusory, however, because

neither an administrative law judge nor the district court

* The other nine circuits that have addressed this issue have

uniformly held that § 405 does not bar consideration of whether

jurisdiction is available under the Mandamus Act.

exercising federal question jurisdiction can grant the relief

requested — an order requiring Respondents to adopt a fee

schedule that applies to services furnished in the relevant

time frame as mandated by Congress in the BBA and the

BIPA.

This case illustrates the point perfectly. Success for

these Petitioners depends completely on Respondents

being ordered to comply with the law and to adopt a fee

schedule; and, to order the Secretary to adopt a fee sched-

ule, a district court must grant mandamus. The exercise of

federal question jurisdiction’ after “channeling” through

the administrative process is not “adequate” because a

district court can grant no relief besides mandamus that

will result in a fee schedule applicable to the time period

mandated by Congress. The practical effect of the court of

appeals ruling places the Eleventh Circuit at odds with

nine other circuits by essentially wiping the Mandamus

Act off the books for cases arising under the Medicare Act.

Petitioners request that this Court grant their peti-

tion for a writ of certiorari to resolve the otherwise irrec-

oncilable conflict between the holding of the Eleventh

Circuit and the previously unfractured consensus of nine

other circuits which held that 42 U.S.C. § 405(h) does not

stand as an obstacle to the exercise of mandamus jurisdic-

tion; and to correct a result that, if undisturbed, will leave

untouched the inequities in the payment for ambulance

services that Congress sought to correct in the BBA and

* The jurisdictional provision of the Medicare Act, 42 U.S.C.

§ 405(h), requires the “channeling” of claims through the administrative

process prior to the exercise of 28 U.S.C. § 1331 federal question

jurisdiction or 28 U.S.C. § 1346 United States defendant jurisdiction.

the BIPA during the legislatively mandated relevant time

period.

REASONS FOR GRANTING THE WRIT

I. THE OPINION OF THE ELEVENTH CIRCUIT

CONFLICTS WITH THE PREVIOUSLY UN-

FRACTURED CONSENSUS OF THE NINE

OTHER CIRCUITS THAT HAVE ADDRESSED

WHETHER 42 U.S.C. § 405(h) FORECLOSES

MANDAMUS JURISDICTION.

This appeal involves a significant jurisdictional issue

— the relationship between the Mandamus Act and the

jurisdictional provision in the Medicare Act — that is,

without a doubt, “an important question of federal law

that has not been, but should be, settled by this Court.”

Sup. CT. R. 10(c). By the mid-1980s, this Court had de-

clined to decide, on four different occasions, whether 42

U.S.C. § 405” forecloses mandamus jurisdiction. See

Heckler v. Ringer, 466 U.S. 602, 616 (1984) (“[a]lssuming

without deciding that ... §405(h) does not foreclose

mandamus jurisdiction”); Califano v. Yamasaki, 442 U.S.

682, 698 (1979); Mathews v. Eldridge, 424 U.S. 319, 332

n.12 (1976); Norton v. Mathews, 427 U.S. 524, 529-30

(1976). Recently, the Court yet again found it unnecessary

to decide this issue when raised by the Secretary. Your

Home Visiting Nursing Servs., Inc. v. Shalala, 525 U.S.

* Section 405 of the Social Security Act is incorporated by refer- -

ence into the Medicare Act by 42 U.S.C. § 1395ii. App. 48a. While some

of these decisions examine § 405 in the context of the Social Security

Act, the underlying reasoning on the jurisdictional issue applies equally

to either Act.

449, 457 n.3 (1999). In this case, however, whether

§ 405(h) forecloses mandamus jurisdiction is the issue to

be reviewed and should be settled, once and for all, by this

Court. Sup. CT. R. 10(c).

A simple explanation exists for the Court’s finding it

unnecessary to address this vital jurisdictional issue: the

circuit courts agreed, that is, until the Eleventh Circuit’s

recent opinion. Before the Eleventh Circuit’s opinion in

this case, nine circuit courts had addressed this issue and

uniformly agreed that § 405 does not bar consideration of

whether jurisdiction lies under the Mandamus Act. See

Monmouth Med. Ctr. v. Thompson, 257 F.3d 807, 813 (D.C.

Cir. 2001) (“virtual unanimity”); Ganem uv. Heckler, 746

F.2d 844, 850 (D.C. Cir. 1984) (collecting cases from seven

circuits and noting “there is now an unfractured consensus

in the Courts of Appeals that have considered the question

that mandamus remains available under the act in appro-

priate circumstances”); Ellis v. Blum, 643 F.2d 68, 78 (2d

Cir, 1981) (“impressive array of cases in this and other

circuits has established that § 1361 jurisdiction will lie to

review procedures employed in administering [benefits].”);

App. 4a n.3 (referencing cases from Second, Third, Fourth,

Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits).

This petition for a writ of certiorari should be granted

so that the Court may address whether § 405(h) forecloses

mandamus jurisdiction in Medicare cases and thereby

resolve the conflict between the holding of the Eleventh

Circuit and the previously unanimous holdings of nine

other circuits regarding this important jurisdictional issue

that “has not been, but should be, settled by this Court.”

Sup. CT. R. 10(a) & (c).

Il. THE ELEVENTH CIRCUIT’S OPINION LOSES

THE CRITICAL DISTINCTION BETWEEN

MANDAMUS JURISDICTION AND FEDERAL

QUESTION JURISDICTION AND MISAP-

PLIES THIS COURT’S HOLDING IN SHA-

LALA V. ILLINOIS COUNCIL ON LONG TERM

CARE, INC., 529 U.S. 1 (2000).

Federal courts have exercised two different types of

subject matter jurisdiction in cases that arise under the

Medicare Act:" (1) federal question jurisdiction, 28 U.S.C.

§ 1331, and (2) mandamus jurisdiction, 28 U.S.C. § 1361.

In Medicare cases, these two types of subject matter

jurisdiction are completely independent of one another, are

based on two separate jurisdictional statutes, and are, in

fact, mutually exclusive. The opinion of the court of ap-

‘peals, however, obliterates the distinction between these

two independent bases of jurisdiction; and, in doing so, the

opinion contradicts its own assumption that Mandamus

Act jurisdiction can exist in cases arising under the Medi-

care Act.

Federal question jurisdiction is proper in a Medicare

case that meets the prerequisites of § 405 of the Medicare

Act. See 42 U.S.C. § 405(g), (h). This jurisdictional provi-

sion requires that for federal question jurisdiction to exist,

Medicare claims must first be “channeled” through the

administrative process. See Shalala v. Ill. Council on Long

Term Care, Inc., 529 U.S. 1 (2000). “Such claims are

subject to plenary judicial review under the Medicare

" For purposes of this appeal, Petitioners concede that claims for

the creation and application of a fee schedule for payment for ambu-

lance services furnished during the relevant time frame arise under the

Medicare Act.

remedial scheme only after the administrative review

process has been exhausted.” App. 8a-9a.

Mandamus jurisdiction, on the other hand, is proper

in a Medicare case that meets the prerequisites of the

Mandamus Act.” 28 U.S.C. § 1361. Prior to the Eleventh

Circuit’s departure, every circuit that had addressed the

issue concluded that mandamus jurisdiction can exist over

claims arising under the Medicare Act without “channel-

ing” these claims through the administrative process. See

Monmouth Med. Ctr. v. Thompson, 257 F.3d 807, 813 (D.C.

Cir. 2001); Ganem v. Heckler, 746 F.2d 844, 850 (D.C. Cir.

1984) (collecting cases from seven circuits); Ellis v. Blum,

643 F.2d 68, 78 (2d Cir. 1981); App. 4a n.3 (referencing

cases from the D.C., Second, Third, Fourth, Sixth, Sev-

enth, Eighth, Ninth, and Tenth Circuits). This result

follows logically from the fact that the Medicare Act’s

jurisdiction-limiting provision, § 405 — the provision from

which the “channeling” requirement derives — specifically

limits federal question jurisdiction but does not limit

mandamus jurisdiction. The distinction makes sense

because federal question Medicare cases are claims for

payment for covered services, and the administrative

process is necessary to create a record that is helpful in

the determination of coverage or payment decisions. On

the other hand, there is no “channeling” requirement in

§ 405 as a prerequisite to the exercise of mandamus

jurisdiction. The underlying reasoning for this distinction

* Mandamus jurisdiction under 28 U.S.C. § 1361 allows courts to

hear actions to compel federal officials to follow the law and is proper if

(a) the defendant owes the plaintiff a clear, non-discretionary duty, and

(b) the plaintiff has no other adequate means of review. See Heckler v.

Ringer, 466 U.S. 602, 616 (1984); Cash v. Barnhart, 327 F.3d 1252, 1258

(11th Cir. 2003). That standard is met here. See infra Part III.

is evident from the facts of this case - mandamus jurisdic-

tion is necessary to force a federal agency to adopt the very

system that allows Medicare claims to be paid according to

the law, and no administrative process or federal question-

plenary review can order an agency to follow the law

without mandamus.

In short, federal question jurisdiction and mandamus

jurisdiction are mutually exclusive in Medicare cases. If a

claimant can obtain relief from a district court exercising

federal question jurisdiction, then mandamus jurisdiction

does not exist because an “other adequate remedy” exists.

See Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003)

(mandamus jurisdiction proper only if “no other adequate

remedy is available”). The critical question for this appeal

is whether Petitioners had an “other adequate remedy”

besides mandamus.

Ill. PETITIONERS HAVE NO OTHER ADEQUATE

REMEDY.

The conclusion that Petitioners had an “other ade-

quate remedy” besides mandamus is error. The court of

appeals presumed that Petitioners could have “channeled”

their claims through the administrative process and then

received the relief they sought from the district court

exercising federal question jurisdiction. But this result

was, and is, impossible.

Petitioners can only receive the relief they seek

through mandamus. Respondents’ failure to adopt a

regulation that complies with the controlling statute

means that no fee schedule exists to pay Petitioners as

Congress intended for services furnished during the

relevant time frame. A fee schedule for the relevant time

frame will never materialize unless a district court orders

Respondents to adopt one. See App. 227a (Medicare

Program; Notice Of Ambulance Fee Schedule In Accor-

dance With Federal District Court Order, 68 Fed. Reg.

18654 (April 16, 2003) (announcing Respondent’s intent to

comply with district court’s decision)). This order cannot

be made pursuant to the district court’s federal question

authority. ®

So, assuming an Article III court determined that

Petitioners should be paid as Congress intended, how

could the court grant this relief? After Petitioners “chan-

neled” their claims through the administrative process, as

required by the Eleventh Circuit, what relief could a court

grant? The answer is only mandamus. A district court

could not order Respondents to pay Petitioners damages

under its federal question jurisdiction because no fee

schedule exists from which to calculate those damages.

For Petitioners to be paid as Congress intended, a district

court must first order Respondents to adopt a fee schedule

applicable to the relevant time frame — that is mandamus.

There is absolutely no other remedy that will result in a

fee schedule during the relevant time frame, therefore no

“other adequate remedy” exists and mandamus jurisdic-

tion is proper.

* This is not simply a matter of declaring existing regulations

invalid under a district court’s federal question jurisdiction - the

existing regulations are valid as to services furnished on or after April 1,

2002, but the existing regulations do not execute the Congressional

directive for the relevant time frame as mandated by Congress in the

BBA and the BIPA. In order to compel Respondents to adopt a fee

schedule that applies to services furnished on or after the dates certain

set forth in the BBA and the BIPA, a district court must exercise

mandamus jurisdiction.

The Mandamus Act provides that district courts have

original jurisdiction over an action “to compel an officer or

employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. In

determining whether mandamus jurisdiction is proper, the

court simply asks whether mandamus relief would be

appropriate. Cash v. Barnhart, 327 F.3d 1252, 1258 (11th

Cir. 2003). Mandamus jurisdiction is appropriate when “(1)

the plaintiff has a clear right to the relief requested; (2)

the defendant has a clear duty to act; and (3) no other

adequate remedy is available.”* Id.; see also Heckler v.

Ringer, 966 U.S. 602, 616 (1984) (mandamus is “intended

to provide a remedy for a plaintiff only if he has exhausted

all other avenues of relief and only if the defendant owes

him a clear, nondiscretionary duty”).

“ The court of appeals held that mandamus was not proper

because of its conclusion that another adequate remedy is available.

While this Court need not address the issue as it is not critical to this

appeal, for background purposes Petitioners show the Court that

Respondents have breached a clear, non-discretionary duty by adopting

a regulation with an effective date that conflicts with the statutory

effective dates. As succinctly stated by the district court, the relevant

statutory language in “both the BBA and BIPA is unambiguous and

expresses the clear intent of Congress that the new fee schedules

enacted pursuant to both Acts are to apply to services rendered after a

date certain.” App. 22a n.7. The amendments of the BBA “shali apply to

services furnished on or after January 1, 2000.” BBA, Pub. L. No. 105-

33, § 4531(b)(3). The BIPA’s effective date provision is just as straight-

forward, stating that the amendment “shall apply to services furnished

on or after July 1, 2001.” BIPA, Pub. L. No. 106-554, § 423(b)(2). The

district court held that “Congress left no room for DHHS to exercise its

discretion to alter the effective dates of these statutory provisions.” App.

20a. In spite of this language, Respondents adopted a regulation

applying fee schedule rates only after Apri! 1, 2002. 67 Fed. Reg. 9100

(Feb. 27, 2002). The statutory duty and the Respondents’ breach need

no explanation. Indeed, a better example of government action justify-

ing mandamus relief is difficult to imagine.

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There is no other adequate means of review to address

the single issue of law in this case: should Respondents be

compelled to apply a fee schedule (including mileage

changes as required by BIPA) to services furnished in the

relevant time frame? Respondents wholeheartedly agree

that an ALJ lacks the power to address such a claim. See

Br. for the Federal Appellants, filed 04/29/2003 in the

Court of Appeals for the Eleventh Circuit, at 31 (“It is true

that an ALJ is obligated to follow current regulations and

thus could not compel the Secretary to issue fee schedule

regulations or declare invalid those regulations that were

in effect.”); Defs.’ Mem. Law Supp. Defs.’ Mot. Dismiss,

filed 10/22/2002 in the District Court for the Middle

District of Georgia, docket entry # 16, at 20 n.10 (““ALJs

must, of course, are [sic] bound by applicable DHHS

regulations.”). Mandamus jurisdiction, which exists for the

very purpose of allowing courts to hear actions to compel

federal officials to follow the law, is the only method

through which Respondents can be compelled to adopt a

fee schedule that applies to the time period specified by

Congress. As such, there is no other adequate means of

review.

In short, when a federal court orders an agency

to follow the law, that is mandamus. 28 U.S.C. § 1361;

see also Natl Wildlife Fed’n v. United States, 626 F.2d 917,

918 n.1 (D.C. Cir. 1980) (“An action purportedly requesting

a mandatory injunction against a federal official is prop-

erly analyzed as one requesting mandamus.”). Because

mandamus is the only remedy that can result in payment

during the time frame mandated by Congress, there is no

“other adequate remedy” besides mandamus. Therefore,

mandamus jurisdiction is proper.

IV. THE OPINION ATTEMPTS TO AVOID A CIR-

CUIT SPLIT BY ASSUMING MANDAMUS JU-

RISDICTION CAN EXIST IN MEDICARE

CASES BUT INSTEAD COMPLETELY FORE-

CLOSES MANDAMUS JURISDICTION IN

SUCH CASES.

The panel’s opinion is internally inconsistent in that it

makes a critical assumption that is later flatly contra-

dicted. In a failed attempt to avoid a circuit split, the court

of appeals purported to “assume” that the jurisdictional

provision applicable to the Medicare Act does not bar

mandamus jurisdiction for claims arising under the

Medicare statute, specifically stating:

We assume, without deciding, that mandamus

jurisdiction is not barred by 42 U.S.C. § 405(h),

and, therefore, is available for a claim arising

under the Medicare statute.

App. 4a n.3 (citing cases from the D.C., Second, Third,

Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Cir-

cuits). The court’s opinion, however, creates a circuit split

when it then contradicts that very assumption by effec-

tively ruling that no claim arising under the Medicare Act

will ever meet the test for mandamus jurisdiction.

This Court need look no further than the language of

42 U.S.C. § 405(h) to resolve this issue. That jurisdictional

provision of the Medicare Act specifically precludes federal

question and United States defendant jurisdiction but

never mentions the Mandamus Act. 42 U.S.C. § 405(h)

(“No action against the United States, the Secretary, or

any officer or employee thereof shall be brought under

sections 1331 or 1346 of title 28 to recover on any claim

arising under this subchapter.”). Statutes limiting judicial

review only exclude those matters addressed by the

statute. See Belles v. Schweiker, 720 F.2d 509, 512 (8th Cir.

1983) (citing Weinberger v. Salfi, 422 U.S. 749, 761-62

(1975)). Congress in Section 405 showed that it knows how

to cut off jurisdictional avenues; it did just that with

federal question and United States defendant jurisdiction.

See Belles, 720 F.2d at 512 n.4 (finding no clear and

convincing evidence that Congress intended to limit

mandamus jurisdiction by 405(h)). The fact that Congress

did not withdraw jurisdiction under the Mandamus Act in

Section 405 shows that Congress intended to leave that

option open, and thus mandamus jurisdiction is available

in Medicare cases. See Ganem v. Heckler, 746 F.2d 844,

852 (D.C. Cir. 1984) (“The fact that Congress knows how to

withdraw a particular remedy and has not expressly done

so provides some indication of a congressional intent to

preserve that remedy.”). Moreover, Congress knows how to

withdraw mandamus act jurisdiction when it so desires to

limit judicial review, as that is precisely what it did in

Veterans’ Affairs cases.”° See Ellis v. Blum, 643 F.2d 68, 81

* In response to federal courts exercising judicial review via

mandamus in Veterans’ Affairs benefits cases, Congress responded by

amending 38 U.S.C. § 211(a) to provide that “no other official or any

court of the United States shall have the power or jurisdiction to review

any such decision by an action in the nature of mandamus or otherwise.”

Ellis v. Blum, 643 F.2d 68, 81 n.14 (2d Cir. 1981) (emphasis supplied to

indicate language added by Congress). With respect to section 42 U.S.C.

§ 405(h), since the early 1980s federal courts have consistently held

that section 405(h) does not preclude mandamus jurisdiction. See, e.g.,

Ellis v. Blum, 643 F.2d 68, 82 (2d Cir. 1981); Belles v. Schweiker, 720

F.2d 509, 512-13 (8th Cir. 1983); Colonial Penn Ins. Co. v. Heckler, 721

F.2d 431, 437 n.2 (3d Cir. 1983) (citing cases in Third Circuit from the

late 1970s in which the court exercised mandamus jurisdiction notwith-

standing section 405(h)); City of New York v. Heckler, 742 F.2d 729, 739

(2d Cir. 1984); Ganem v. Heckler, 746 F.2d 844, 850 (D.C. Cir. 1984);

Burnett v. Bowen, 830 F.2d 731, 736-38 (7th Cir. 1987); Briggs v.

Sullivan, 886 F.2d 1132, 1142 (9th Cir. 1989). If Congress had intended

(Continued on following page)

n.14 (2d Cir. 1981). Therefore, Section 405(h) provides

compelling support for a conclusion that Congress never

intended to prevent courts from even considering whether

jurisdiction would be proper under the Mandamus Act.

The remainder of the Eleventh Circuit’s opinion

contravenes its own critical assumption by effectively

ruling that no claim arising under the Medicare Act will

ever meet the test for mandamus jurisdiction. The court

held that Petitioners had an “other adequate remedy”

through “administrative review followed by plenary

judicial review.” App. 10a. Applying the “channeling”

requirement derived from § 405, which never mentions

mandamus, to a mandamus claim, the opinion concludes

that the availability of this “other means to obtain ade-

quate review” precludes mandamus jurisdiction. Since this

“other means” of review would apply to all cases arising

under the Medicare statute, if the decision of the Eleventh

Circuit stands, mandamus is dead in Medicare cases

within the Eleventh Circuit — thus directly conflicting with

the nine other circuits that have addressed this issue.

The Eleventh Circuit noted that the Medicare statute,

as applied in Shalala v. Illinois Council on Long Term

Care, Inc., 529 U.S. 1 (2000), “demands the ‘channeling’ of

virtually all legal attacks” through the administrative

process before a provider “may seek judicial review.” App.

otherwise, then in response to the decisions of the circuit courts (many

of which are now more than 20 years old) Congress would have

amended Section 405 to specifically limit mandamus jurisdiction. The

fact that Congress has not done so provides further support for the

inescapable conclusion that mandamus jurisdiction is not precluded by

Section 405(h).

5a. But Illinois Council addressed federal question juris-

diction, not mandamus. The Eleventh Circuit opinion

misses this crucial distinction, effectively ruling that no

claim arising under the Medicare Act will ever meet the

test for jurisdiction under the Mandamus Act. Grafting the

channeling requirement derived from § 405 on to the test

for mandamus jurisdiction means that, in the Eleventh

Circuit, every claim arising under the Medicare Act must

be “channeled” irrespective of the underlying jurisdictional

basis asserted by the Petitioners. With “channeling”

required for every claim arising under the Medicare

statute, then every such claim has an “other adequate

remedy” thereby killing mandamus jurisdiction. As the

court of appeals stated:

Mandamus is an extraordinary remedy and will

not lie if other remedies are available. Medicare's

statutory remedial scheme provides for adminis-

trative review followed by plenary judicial re-

view. In the face of this comprehensive statutory

scheme, it cannot. be said that the second re-

quirement for mandamus review — that there be

no alternative avenues of relief — is met.

App. 10a (quotations and internal citation omitted). This

conclusion precludes mandamus jurisdiction for every

potential claim arising under the Medicare statute, and as

such, conflicts with the assumption on which the entire

opinion rests, the plain language of § 405th), and the

unanimous opinions of other circuits holding that manda-

mus jurisdiction is not foreclosed by § 405(h) and can exist

in a Medicare case.

Under the unique circumstances of this case, in which

Petitioners can only obtain the relief they seek through an

order directing a federal official to comply with the law, no

“other remedy” besides mandamus can possibly exist.

Even if Petitioners were to “channel” their claims, as the

opinion of the Eleventh Circuit requires, after that futile

process a district court could not grant them any relief

besides mandamus to compel Respondents to follow the

law by applying the fee schedule to the relevant time

frame.

V. THE COURT OF APPEALS MISUNDER-

STOOD THE HOLDING OF THIS COURT IN

HECKLER V. RINGER, 466 U.S. 602 (1984).

Another significant error in the opinion of the court of

appeals warrants the grant of this petition for a writ of

certiorari. The court of appeals identified the holding of

Heckler v. Ringer, 466 U.S. 602 (1984) as follows: “manda-

mus jurisdiction does not lie merely because resort to the

administrative process appears futile.” App. 8a. This

“holding” supports a critical part of the court of appeals

opinion, and the misapplication of this Court’s authority

warrants the grant of this petition. Sup. CT. R. 10(c).

Ringer involved a classic Medicare Act challenge —

determining whether a procedure is medically necessary.

The Secretary had issued “instructions to her intermediar-

ies precluding payment” for a specific surgical procedure.

Ringer, 466 U.S. at 608. After the intermediaries denied

coverage, many claimants appealed to ALJs who rendered

170 decisions overruling the intermediaries. Id. at 619.

The Secretary ultimately adopted a formal ruling binding

ALJs, the Appeals Council, and intermediaries. Id. at 608.

Four plaintiffs challenged this formal ruling, seeking

federal question jurisdiction (via § 405) and mandamus

jurisdiction.

This Court first considered three plaintiffs’ who had

undergone the surgery prior to the effective date of the

formal ruling. The Court ruled that mandamus was

inappropriate, as the plaintiffs could not meet two prongs

of the test for mandamus jurisdiction.” Of significance

here, these three plaintiffs had an “other adequate rem-

edy” besides mandamus — the administrative process was

granting full relief to persons asserting the same claims.

Id. at 619. The plaintiffs had undergone the surgery before

the Secretary’s formal ruling became binding on the ALJs,

and every single challenge to the “instructions to [the]

intermediaries” which applied to plaintiffs’ claims — 170 of

them — had been decided against the Secretary by the

ALJs. Id. Resort to the administrative process in Ringer

did not appear futile as the court of appeals decision

suggests in describing Ringer’s holding; indeed, the exact

opposite is true — in Ringer, the administrative process

appeared to be, and was, exactly where to go to get relief.

Seizing on this phantom holding, however, the deci-

sion of the court of appeals addresses Petitioners’ argu-

ments about the futility of pursuing their claims through

the administrative process against the backdrop of deci-

sions involving federal question jurisdiction. App. 4a-11a.

* A fourth plaintiff had not yet had surgery, but the Court found

the discussion of mandamus jurisdiction applied equally to his claims.

See Ringer, 466 U.S. at 620.

" The plaintiffs could not point to a clear, non-discretionary duty

violated by the Secretary because determining whether a procedure is

medically necessary is a discretionary decision. Ringer, 466 U.S. at 617

(“The Secretary’s decision as to whether a particular medical service is

‘reasonable and necessary’ and the means by which she implements her

decision . .. are clearly discretionary decisions.”). For this reason alone,

mandamus jurisdiction was inappropriate in Ringer.

But Petitioners addressed futility only because of a man-

damus case in which the plaintiffs had met the jurisdic-

tional test by showing that “all other avenues of relief are

either foreclosed or futile.” Monmouth Med. Ctr. v. Thomp-

son, 257 F.3d 807, 815 (D.C. Cir. 2001).

Petitioners’ point was not just that they can receive no

relief from the administrative process. Petitioners can

receive no relief from any tribunal, including a district

court, except through mandamus. In contrast with Ringer,

Petitioners here cannot get relief unless a district court

orders Respondents to comply with the law. Petitioners

seek the resolution of a single issue — did Congress require

Respondents to adopt a fee schedule that shall apply to

services furnished on or after January 1, 2000? Respon-

dents admit that an ALJ is powerless to resolve this issue.

See Br. for the Federal Appellants, filed 04/29/2003 in the

Court of Appeals for the Eleventh Circuit, at 31 (“It is true

that an ALJ is obligated to follow current regulations and

thus could not compel the Secretary to issue fee schedule

regulations or declare invalid those regulations that were

in effect.”). This is true because ALJs address claims for

entitlement to benefits. Here, the claims potentially

impacted by an order compelling Respondents to adopt

and apply a fee schedule have all been submitted, consid-

ered, approved, and paid (under the Congressionally-

discarded reasonable charge system). The only remaining

issue is whether those claims should have been paid under

a fee schedule, and that issue is the same for every sup-

plier who had claims conclusively approved under the old

reasonable charge system. No federal question relief could

possibly be granted to any claimant without a fee schedule

in place, and no fee schedule will ever exist without an

order directing Respondents to adopt one. No relief exists

but mandamus.

CONCLUSION

The petition for a writ of certiorari should be granted.

Review of the court of appeals decision is needed so that

the Court may address the significant jurisdictional issue

regarding the relationship between 42 U.S.C. § 405(h) and

28 U.S.C. § 1361; and, in doing so, thereby resolve the

conflict between the Eleventh Circuit and the nine other

circuits that have addressed this issue by holding that

§ 405(h) does not bar consideration of whether mandamus

jurisdiction exists.

Respectfuly submitted,

JAMES E. BUTLER, JR. MARLAN B. WILBANKS

Counsel of Record HARMON, SMITH, BRIDGES

JASON L. CRAWFORD & WILBANKS.

J. CLAY FULLER 1795 Peachtree Road, N.E.

DUSTIN T. BROWN Suite 350

BUTLER, WOOTEN, FRYHOFER, Atlanta, Georgia 30309

DAUGHTERY & CRAWFORD (404) 881-1200

105 Thirteenth Street JONATHAN H. WALLER

Columbus, Georgia 31901, wppett, WALLER & POER

(706) 322-1990 2100-A SouthBridge Pkwy.

G. CHRISTOPHER KELLY Suite 450

1795 Peachtree Road, N.E. Birmingham, Alabama

Suite 350 35209

Atlanta, Georgia 30309 (205) 803-0051

(404) 881-1200

365 F.3d 1293

United States Court of Appeals,

Eleventh Circuit.

LIFESTAR AMBULANCE SERVICE, INC.,

a Georgia corporation, individually and on behalf of a

class of all entities similarly situated, Coastal Medical

Transport, Inc., a North Carolina corporation, individually

and on behalf of a class of all entities similarly situated,

Ambulance Services, Inc., a Tennessee corporation,

individually and on behalf of a class of all entities

similarly situated, Plaintiffs-Appellees,

UNITED STATES of America, Department of Health

and Human Services, Tommy Thompson, in his official

capacity as Secretary/Director of D.H.H.S., Health Care

Financing Administration (Centers for Medicare &

Medicaid Services), Thomas A. Scully, in his official

capacity as Secretary/Director of H.C.F.A/C.M.S.,

Defendants-Appellants.

No. 03-11392.

April 16, 2004.

Jeffrey A. Clair, Washington, DC, for Defendants-

Appellants.

James E. Butler, Jr, Dustin Thomas Brown, Jason L.

Crawford, James Clay Fuller, Butler, Wooten, Overby &

Cheeley, Columbus, GA, G. Christopher Kelly, Atlanta,

GA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the

Middle District of Georgia.

Before ANDERSON, BLACK and HILL, Circuit

Judges.

HILL, Circuit Judge:

This case arises from a dispute over the Medicare

reimbursement rates for ambulance service suppliers. The

district court denied defendants’ motion to dismiss for

want of mandamus jurisdiction, entered summary judg-

ment on the merits for plaintiffs, and certified them as a

class. Defendants timely filed this appeal.

Plaintiffs are ambulance suppliers based in Georgia,

North Carolina, and Tennessee, who provide ambulance

services to Medicare recipients. They seek to bring a class

action against the Department of Health and Human

Services (“DHHS”), the Centers for Medicare and Medicaid

Services (formerly the Health Care Financing Administra-

tion), and individuals associated with those entities.

Plaintiffs allege that the federal defendants failed to

comply with the Balanced Budget Act of 1997 (“BBA”),

requiring them to establish by January 1, 2000, a national

fee schedule for payment of ambulance services. Pub.L.

No. 105-33, § 4531(b), 111 Stat. 451 (1997), codified at 42

U.S.C. § 1895m(1). They also allege that DHHS has failed

to timely implement certain mileage fee schedules as

required by the Medicare, Medicaid and SCHIOP Benefits

Improvement and Protection Act of 2000 (“BIPA”). Plain-

tiffs seek injunctive relief in the form of a writ of manda-

mus ordering DHHS to adopt fee schedules that comply

with those mandates, and to apply them retroactively to

services provided from January 1, 2000 forward.’

The federal defendants moved to dismiss this action

on the basis that plaintiffs failed to exhaust their adminis-

trative remedies as required by the Medicare Act. See 42

U.S.C. § 1395ff(b) and 42 U.S.C. § 1395ii. Both parties also

filed cross-motions for summary judgment on the merits.

The district court denied the motion to dismiss,

holding that the mandamus jurisdiction invoked by

plaintiffs under 28 U.S.C. § 1361 is both available and

appropriate in this case, thereby obviating the necessity

for them to exhaust their claims administratively. The-

court then entered summary judgment for plaintiffs on the

merits of their claim, issuing a writ of mandamus to the

Secretary of Health and Human Services (the “Secretary”)

to implement a fee schedule for the relevant time period,

and certifying a class of ambulance providers.’

* Because we do not reach the merits of this case, we do not

consider how the federal defendants might be ordered to comply with a

statutory mandate (budget neutrality) now impossible to meet.

* The district court questioned why it should certify a class since

the relief sought would be obtained by individual plaintiffs applying for

payment under the rate schedule ordered by the court to be imple-

mented by the DHHS with recourse to administrative review in the

event of disputes. Apparently, however, the court adopted the plaintiffs’

argument that the implementation of the retroactive fee schedule would

“create an entitlement to a substantial fund” and that it could “retain

jurisdiction to determine whether [DHHS] complied with the Court’s

order.” The court also noted the relevance of the certification to the

issue of attorneys’ fees, stating “I understand that down the road, if the

plaintiffs’ counsel has produced a substantial result, then yon still get

paid, presumably, even if there’s not a big damage award that the Court

has to divvy up.” R.E. 32-34.

The threshold issue we must decide is whether the

district court correctly assumed mandamus jurisdiction

over this action, since, in the absence of subject-matter

jurisdiction, we may not proceed. We review the district

court’s determination that it had mandamus jurisdiction

under 28 U.S.C. § 1361 de novo. Cash v. Barnhart, 327

F.3d 1252, 1255 n. 4 (11th Cir. 2003).

II.

Mandamus jurisdiction is appropriate’ only where (1)

the defendant owes a clear nondiscretionary duty to the

plaintiff and (2) the plaintiff has exhausted all other

avenues of relief. Heckler v. Ringer, 466 U.S. 602, 615, 104

S.Ct. 2013, 80 L.Ed.2d 622 (1984). The district court held

that plaintiffs satisfied both of these preconditions for

invoking mandamus jurisdiction under Section 1361. We

disagree.

Plaintiffs cannot invoke the extraordinary remedy of

mandamus because they have an alternative “avenue of

relief.” Mallard v. U.S. District Court, 490 U.S. 296, 309,

109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). The Medicare Act

establishes a comprehensive remedial scheme, providing

> We assume, without deciding, that mandamus jurisdiction is not

barred by 42 U.S.C. § 405(h) and, therefore, is available for a claim

arising under the Medicare statute. See Buchanan v. Apfel, 249 F.3d

485, 491-92 (6th Cir. 2001); Cordoba v. Massanari, 256 F.3d 1044, 1047

(10th Cir. 2001); Monmouth Med. Ctr. v. Thompson, 257 F.3d 807, 813

(D.C. Cir. 2001); United States ex rel. Rahman v. Oncology Associates,

PC., 198 F.3d 502, 515 (4th Cir. 1999); Briggs v. Sullivan, 886 F.2d

1132, 1142 (9th Cir. 1989); Burnett v. Bowen, 830 F.2d 731, 736-38 (7th

Cir. 1987); City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir. 1984),

Belles v. Schweiker, 720 F.2d 509, 512-13 (8th Cir. 1983); Colonial Penn

Ins. Co. v. Heckler, 721 F.2d 431, 437 n. 2 (3d Cir. 1983).

both administrative hearing rights for aggrieved provid-

ers, such as plaintiffs, and judicial review of the Secre-

tary’s final decisions. Ringer, 466 U.S. at 605-06 and n. 1,

104 S.Ct. 2013 (quoting 42 U.S.C. § 405(g)). The Supreme

Court has made clear that “[o]rdinarily mandamus may

not be resorted to as a mode of review where a statutory

method of appeal has been prescribed.” Roche v. Evapo-

rated Milk Ass’n, 319 U.S. 21, 27-28, 63 S.Ct. 938, 87 L.Ed.

1185 (1943).

It is undisputed that plaintiffs did not resort to these

administrative remedies. They filed no claim with DHHS

for payment under the fee schedule required by the BBA

and BIPA. Plaintiffs contend, however, and the district

court agreed, that Medicare’s administrative remedies

were “realistically [unJavailable” to plaintiffs because “the

relief sought by the Plaintiffs in this case could not be

secured in the administrative process.” The government’s

suggestion to the contrary, the court concluded, “ignores

reality.”

The reality, however, is that the Medicare statute

“demands the ‘channeling’ of virtually all legal attacks

through the [DHHS]” before a health care provider may

seek judicial review of a claim arising under the Medicare

statute. Shalala v. Illinois Council on Long Term Care,

529 U.S. 1, 13, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000).° This

* Plaintiffs argued that, because no ALJ could compel the Secretary

to alter the effective date of the fee schedule regulations, resort to

Medicare’s administrative review precedures would be futile.

* Although the exhaustion requirement may be waived, see

Mathews v. Eldridge, 424 U.S. 319, 330-32 & n. 11, 96 S.Ct. 893, 47

L.Ed.2d 18 (1976), plaintiffs cannot meet any of the three requirements

for waiver, including that they show irreparable injury if forced to

exhaust. See Sampson v. Murray, 415 U.S. 61, 90-91, 94 S.Ct. 937, 39

(Continued on following page)

“nearly absolute channeling requirement” serves impor-

tant governmental interests in administrative efficiency

and judicial economy, and “assures the agency greater

opportunity to apply, interpret, or revise policies, regula-

tions, or statutes.” Id. at 2, 120 S.Ct. 1084.

Nor is Medicare’s statutory exhaustion requirement

subject to judge-made exceptions on a case by case basis

when a particular court might find the requirement too

burdensome or futile. Jd. at 2, 120 S.Ct. 1084 (405[h]’s bar

“reaches beyond ordinary administrative law principles of

‘ripeness’ and ‘exhaustion of administrative remedies’...

by preventing the application of exceptions to those

doctrines”). As we noted in Cochran v. U.S. Health Care

Financing Admin., 291 F.3d 775, 780 (11th Cir. 2002):

It is true that in some contexts, administrative

exhaustion requirements are tempered by judge-

made exceptions, chief among which are that ex-

haustion of administrative remedies sometimes

is not required if resort to them would be futile,

or if the remedy they offer is inadequate. Those

judge-made exceptions do not apply, however, to

a statutorily-mandated exhaustion requirement

like [Medicare’s].

See also Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir.

1998) (“Mandatory exhaustion is not satisfied by a judicial

conclusion that the requirement need not apply”).

Ultimately, the issue in this case is whether the claim of

mandamus jurisdiction accomplishes the nullification of

Medicare’s exhaustion requirement by permitting plaintiffs

L.Ed.2d 166 (1974) (recoverable monetary loss does not constitute

irreparable injury).

to argue that they have no other avenue of relief because

resort to administrative remedies is “futile.” Thus, under

the authority of mandamus, the doctrine of judge-made

exceptions to administrative exhaustion is resurrected.°

Plaintiffs’ view of the propriety of mandamus jurisdic-

tion is that it is directly related to the likelihood that they

will prevail administratively. In their view, as the likeli-

hood that they will prevail before the administrative

hearing officer goes down, the requirement that they

appear before him also diminishes. Because no hearing

officer could compel the Secretary to issue new fee sched-

ule regulations or declare invalid the regulations in effect

now, plaintiffs characterize their chances for administra-

tive relief as “hopeless.” This leads them to conclude that

their administrative remedies are “inadequate,” thus

entitling them to invoke the district court’s mandamus

jurisdiction. It is not the availability of the administrative

avenue of relief that figures prominently in their calcula-

tion of its impact on mandamus jurisdiction, but rather

the attractiveness of it in comparison to mandamus juris-

diction.’

* This would be so at least where plaintiff’s right to relief is clear.

” We have reviewed the record and find no support for plaintiffs’

contentions that the Secretary barred them from challenging imple-

mentation of the fee schedule provisions in the administrative process.

The manual provision to which they cite was addresses [sic] only to the

agency's carriers and intermediaries, i.e., to the agency’s initial claims

processors, not to the agency’s ALJ’s. It did not preclude any plaintiff

from arguing, in an administrative appeal from an initial payment

decision, that the Secretary had an obligation to promulgate and apply

a fee schedule. Nor did it prevent individual plaintiffs from submitting

fee schedule claims in the administrative process; some who did so

obtained relief similar to that sought by plaintiffs here. See Highlander

Ambulance, Adm. Docket No. 999-17-9983 (July 16, 2002).

This calculus was rejected by the Supreme Court

twenty years ago when it held that mandamus jurisdiction

does not lie merely because resort to the administrative

process appears futile. Ringer, 466 U.S. at 616-17, 104

S.Ct. 2013. In Ringer, the Secretary had issued a formal

ruling holding that a particular surgical procedure was

still experimental and thus could not be covered by Medi-

care. This ruling was binding upon the administrative

hearing officers, and, thus, the Ringer plaintiffs contended

that administratively contesting the denial of coverage

was futile. They concluded that mandamus relief was,

therefore, permissible because they had no “alternative

avenue of relief.”

The Court rejected this argument, holding that

alleged limitations on the remedial powers of the hearing

officers does not render Medicare’s administrative reme-

dies a nullity. Jd. at 616-17. The Court held that the

plaintiffs there “clearly have an adequate remedy” under

Medicare, including administrative hearing and juridical

review of any adverse final decision rendered for whatever

reason. Id. The Court concluded that no writ of mandamus

could properly issue because mandamus “is intended to

provide a remedy for a plaintiff only if he has exhausted

all other avenues of relief.” Jd. at 616.

The Supreme Court has recently reaffirmed the

immunity of Medicare’s exhaustion requirement to the

allegation of futility. Illinois Council, 529 U.S. at 2, 120

S.Ct. 1084. In Illinois Councii, the Court held that, despite

the fact that some claims, such as constitutional or statu-

tory challenges, cannot be resolved administratively, they

must still proceed first through the administrative proc-

ess. 529 U.S. at 23-24, 120 S.Ct. 1084. Such claims are

subject to plenary judicial review under the Medicare

remedial scheme only after the administrative review

process has been exhausted. Jd. As the Court concluded:

The fact that the agency might not provide a

hearing for that particular contention, or may

lack the power to provide one ... is beside the

point because it is the “action” arising under the

Medicare Act that must be channeled through

the agency. After the action has been so chan-

neled, the court will consider the contention

when it later reviews the action. And a court re-

viewing an agency determination under § 405(g)

has adequate authority to resolve any statutory

or constitutional contention that the agency does

not, or cannot, decide, including, where neces-

sary, the authority to develop an evidentiary re-

cord.

Id. (internal citations and quotations omitted). Illinois

Council, thus, expressly holds that the vitality of the

exhaustion requirement is not vitiated by statutory claims

that cannot be resolved initially at the administrative

level. Id.

Illinois Council teaches the importance of distinguish-

ing between administrative relief and an administrative

remedy. The fact that plaintiffs may not be able to secure

the relief they seek at the administrative hearing stage of

their claim does not mean that the Act’s remedial struc-

ture, which includes plenary judicial review, does not

provide an adequate remedy. Jd. Plaintiffs have cited no

case, and we know of none, that says that a statutory

avenue of review may be deemed “inadequate” for pur-

poses of invoking mandamus jurisdiction merely because

full relief must await judicial review of a final administra-

tive decision.

10a

To ensure that mandamus remains an extraordinary

form of relief and not a strategy for avoiding administra-

tive exhaustion, plaintiffs must clearly demonstrate that

they have no alternative means to obtain the relief they

seek. Mallard, 490 U.S. at 309, 109 S.Ct. 1814. Here all

plaintiffs have shown is that they are unlikely to win their

preferred relief at the preliminary, administrative stage of

an otherwise adequate remedy.”

Exhaustion of administrative remedies, however, is

not a strategic option, but rather a statutory requirement.

Mandamus does not lie, as plaintiffs assert, merely be-

cause “the administrative process is fundamentally ill

equipped to resolve this claim.”

“Mandamus is an extraordinary remedy and will not

lie if other remedies are available.” In re United States,

985 F2d 510, 511 (11th Cir. 1993). Medicare’s statutory

remedial scheme provides for administrative review

followed by plenary judicial review. In the face of this

comprehensive statutory scheme, it cannot be said that

the second requirement for mandamus review — that there

be no alternative avenues of relief — is met.

Both Ringer and Illinois Council make clear that the

fact that an agency’s administrative review, by itself,

might not afford the relief claimed, does not excuse the

jurisdictional requirements of presentment and exhaus-

tion of administrative remedies. The administrative

review provided by Medicare’s administrative hearing

* The fact that an alternative to “busting the budget,” an outcome

the district court acknowledged might result from its injunction, may be

worked out during the administrative process is one of the governmen-

tal interests underlying the statutory requirement for exhaustion.

lla

officers is but the first step in a comprehensive statutory

remedial scheme that fully empowers a reviewing court to

consider and remedy any of the violations of law alleged by

plaintiff here. In view of the controlling authority that

postponement of judicial review does not amount to a

preclusion of review, plaintiffs may not avail themselves of

mandamus jurisdiction where there is “another means to

obtain adequate review.” Therefore, we hold that the

district court did not have mandamus jurisdiction and

shall reverse the district court’s entry of judgment under

that authority.

III.

The denial of the motion to dismiss is REVERSED

and the judgment of the district court is VACATED. This

case is remanded with instructions to dismiss for want of

subject-matter jurisdiction.

12a

211 F.R.D. 688

United States District Court,

M.D. Georgia,

Columbus Division.

LIFESTAR AMBULANCE SERVICE, INC., individually

and on behalf of a class of all entities similarly situated;

Coastal Medical Transport, Inc., individually and

on behalf of a class of all entities similarly situated;

Ambulance Services, Inc., individually and on behalf

of a class of all entities similarly situated, Plaintiffs,

Vv.

UNITED STATES of America; the Department of Health

and Human Services; Tommy Thompson in his official

capacity as Secretary/Director of DHHS; the Health Care

Financing Administration (Centers for Medicare &

Medicaid Services); and Thomas A. Scully in his official

capacity as Secretary/Director of HCFA/CMS, Defendants.

No. 4:02-CV-127-1(CDL).

Jan. 16, 2003.

Marlan B. Wilbanks, G. Christopher Kelly, Atlanta,

GA, James E. Butler, Jr., James Clay Fuller, Dustin T.

Brown, Columbus, GA, Jason Lance Crawford, Columbus,

GA, Jonathan H. Waller, Birmingham, AL, for plaintiffs.

Daniel Bensing, Sheila Lieber, Federal Programs

Branch, Washington, DC, Brendan F. Flanagan, Colum-

bus, GA, for defendants.

ORDER

LAND, District Judge.

The Court presently has pending before it Defendants’

Motion to Dismiss, Defendants’ Motion for Summary

13a

Judgment, Plaintiffs’ Motion for Summary Judgment, and

Plaintiffs’ Motion for Class Certification. These motions

have been fully briefed and argued by the parties. The

Court finds that it has subject matter jurisdiction of this

case and that Plaintiffs are entitled to a writ of mandamus

as a matter of law. Accordingly, Defendants’ Motion to

Dismiss and Motion for Summary Judgment are denied,

and Plaintiffs’ Motion for Summary Judgment is granted

in part.’ The Court also finds that a Rule 23(b)(2) class

should be certified, and therefore, Plaintiffs’ Motion for

Class Certification is granted.

I. FACTUAL BACKGROUND

This case arises from a dispute over the Medicare

reimbursement rates for ambulance service suppliers. The

named Plaintiffs, three ambulance suppliers based in

Georgia, North Carolina, and Tennessee who provide

ambulance services to Medicare recipients, bring this

putative class action against the Department of Health

and Human Services (“DHHS”), the Centers for Medicare

and Medicaid Services (formerly the Health Care Financ-

ing Administration), and individuals associated with those

entities. Plaintiffs’ Complaint focuses upon Defendants’

alleged failure to comply with congressional mandates

establishing the effective dates for certain fee schedules.

Plaintiffs contend that DHHS ignored the clear

direction of Congress, as expressed in the Balanced

' Plaintiff’s Motion for Summary Judgment, as originally filed,

requested the Court to find that they were entitled to payment under a

lawful fee schedule — in other words, Plaintiffs sought damages and not

merely injunctive relief. At this time, Plaintiffs do not assert a claim for

damages but only seek declaratory and mandamus relief.

Re on >

14a

Budget Act of 1997 (“BBA”), by failing to adopt a fee

schedule applying to ambulance services furnished from

January 1, 2000, through March 31, 2002. Plaintiffs also

maintain that DHHS has failed to properly implement

certain mileage fee schedules applicable to services pro-

vided from July 1, 2001, through March 31, 2002, as

required by the Medicare, Medicaid and SCHIP Benefits

Improvement and Protection Act of 2000 (“BIPA”). Plain-

tiffs seek injunctive relief ordering DHHS to adopt a fee

schedule covering ambulance services supplied to Medi-

care recipients as described in the BBA and a fee schedule

for mileage as required by the BIPA during the time

periods just described.

The Medicare Act, 42 U.S.C. § 1395 et seq., creates a

health insurance program for elderly and disabled indi-

viduals. The program is administered by the Centers for

Medicare and Medicaid Services (formerly the Health Care

Financing Administration), on behalf of the Secretary of

DHHS, who is ultimately responsible for the program.

Medicare Part A authorizes payments for covered inpa-

tient hospital treatment and related services, including

skilled nursing home care. Part B, which is applicable in

this case, authorizes payment for covered items and

services provided to individuals such as physicians’ treat-

ment, clinical laboratory tests, or durable medical equip-

ment. Part B also covers and pays for ambulance services,

including those provided by ambulance service suppliers

like Plaintiffs. See e.g., Supplementary Medical Insurance

(SMI) Benefits, 42 C.FR. § 410.10(i) (2001). Plaintiffs

contend that Congress specified a time frame during

which payments for services furnished to Medicare pa-

tients and for certain mileage should be paid in accordance

with the fee schedule provisions of the BBA and BIPA.

15a

Plaintiffs further contend that DHHS failed to use the

appropriate fee schedule in making payments during that

period contrary to the expressed intention of Congress. To

fully understand Plaintiffs’ claims, a brief review of the

evolution of the methodology for reimbursing ambulance

suppliers under the Medicare Act is helpful.

A. Methodology Prior to the Adoption of the BBA

Traditionally, Medicare paid for ambulance services

furnished by suppliers on a “reasonable charge” basis. See

Medicare Program; Fee Schedule for Payment of Ambu-

lance Services and Revisions to the Physician Certification

Requirements for Coverage of Nonemergency Ambulance

Services, 65 Fed.Reg. 55,078, 55,078 (proposed Sept. 12,

2000) (to be codified at 42 C.F.R. pts. 410 & 414). A “rea-

sonable charge” for ambulance services is determined by

the lowest of the customary, prevailing, actual, or inflation

indexed charges. Jd. Under the “reasonable charge”

methodology, different billing and payment methods were

in use in different localities. Some methods provided

separate charges for items such as individual services,

mileage, and supplies. In contrast, one method provided a

single, all-inclusive charge for all services, mileage, and

supplies. Id.

B. Fee Schedule Under BBA Effective January 1, 2000

In 1997, as part of the BBA, Congress mandated the

establishment of a “national” ambulance fee schedule for

ambulance services to be paid for under Medicare. Con-

gress required that the fee schedule create more equitable

payments for similar services performed in different

locations and that it be designed to replace the previous

16a

“reasonable charge” methodology. In enacting the BBA,

Congress explicitly provided that the fee schedule adopted

by DHHS “shall apply to services furnished on or after

January 1, 2000.” Pub.L. No. 105-33, § 4531(b)(2) & (3)

(codified in part at 42 U.S.C. §1395m(1)) (emphasis

added).

Pursuant to the BBA, DHHS adopted a fee schedule

on February 27, 2002, but applied it only to services

furnished on or after April 1, 2002, over two years after

the effective date mandated by Congress. See generally

Medicare Program; Fee Schedule for Payment of Ambu-

lance Services and Revisions to the Physician Certification

Requirements for Coverage of Nonemergency Ambulance

Services, 67 Fed.Reg. 9,100, 9,100 (Feb. 27, 2002) (to be

codified at 42 C.F.R. pts. 410 & 414). Plaintiffs contend

that they, along with the other members of the putative

class, are entitled to have a fee schedule implemented that

applies to services furnished from January 1, 2000, to

March 31, 2002, under the terms of the BBA.’ Thus, they

seek injunctive relief ordering Defendants to implement

such a fee schedule.

* Plaintiffs, apparently recognizing that DHHS has some discretion

in developing the fee schedule, do not seek an order requiring DHHS to

apply retroactively the fee schedule it implemented for services

supplied on or after April 1, 2002. Plaintiffs simply seek an order

requiring Defendants to adopt a fee schedule covering the period

January 1, 2000, through March 31, 2002, as mandated by the BBA.

Presumably, if Defendants implemented a fee schedule that failed to

comply with the Court’s order and/or the intent of Congress, Plaintiffs

would seek further relief from the Court at the appropriate time.

17a

C. BIPA Change in Payment of In-County Miles

In addition to the changes in reimbursement fee

schedules enacted as part of the BBA, Congress also

addressed inequities inherent in compensating ambulance

suppliers under the reasonable charge methodology by

enacting the BIPA in 2000. Pub.L. No. 106-554, § 423(b)(2),

114 Stat. 2763 (codified in part at 42 U.S.C.

§ 1395m(1)(2)(E) (2000)). The BIPA provided, in relevant

part, that certain ambulance suppliers that had previously

not received mileage payments for miles traveled in their

home county should begin receiving compensation for

those miles. 42 U.S.C. § 1895m(1)(2)(E). Congress made

this provision applicable to services furnished on or after

July 1, 2001. Medicaid, Medicare and SCHIP Benefits

Improvement and Protection Act of 2000 § 423(b)(2). These

mileage reimbursement changes only applied to certain

states, including Tennessee and North Carolina, the

homes of two of the named Plaintiffs in this litigation —

Ambulance Transport Services, Inc. and Coastal Medical

Transport, Inc., respectively. Notwithstanding the clear

congressional mandate that the mileage provisions of the

BIPA be applied to services furnished on or after July 1,

2001, DHHS adopted a fee schedule and applied it only to

services furnished on or after April 1, 2002. Therefore,

Plaintiffs Ambulance Transport Services, Inc. of Tennessee

and Coastal Medical Transport, Inc. of North Carolina,

along with others similarly situated, were not paid for

mileage traveled in their home counties as required by the

BIPA for the period July 1, 2001, through March 31, 2002.

These Plaintiffs seek injunctive relief requiring that

Defendants implement the BIPA mileage provisions to

apply to services provided between July 1, 2001, and

March 31, 2002, as required by the BIPA.

18a

II. DISCUSSION

A. Defendants’ Motion to Dismiss

Defendants preliminarily move to dismiss Plaintiffs’

Complaint for lack of subject matter jurisdiction on the

basis that Plaintiffs have failed to exhaust their adminis-

trative remedies under the Medicare Act.” It is undisputed

that Plaintiffs have not availed themselves of any of the

administrative remedies provided for under the Medicare

Act. Plaintiffs contend that their claims do not “arise

under” the Medicare Act but instead arise under the BBA

and BIPA, and therefore, the Medicare Act’s exhaustion of

remedies requirement is not applicable. Plaintiffs alterna-

tively argue that the Medicare Act’s exhaustion of reme-

dies requirement has no application to their claim for

mandamus relief.

Pretermitting whether Plaintiffs’ claims “arise under”

the Medicare Act, the Court finds that given the unique

circumstances of this case, Plaintiffs’ claim for mandamus

relief does not require them to exhaust administrative

remedies provided for under the Medicare Act. See 28

U.S.C. § 1361 (“The district courts shall have original

jurisdiction of any action in the nature of mandamus to

compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.”).

Unlike other forms of subject matter jurisdiction, manda-

mus relief under § 1361 is not explicitly excluded from

judicial review by § 405(h) of the Medicare Act. Conse-

quently, Plaintiffs’ failure to exhaust administrative

* Section 405(h) of the Medicare Act precludes federal court

jurisdiction for claims “arising under the Act,” until the aggrieved party

has exhausted its administrative remedies. 42 U.S.C. § 405(h).

19a

remedies under the Medicare Act does not deprive the

Court of subject matter jurisdiction over Plaintiffs’ man-

damus claims.‘ Accordingly, Defendants’ Motion to Dismiss

based upon lack of subject matter jurisdiction is denied.”

B. The Parties’ Motions for Summary Judgment

The parties agree that the issues to be resolved in this

case should be resolved as a matter of law because no

genuine issues of material fact exist to be tried. Accord-

ingly, summary judgment is the appropriate procedural

vehicle for deciding this case. See Fed.R.Civ.P. 56(c). The

issue presented is whether Plaintiffs or Defendants are

entitled to judgment as a matter of law on Plaintiffs’

mandamus claim. Mandamus is an extraordinary equita-

ble remedy that requires a substantial showing by the

plaintiff. As the Eleventh Circuit has stated, “Mandamus

“ The Court acknowledges that the Eleventh Circuit has not yet

addressed this issue. However, several other circuits have found

mandamus jurisdiction appropriate in cases involving claims ostensibly

governed by 42 U.S.C. § 405(h), noting that mandamus jurisdiction is

not listed among the other forms of subject matter jurisdiction specifi-

cally precluded absent exhaustion of administrative remedies. See

Buchanan v. Apfel, 249 F.3d 485, 491-92 (6th Cir. 2001); Cordoba v.

Massanari, 256 F.3d 1044, 1047 (10th Cir. 2001); Monmouth Med. Ctr. v.

Thompson, 257 F.3d 807, 813 (D.C. Cir. 2001); United States ex rel.

Rahman v. Oncology Assocs., P-C., 198 F.3d 502, 515 (4th Cir. 1999);

Briggs v. Sullivan, 886 F.2d 1132, 1142 (9th Cir. 1989); Burnett v.

Bowen, 830 F.2d 731, 736-38 (7th Cir. 1987); City of New York v. Heckler,

742 F.2d 729, 739 (2d Cir. 1984); Ganem v. Heckler, 746 F.2d 844, 850-52

(D.C. Cir. 1984); Belles v. Schweiker, 720 F.2d 509, 512-13 (8th Cir.

1983); Colonial Penn Ins. Co. v. Heckler, 721 F.2d 431, 437 n. 2 (3d Cir.

1983); Ellis v. Blum, 643 F.2d 68, 82 (2d Cir. 1981).

* Insofar as Defendants seek to dismiss Plaintiffs’ Complaint on

non-jurisdictional grounds, Defendants’ Motion to Dismiss is denied for

the same reasons that Defendants’ Motion for Summary Judgment is

denied. See infra Part B.

ra nate

20a

is an extraordinary remedy and will not lie if other reme-

dies are available.” In re United States, 985 F.2d 510, 511

(11th Cir. 1993); see also George Kabeller, Inc. v. Busey, 999

F.2d 1417, 1423 (11th Cir. 1993); Dist. Lodge No. 166, Intl

Assoc. of Machinists and Aerospace Workers, AFL-CIO uv.

TWA Servs., Inc., 731 F.2d 711, 717 (11th Cir. 1984).

Mandamus relief is appropriate when (1) the defendant

owes a clear nondiscretionary duty to the plaintiff and (2)

the plaintiff has exhausted all other avenues of relief.

Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80

L.Ed.2d 622 (1984).

1. Nondiscretionary Duty

The Court finds that the BBA unequivocally required

DHHS to develop a new fee schedule applicable to services

furnished on or after January 1, 2000. Balanced Budget

Act of 1997, Pub.L. No. 105-33, § 4531(b)(2) & (3), 111 Stat.

451 (1997) (codified in part at 42 U.S.C. § 1395m(1)). The

Court also finds that Congress plainly stated in the BIPA

that changes in the payment of in-county mileage would

apply to services furnished on or after July 1, 2001. Medi-

care, Medicaid and SCHIP Benefits Improvement and

Protection Act of 2000, Pub.L. No. 106-554, § 423(b)(2), 114

Stat. 2763 (codified in part at 42 U.S.C. § 1395m(1)(2)(E)

(2000)). Congress left no room for DHHS to exercise its

discretion to alter the effective dates of these statutory

provisions. When an executive agency or department is

charged with implementing a congressional enactment

through the regulatory process and Congress’ intent is clear,

no room for interpretation exists. No excuses allow the

agency to avoid compliance. Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778,

81 L.Ed.2d 694 (1984) (“If the intent of Congress is clear,

2la

that is the end of the matter; for the Court, as well as the

agency, must give effect to the unambiguously expressed

intent of Congress.”). In both the BBA and BIPA, the

intent of Congress is clear: a fee schedule for ambulance

services “shall apply to services furnished on or after

January 1, 2000,” and a fee schedule for in-county mileage

“shall apply to services furnished on or after July 1, 2001.”

Balanced Budget Act of 1997, § 4531(b)(3); Medicare,

Medicaid and SCHIP Benefits Improvement and Protec-

tion Act, § 423(b)(2). “[T]hat is the end of the matter.”

Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778°

Notwithstanding this clear nondiscretionary duty to

follow the law and develop a fee schedule applicable to

services provided subsequent to January 1, 2000, DHHS

ignored the congressional mandate and promulgated a fee

schedule to apply to services furnished on or after April 1,

2002. See Medicare Program; Fee Schedule for Payment of

Ambulance Services and Revisions to the Physician Certifi-

cation Requirements for Coverage of Nonemergency Ambu-

lance Services, 67 Fed.Reg. at 9,100. DHHS likewise

ignored Congress’ mandate that the in-county mileage

changes provided by the BIPA be applied for services

furnished after July 1, 2001, and instead unilaterally

made the fee schedule effective for services provided on or

after April 1, 2002. See id.

DHHS simply does not have the authority to legislate

an effective date different than that provided by Congress.

* See Lexecon, Inc. v. Milberg Weiss Bers! oi Hynes & Lerach, 523

U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (“[T]he mandatory

‘shall,’ ... normally creates an obligation impervious to judicial discre-

tion.”) (citing Anderson v. Yx.ugkau, 329 U.S. 482, 483, 67 S.Ct. 428, 91

L.Ed. 436 (1947)).

22a

The rule-making power granted to an administrative

agency charged with the administration of a federal

statute is not the power to make law. Rather, it is the

power to adopt regulations to carry into effect the will of

Congress. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-

14, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); Dixon v. United

States, 381 U.S. 68, 74, 85 S.Ct. 1301, 14 L.Ed.2d 223

(1965); Manhattan Gen. Equip. Co. v. Commr, 297 US.

129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936). Regulations

must “be consistent with the statute under which they are

promulgated.” United States v. Larionoff, 431 U.S. 864,

873, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977). An administra-

tive regulation that fails to carry into effect the will of

Congress, and instead operates to void or repeal the

express terms of the statute, is a nullity. Dixon, 381 U.S.

at 74, 85 S.Ct. 1301. Because the effective dates for the fee

schedules promulgated by DHHS flatly contradict the

expressed intent of Congress, DHHS has failed in its

nondiscretionary duty to adopt a regulation that effectu-

ates the will of Congress.’

7 The relevant language in both the BBA and BIPA is unambiguous

and expresses the clear intent of Congress that the new fee schedules

enacted pursuant to both Acts are to apply to services rendered after a

date certain. See, Balanced Budget Act of 1997, Pub.L. No. 105-33,

§ 4531, 111 Stat. 451 (1997) (codified in part at § 42 U.S.C 1395m(1))

(“The amendments made by this subsection [providing for the promul-

gation of a new fee schedule for ambulance services] shall apply to

services furnished on or after January 1, 2000.”) (emphasis added),

Medicare, Medicaid and SCHIP Benefits Improvement and Protection

Act of 2000, Pub.L. No. 106-554, § 423, 114 Stat. 2763 (codified in part

at 42 U.S.C. § 1395m(1)(2)E) (2000)) (“The amendment made [to the

provisions for paying for certain ambulance mileage] shall apply to

services furnished on or after July 1, 2001.”) (emphasis added).

23a

2. Exhaustion of Other Avenues of Relief

Having found that Defendants violated a nondiscre-

tionary duty, the Court must next evaluate whether

Plaintiffs have exhausted all other avenues of relief.

Defendants contend that Plaintiffs must submit their

claims to DHHS and pursue any appeal administratively

prior to invoking the mandamus jurisdiction of this Court.

Although Defendants correctly point out that exhaustion

of other available avenues of relief is a precondition for

seeking mandamus relief, the question is not simply

whether Plaintiffs have completed the administrative

process. The question is whether “there is another means

to obtain adequate review.” In re Bethesda Mem1 Hosp.,

Inc., 123 F.3d 1407, 1408 (11th Cir. 1997). The Court must

determine whether the administrative process to which

the Government insists Plaintiffs and putative class

members must resort is realistically available to Plaintiffs.

When “bureaucratic red tape strangles a provider’s right

to judicial review, the Court may invoke its federal ques-

tion jurisdiction and mandamus power.” Mem7 Hosp. v.

Sullivan, 779 F. Supp. 1410, 1412 (D.D.C. 1991).

The Court finds that the relief sought by the Plaintiffs

in this case could not be secured in the administrative

process. Plaintiffs seek the implementation of fee sched-

ules complying with the clear intent of Congress. Achiev-

ing this result will require either amending the current fee

schedule so that it will apply to the time periods directed

by Congress, or adopting a new fee schedule that applies

to the relevant time frame and that complies with all the

conditions set out by Congress in the BBA and BIPA. It is

doubtful that an administrative law judge has the author-

ity to order DHHS to rewrite its regulations to conform to

24a

the direction of Congress. Thus, Plaintiffs are seeking

relief that could not be obtained administratively.

The Court also finds that even if an administrative

law judge had the authority to grant the type relief re-

quested by Plaintiffs in this case, such relief would not be

available under the unique circumstances of this case.

Every underlying claim potentially impacted by an order

directing DHHS to adopt and apply a lawful fee schedule

has already been submitted, considered, approved, and

paid under the previous “-easonable charge” methodology.

Requiring suppliers who suspected that they may have

benefitted from a “national fee schedule” not yet adopted

to file an administrative challenge to preserve their legal

rights ignores reality.

Prior to February 27, 2002, suppliers like Plaintiffs

were in what Defendants’ counsel described at oral argu-

ment as a “twilight zone” regarding the availability of

administrative relief. On one hand, Plaintiffs and the

other putative class members were aware that the BBA

and BIPA provided for fee schedules applying to services

provided after January 1, 2000, and July 1, 2001, respec-

tively. On the other hand, they had no fee schedule on

which to base any claim that they might dispute before

DHHS or an administrative law judge. It was not until

February 27, 2002, that the Government revealed the

content of the fee schedule and its intention to apply the

new fee schedule only to services furnished on or after

April 1, 2002. See 67 Fed.Reg. at 9,100.

Prior to February 27, 2002, it would have made no

sense for members of the prospective class to do what the

Government now says they should have done. The Gov-

ernment recognizes as much: “Until the final rule was in

25a

effect, the ambulance providers and suppliers and provid-

ers [sic] simply had no expectation of what the ambulance

fee schedule would provide as payment... .” (Defs.’ Mem.

Opp’n Pls.’ Mot. Summ. J. at 13). Nothing could have been

achieved by filing an administrative claim challenging the

amounts paid for every service rendered based on the

argument that a fee schedule that did not exist would pay

them more than the Government had paid. An administra-

tive law judge would have been baffled by such a request.

He or she would have had no idea what amount was due,

even if the administrative law judge could have ruled that

the supplier was correct about the legal issue upon which

their arguments are based.

The Court also notes that the Government’s conduct

since adopting the regulation has reinforced the futility of

requiring suppliers to resort to the administrative process.

Specifically, DHHS, through a program memorandum, has

directed its carriers not to accept resubmitted claims for

services furnished prior to April 1, 2002. See DHHS

Program Memorandum Intermediaries/Carriers, at http://

www.cms.hhs.gov/manuals/pm_trans/AB02129.pdf (Sept.

27, 2002) (“Claims with a date of service prior to April 1,

2002, may not be resubmitted for processing under the

new ambulance fee schedule guidelines.”). By ordering the

carriers not to accept claims from the relevant time frame

for resubmission, DHHS has barred the door to the very

process it claims that Plaintiffs should have invoked.

It has been recognized that an agency should not

“relegate providers to a dead-end procedure under the

Medicare statute, and then argue that the provider loses

because the Medicare statute is the exclusive means of

redress.” Mem Hosp., 779 F. Supp. at 1412 (citing Beverly

Hosp. v. Bowen, 872 F.2d 483, 486-87 (D.C. Cir. 1989)).

ee ‘-

26a

Plaintiffs seek to compel Defendants to adopt and apply a

legal fee schedule consistent with the mandate of Con-

gress. The administrative process cannot grant this relief.

Furthermore, Defendants have no discretion in the per-

formance of the duty to enact regulations consistent with

the statute authorizing the regulations. Any entitlement to

additional reimbursement amounts caused by the applica-

tion of a fee schedule to services furnished in the relevant

time frame would flow directly from an order compelling

Defendants to follow the law.

The Court refuses to penalize Plaintiffs for failing to

invoke an administrative process that (1) is forever inca-

pable of providing the relief they seek, (2) was effectively

unavailable to Plaintiffs prior to the announcement of the

fee schedule, and (3) is now unavailable to Plaintiffs

because of the actions of Defendants in ordering carriers

not to accept resubmitted claims for services furnished in

the relevant time frame. Accordingly, the Court finds that

Plaintiffs have exhausted all other avenues of available

relief for purposes of invoking the Court’s mandamus

jurisdiction.

3. Defendants’ Excuses for Failing to Follow the Law

With the audacity of someone possessing the mistaken

belief that they occupy a position of unchecked power,

Defendants implicitly argue that they are above the law.

Essentially, Defendants complain that their own failure to

follow the law regarding the fee schedule implementation

dates will cause them future difficulties if they are forced

at this time to follow the law. The Court rejects Defen-

dants’ excuses for the reasons set forth below.

27a

a. “Budget Neutrality”

Defendants first seek to be rescued by the so-called

“budget neutrality” provision of the BBA. That provision

states in relevant part:

In establishing such fee schedule, the Secretary shall

(A) ensure that the aggregate amount of pay-

ments made for ambulance services under this

part during 2000 (2001, 2002] does not exceed

the aggregate amount of payments which would

have been made for such services [under the rea-

sonable charge methodology au’usted for infla-

tion].

42 U.S.C. § 1395m(1)(3).

Defendants contend that if they are now required to

implement a fee schedule retroactively to cover services

previously provided and paid for under the “reasonable

charge” methodology, they will be unable to do so in a

“budget neutral” manner without seeking recoupment

from suppliers who were paid more under the “reasonable

charge” methodology than they would have been paid had

Defendants implemented the new fee schedules as re-

quired by Congress.

The Court recognizes that Defendants, due to their

own actions, may be required to make payments in excess

of what Congress contemplated in order to follow the

express provisions in the law regarding the implementa-

tion dates of the new fee schedules. However, to apply the

“budget neutrality” provision to the exclusion of the clear

mandate regarding the effective dates for the fee schedules

would likewise produce a result not contemplated by

Congress. Therefore, the Court finds as a matter of public

28a

policy and equity that any unexpected consequences (and

burdens) caused by Defendants’ failure to follow the law

should be borne by those who created the lamentable

situation and not by innocent intended beneficiaries of the

law."

b. Judicial Review

DHHS next contends that the BBA’s jurisdictional

provision precludes judicial review of the Secretary's

refusal to apply a fee schedule to services on or after

January 1, 2000. The Court rejects this contention. Al-

though the statute expressly precludes review of fee

schedule amounts and their phase-in, it does not preclude

review of the one aspect of the BBA at issue in this case —

the nondiscretionary effective date of January 1, 2000.”

The statute provides in relevant part:

* Though the contexts are different, the familiar policy developed

through the common law that the wrongdoer should not benefit from

his own wrong seems especially apropos to the case at bar. See, e.g.,

Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265, 66 S.Ct. 574, 90

L.Ed. 652 (1946) (“The most elementary conceptions of justice and

public policy require that the wrongdoer shall bear the risk of the

uncertainty which his own wrong has created.”).

* In considering the limitation of review, Congress chose to limit

review of the amounts set by the fee schedule and other discretionary

considerations, including the phase-in of payment rates, while leaving

open review of other issues. 42 U.S.C. §§ 1395m(1)(2), (5). Congress

could have easily precluded all review, but, by not doing so, Congress

effectively expressed its intent to allow review of other issues, such as

the one presently before the Court. See Ganem v. Heckler, 746 F.2d 844,

853 (D.C. Cir. 1984) (fact Congress knows how to withdraw a remedy

and has not expressly done so is some indication of congressional intent

to preserve that remedy). The BIPA, which governs the application of

the fee schedule to claims for in-county mileage, contains no jurisdictional

(Continued on following page)

29a

There shall be no administrative or judicial re-

view under section 1869 or otherwise of the

amounts established under the fee schedule for

ambulance services under this subsection, in-

cluding matters described in paragraph (2)

[phase-in provisions].

42 U.S.C. § 1395m(1)(5) (emphasis supplied). The Court

need not review any “amounts established under the fee

schedule” to determine whether Plaintiffs are entitled to

the relief they seek. Moreover, the Court’s decision in this

case is based upon Congress’ mandate that certain services

provided during a certain time frame shall be paid based

upon a new fee schedule. It is unnecessary to review the

“phase-in” provisions to reach this conclusion.

The Court recognizes that the statute provides that in

establishing the fee schedule, “the Secretary shall ... (E)

phase in the application of the payment rates under the

fee schedule in a fair and efficient manner.” 42 U.S.C.

§ 1395m(1)(2)(E). The Secretary’s discretion in phasing in

application of payment rates, however, cannot eliminate

the requirement that there be some payment rates to

“phase in” for services furnished on or after January 1,

2000, and for mileage incurred on or after July 1, 2001. The

Court finds the BBA’s grant of discretion to the Secretary in

phasing in the fee schedule is not equivalent to a grant of

freedom to legislate a new effective date. As it stands, no fee

schedule exists for services furnished from J anuary 1, 2000,

through March 31, 2002, as required by the BBA or for

qualifying mileage from July 1, 2001, through March 31,

2002, as required by the BIPA. Consequently, there is

limitation, making the Court’s review of that Act’s effective date

provision equally proper.

30a

nothing to “phase in” during that period. Based on the

foregoing, the Court rejects Defendants’ contention that

the Court does not have the authority to require Defen-

dants to comply with the law and implement fee schedules

with the effective dates established by Congress.

c. Defendants’ Discretion

The Court also rejects Defendants’ contention that

Congress gave the Secretary of DHHS discretion to adopt

a fee schedule that would “begin as soon after January 1,

2000 as feasible.” (See Defs.’ Mem. Opp’n Pls.’ Mot. Summ.

J. at 19). The language of the BBA and the BIPA indicate

that Congress did not give that discretion to the Secretary.

Although Congress could have easily used such discretion-

ary language, it chose not to do so. Congress instead opted

to impose a clear mandate that the fee schedules enacted

pursuant to the two Acts apply to services rendered on or

after the effective dates set forth therein.

Although the BBA is silent on when the regulation

must be promulgated, its message is clear in connection

with the services to which a fee schedule must be applied.

Balanced Budget Act of 1997, § 4531 (“shall apply to

services furnished on or after January 1, 2000”). Similarly,

the BIPA is silent on when regulations must be promul-

gated, but it also plainly specifies the services to which its

changes must be applied. Medicaid, Medicare and SCHIP

Benefits Improvement and Protection Act of 2000,

§ 423(b)(2) (“shall apply to services furnished on or after

July 1, 2001”). The Secretary’s position that the fee sched-

ule was to “begin as soon after January 1, 2000 as feasible”

3la

ignores the clear language chosen by Congress.”° This

Court refuses to rewrite the law, a job better suited for the

legislative branch than the judiciary.

d. Burdens, Ratification, and Reliance

Finally, the Court rejects Defendants’ contentions that

they should be allowed to ignore the law because (1) of the

alleged burden of compliance, (2) Congress has not stepped

in and remedied the noncompliance, and (3) ambulance

suppliers allegedly have not detrimentally relied upon the

belief that the agency would follow the law. Any additional

burdens facing Defendants are creatures of their own

making. They should not be allowed to ignore the law

because their failure to follow it previously will create a

burden if they are required to follow it presently." Fur-

thermore, the Court finds no evidence that Congress has

ratified Defendants’ failure to comply with the law. The

Court likewise finds no evidence or legal authority to

support Defendants’ contention that its failure to follow

the law should be excused because Plaintiffs have not

detrimentally relied upon Defendants’ obligation to follow

the law.

° In contrast to the clear statutory language at issue in this case,

the cases relied upon by the government feature statutory language

that is truly ambiguous and subject to interpretation. See Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 409-10, 113 S.Ct. 2151, 124

L.Ed.2d 368 (1993) (“adjustments where, for a provider of services for

any fiscal period, the aggregate reimbursement produced by the

methods of determining costs proves to be either inadequate or exces-

sive”); Sullivan v. Everhart, 494 U.S. 83, 84-85, 110 S.Ct. 960, 108

L.Ed.2d 72 (1990) (“more or less than the correct amount”).

" See supra note 8.

32a

4. Conclusion

As set forth hereinabove, the Court finds that Defen-

dants had a nondiscretionary duty under the BBA to

implement a fee schedule for payment of services fur-

nished by ambulance service suppliers after January 1,

2000, and that Defendants breached this duty by failing to

implement a fee schedule for services furnished from

January 1, 2000, through March 31, 2002. The Court also

finds that Defendants had a nondiscretionary duty under

the BIPA to implement a system for the payment of in-

county mileage in certain states, including North Carolina

and Tennessee, starting on July 1, 2001. The Court further

finds that Defendants breached this duty by failing to

implement such a payment system for qualifying mileage

during the period July 1, 2001, through March 31, 2002.

Finally, the Court finds that Plaintiffs had no other avail-

able avenues for relief, and that mandamus is therefore

appropriate in this case. Accordingly, Plaintiffs’ Motion for

Summary Judgment is granted and Defendants’ Motion

for Summary Judgment is denied.

The Court hereby orders DHHS tc adopt fee schedules

within 90 days of the entry of this Order that apply to

services furnished during the relevant time period as

specified by the Balanced Budget Act of 1997 and the

Medicare, Medicaid and SCHIP Benefits Improvement and

Protection Act of 2000. In adopting and applying these fee

schedules, DHHS should take into consideration the

factors set forth in the BBA and BIPA. However, as previ-

ously discussed, budget neutrality should not be consid-

ered to the extent that it denies Plaintiffs meaningful

relief.

33a

C. Plaintiffs’ Motion for Class Certification

Plaintiffs seek certification of a class pursuant to

Fed.R.Civ.P. 23(b)(2) for their declaratory and mandamus

relief claims.” The Court finds that Plaintiffs satisfy the

requirements of Rule 23(a) and (b)(2) and that certification

is proper as to Plaintiffs’ declaratory and mandamus relief

claims for the reasons discussed below.” Accordingly,

Plaintiffs’ Motion for Class Certification is granted.

“A class action may be maintained only when it

satisfies all the requirements of Fed.R.Civ.P. 23(a) and at

least one of the alternative requirements of Rule 23(b).”

Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228,

1233 (11th Cir. 2006) (quoting Jackson v. Motel 6 Multi-

purpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)). In

determining whether to certify a class, a court generally

should not inquire into the merits of the plaintiffs’ claims.

See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 157-

08, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). However, “the

class determination [does] generally involve considerations

that are enmeshed in the factual and legal issues compris-

ing the plaintiff’s cause of action.” Coopers & Lybrand v.

Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351

(1978).

Plaintiffs have invoked this Court’s mandamus jurisdiction,

under 28 U.S.C. § 1361, whereby a government official may be com-

pelled to follow the law.

* In consideration of Murray v. Auslander, 244 F.3d 807 (11th Cir.

2001), and other authorities concerning the potential monetary aspect

of the injunctive relief sought in the Complaint, the Court reserves the

question of whether additional certification under Rule 23(bX3) is

necessary or appropriate until after adjudication of Plaintiffs’ equitable

claims and implementation of the Court’s Order in this case.

34a

Plaintiffs seek to certify the following class:

All ambulance service suppliers in the United

States that provided ambulance services to

Medicare eligible recipients and that were enti-

tled to compensation for such services under a

fee schedule for suppliers of ambulance services

as required by the BBA of 1997.

Plaintiffs contend that for their claims under the

BIPA, a subclass should be certified since anyone having a

claim under the BIPA would be a member of the class

asserting claims under the BBA. Given that the relief

granted by the BIPA is available only to certain suppliers

in certain states, there will be members of the BBA class

that will not have claims under the BIPA.

1. Requirements of Rule 23(a)

Rule 23(a) establishes four prerequisites for certifica-

tion:

(1) the class is so numerous that joinder of all

members is impracticable, (2) there are questions

of law or fact common to the class, (3) the claims

or defenses of the representative parties are typi-

cal of the claims or defenses of the class, and (4)

the representative parties will fairly and ade-

quately protect the interests of the class.

Fed.R.Civ.P. 23(a). These requirements are commonly

referred to as numerosity, commonality, typicality, and

adequacy of representation, respectively. See Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231,

138 L.Ed.2d 689 (1997).

35a

a. Numerosity

Rule 23(a)(1) requires that a class be so numerous

that joinder of all members is impracticable. Precise

enumeration of class members is not necessary for the suit

to proceed as a class action. See Evans v. U.S. Pipe &

Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983). However,

Plaintiffs must provide a good faith estimate, showing that

the size of the potential class satisfies the numerosity

requirement. The Eleventh Circuit, while not adopting

strict numerical guidelines in this regard, has implied that

a class of more than forty persons could satisfy Rule

23(a)(1). See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546,

1553 (11th Cir. 1986).

P aintiffs estimate that the number of class members

is more than a thousand and, possibly, as many as five

thousand ambulance service suppliers. This estimate,

which is supported by an estimate reported by the Gov-

ernment, establishes the presumption of impracticality of

joinder and satisfies the numerosity requirement of Rule

23(a)(1)."*

b. Commonality

Rule 23(a)(2) requires a finding that there are “ques-

tions of law or fact common to the class.” Fed.R.Civ.P

“ See Medicare Program; Fee Schedule for Payment of Ambulance

Services and Revisions to the Physician Certification Requirements for

Coverage of Nonemergency Ambulance Services, 67 Fed.Reg. 9,100,

9,129 (Feb. 27, 2002) (to be codified at 42 C.F.R. pts. 410 & 414). In this

regulation, the Government indicates that there are approximately

10,000 suppliers and providers. Jd. While Plaintiffs represent only

suppliers unaffiliated with hospitals, this Court finds that Plaintiffs’

estimate that there are several thousand class members is reasonable.

36a

23(a)(2). Class relief is appropriate when the issues

involved are common to the class »s a whole and when

they turn on questions of law applicable in the same

manner to each member of the class. See Califano v.

Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d

176 (1979). Rule 23(a)(2) “does not require that all the

questions of law and fact raised by the dispute be common

_.. ” 7A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1763 (2d ed. 1987 & Supp. 2002);

see also Cox, 784 F.2d at 1557. The Eleventh Circuit has

recognized that, where allegations of wrongdoing arise

from a common practice or course of conduct in relation to

the class members, the class claims will involve common

questions of law and fact. Kennedy v. Tallant, 710 F.2d 711

(11th Cir. 1983); Sanders v. Robinson Humphrey/

American Express, Inc., 634 F. Supp. 1048 (N.D. Ga. 1986),

aff’d in part, rev'd in part, Kirkpatrick v. J.C. Bradford &

Co., 827 F.2d 718 (11th Cir. 1987).

The common nucleus of operative facts and the com-

mon controlling legal issue in this case are clear. According

to the Complaint, DHHS has thus far failed to implement

uniform fee schedules effective January 1, 2000, and July

1, 2001, despite clear congressional directives to do so

under the BBA and BIPA, respectively. Instead, DHHS

belatedly implemented a new schedule effective April 1,

2002, which left interim periods extending from the

congressionally-imposed effective dates through March 31,

2002, uncovered by the new fee schedule.

Plaintiffs seek a declaratory judgment and mandamus

relief interpreting the relevant portions of the BBA and

BIPA consistent with the plain language of those acts,

which requires DHHS to establish uniform fee schedules

complying with the BBA and BIPA and to apply the

37a

resulting schedules to services furnished during the

relevant time frame. The relief sought by Plaintiffs at this

juncture requires only a single determination of law,

interpreting the pertinent language in the BBA and BIPA.

Indeed, there are no thorny factual issues before the Court

because it is undisputed that DHHS has not adopted a fee

schedule for the relevant time frames and that payments

for services furnished during that period were based on

the previous “reasonable charge” methodology. The issue

in this case is appropriate for class determination because

individual actions could potentially lead to inconsistent

adjudications and duties for DHHS. Because Plaintiffs

share a common question of law and common facts with

each putative class member, the commonality requirement

of Rule 23(a)(2) is met.

c. Typicality

Rule 23(a)(3) requires that “the claims or defenses of

the representative parties [be] typical of the claims or

defenses of the class.” Fed.R.Civ.P. 23(a)(3). There must be

some nexus between the class representatives’ claims or

defenses and the common questions of fact or law which

unite the class. Kornberg v. Carnival Cruise Lines, Inc.,

741 F.2d 1332, 1337 (11th Cir. 1984). A sufficient nexus is

established if the claims or defenses of the class represen-

tatives arise from the same event or pattern and are based

on the same legal theory as the claims or defenses of the

putative class members. Jd. In this case, the legal theory

advanced by Plaintiffs is the same for each and every class

member and is equally capable of summary adjudication

via declaratory judgment and mandamus relief.

38a

Typicality, much like the element of commonality, is

established if the representative plaintiffs’ claims arise

from the same practice or course of conduct and are based

on the same legal theory as those of other class members.

Kornberg, 741 F.2d at 1332; Kennedy, 7 10 F.2d at 711. To

satisfy the typicality requirement, the class representa-

tives’ claim need not be identical to those of the class

members. Kornberg, 741 F.2d at 1337. The typicality

requirement “primarily directs the district court to focus

on whether named representatives’ claims have the same

essential characteristics as the claims of the class at

large.” Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.

1985). In this case, Plaintiffs’ claims are substantially

identical to those of the other class members. Specifically,

each member of the class allegedly has been subjected to

the refusal by DHHS to comply with the BBA’s require-

ment for a congressionally mandated compensation system

for ambulance services furnished to Medicare patients on

or after January 1, 2000.

Typicality is not destroyed even though some individ-

ual characteristics or factual differences may exist be-

tween the class representatives and other class members.

Appleyard, 754 F.2d at 958 (“A strong similarity of legal

theories will satisfy the typicality requirement despite

substantial factual differences.”). The question is whether

the same unlawful conduct was directed at the Plaintiffs

and the putative class members.

In this case, the same conduct, namely the failure to

adopt a uniform fee schedule as mandated by Congress for

the period in question, underlies the claims of each and

every class member. Because the named Plaintiffs and the

members of the class are unified in seeking a single

declaratory judgment and injunction applicable to all

39a

ambulance service suppliers and are doing so under the

same legal theory, this case clearly satisfies the typicality

requirement of Rule 23(a)(3).

d. Adequacy of Representation

Rule 23(a)(4) requires that the named plaintiffs fairly

and adequately protect the interests of the members of the

class. Adequate representation presents two questions: (1)

whether Plaintiffs’ counsel are qualified, experienced, and

generally able to conduct the proposed litigation; and (2)

whether Plaintiffs have interests that are antagonistic to

the class. Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir.

1985).

t. Adequacy of Class Representatives

The three named Plaintiffs are clearly members of the

proposed class and present common and typical claims.

The class definition advanced by Plaintiffs and the sub-

stance of the congressional enactments at issue avoid any

element of conflict between the class representatives and

members of the putative class.

The Court finds the Government’s argument that

some class members may be “injured” at a later date

because of the prospect of lowered payments attributable

to concerns of “budget neutrality” is speculative at best.

Additionally, no conflict is created simply because certain

potential class members may have benefitted from a

system that conflicted with the law. See Fabricant v. Sears

Roebuck, 202 F.R.D. 310, 315 (S.D. Fla. 2001) (plaintiff

does not have to show other class members desire the

relief sought). This is especially true when the relief

sought is an order directing an agency to follow the law.

40a

The Court finds that all ambulance suppliers that

rendered services specified in the class definition are

affected parties sharing common class characteristics.

Therefore, there is no impermissible conflict between class

members, and the named representatives are adequate

under Rule 23(a)(4). The Court further finds that Coastal

Transport, Inc. and Ambulance Services, Inc., who operate

in North Carolina and Tennessee, respectively, are ade-

quate representatives for the subclass asserting claims

under the BIPA.

ii. Adequacy of Class Counsel

Adequacy of representation also requires a showing

that the action will be vigorously prosecuted. The Eleventh

Circuit has adopted the following standard in interpreting

Rule 23(a)(4):

We conclude ... that ... where the class is rep-

resented by competent and zealous counsel, class

certification should not be denied simply because

of a perceived lack of subjective interest on the

part of the named plaintiffs unless their partici-

pation is so minimal that they virtually have ab-

dicated to their attorneys the conduct of the case.

To require less would permit attorneys essen-

tially to serve as class representatives; to require

more could well prevent the vindication of the le-

gal rights of the absent class members under the

guise of protecting those rights.

Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 728

(11th Cir. 1987).

The Court is satisfied after having reviewed Plaintiffs’

evidentiary submissions that proposed class counsel have

extensive experience and expertise in the successful

4la

prosecution of class action litigation and are more than

adequate to represent the interests of the class. The efforts

of counsel for Plaintiffs thus far in this case show that

they are committed to the vigorous prosecution of this

action and possess the skills necessary for such a task.

Plaintiffs and their counsel, therefore, are well-suited to

litigate this case, and the Court is confident they will

fairly and adequately protect the interests of the class, in

compliance with the mandate of Rule 23(a)(4).

2. Requirements of Rule 23(b)(2).

Once a plaintiff has shown that the requirements of

Rule 23(a) are satisfied, the plaintiff must then show that

one of the prongs in Rule 23(b) can likewise be met. In the

case at bar, Plaintiffs seek to certify a class under Rule

23(b)(2). Certification is proper under Rule 23(b)(2) when

the defendant “has acted or refused to act on grounds

generally applicable to the class, thereby making final

injunctive or declaratory relief appropriate.” Fed.R.Civ.P.

23(b\(2). Such relief must be the predominant remedy

requested for the class. Murray v. Auslander, 244 F.3d 807,

812 (11th Cir. 2001). Unlike a class certified under Rule

23(b\(3), a judgment rendered in a Rule 23(b)(2) class

action is binding on all members of the class; there is no

“opt out” alternative. See Guthrie v. Evans, 815 F.2d 626,

628 (11th Cir. 1987) (noting opt out remedy in Rule

23(c)(2) does not apply to Rule 23(b)(2) class actions).

Plaintiffs in this case seek declaratory and mandamus

relief requiring DHHS to fulfill its legal duty as deter-

mined by this Court. Furthermore, each member of the

putative class shares a predominant and common trait —

being an ambulance service supplier that has rendered

42a

services to Medicare eligible recipients, thereby entitling it

to reimbursement under federal law. See Balanced Budget

Act of 1997 § 4531; Medicaid, Medicare and SCHIP Bene-

fits Improvement and Protection Act of 2000 § 423. Based

on the foregoing, the Court therefore finds that Plaintiffs

have satisfied the requirements of Rule 23(b)(2).

3. Conclusion

For the reasons set forth above, the Court finds that

Plaintiffs have met each of the pertinent requirements of

subsection (a) and (b)(2) of Rule 23. Plaintiffs’ Motion for

Class Certification for their declaratory and mandamus

relief claims under Rule 23(b)(2) is hereby granted and the

Court certifies the following class:

All ambulance service suppliers in the United

States covered by the provisions of the BBA that

provided ambulance services to Medicare eligible

recipients during the period January 1, 2000,

through March 31, 2002.

The Court further certifies the following subclass for

Plaintiffs’ claims under BIPA:"

All ambulance service suppliers in the states

covered by the provisions of the BIPA that pro-

vided ambulance services to Medicare eligible re-

cipients during the period July 1, 2001, through

March 31, 2002.

* The Court exercises its discretion to modify the class definition

proposed by Plaintiffs.

'* Rule 23(c)(4(B) provides that when appropriate “a class may be

divided into subclasses.” The Court finds a subclass appropriate in this

case.

43a

The Court appoints the following counsel as co-lead

counsel for the above-described class and subclass:

James E. Butler, Jr., and Butler, Wooten,

Fryhofer, Daughtery & Sullivan, LLP

1500 Second Avenue, P.O. Box 2766

Columbus, GA 31902; and

Jonathan H. Waller and Campbell,

Waller & Poer, LLC,

Suite 450, 2100A SouthBridge Parkway,

Birmingham, AL 35209.

Ill. SUMMARY

To summarize, the Court denies Defendants’ Motion to

Dismiss and Motion for Summary Judgment, and the

Court grants Plaintiffs’ Motion for Summary Judgment

and Motion for Class Certification as set forth herein-

above.

44a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-11392-DD

LIFESTAR AMBULANCE SERVICE, INC., a Georgia

Corporation, individually and on behalf of a class of all

entities similarly situated, COASTAL MEDICAL TRANS-

PORT, INC., a North Carolina Corporation; individually

and on behalf of a class of all entities similarly situated,

AMBULANCE SERVICES, INC., a Tennessee Corpora-

tion; individually and on behalf of a class of all entities

similarly situated,

Plaintiffs-Appellees,

versus

UNITED STATES OF AMERICA, DEPARTMENT OF

HEALTH AND HUMAN SERVICES, TOMMY THOMP-

SON, in his official capacity as Secretary/Director of

D.H.H.S., HEALTH CARE FINANCING ADMINISTRA-

TION (CENTERS FOR MEDICARE & MEDICAID SER-

VICES), THOMAS A. SCULLY, in his official capacity as

Secretary/Director of H.C.F.A/C.MLS.,

Defendants-Appellants.

On Appeal from the United States District Court

for the Middle District of Georgia

(Filed Jun. 29, 2004)

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion __, 11th Cir., 19___, __ F.2d ___).

45a

Before: ANDERSON, BLACK and HILL, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge

in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ James C. Hill

UNITED STATES CIRCUIT JUDGE

46a

28 U.S.C.A. § 1361. Action to compel an officer of the

United States to perform his duty

The district courts shall have original jurisdiction of

any action in the nature of mandamus to compel an officer

or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.

42 U.S.C.A. § 405. Evidence, procedure, and certification

for payments

(a) Rules and regulations; procedures

The Commissioner of Social Security shall have full

power and authority to make rules and regulations and to

establish procedures, not inconsistent with the provisions

of this subchapter, which are necessary or appropriate to

carry out such provisions, and shall adopt reasonable and

proper rules and regulations to regulate and provide for

the nature and extent of the proofs and evidence and the

method of taking and furnishing the same in order to

establish the right to benefits hereunder.

* ok *

(g) Judicial review

Any individual, after any final decision of the Com-

missioner of Social Security made after a hearing to which

he was a party, irrespective of the amount in controversy,

may obtain a review of such decision by a civil action

commenced within sixty days after the mailing to him of

notice of such decision or within such further time as the

Commissioner of Social Security may allow. Such action

shall be brought in the district court of the United States

for the judicial district in which the plaintiff resides, or

47a

has his principal place of business, or, if he does not reside

or have his principal place of business within any such

judicial district, in the United States District Court for the

District of Columbia. As part of the Commissioner’s

answer the Commissioner of Social Security shall file a

certified copy of the transcript of the record including the

evidence upon which the findings and decision complained

of are based. The court shall have power to enter, upon the

pleadings and transcript of the record, a judgment affirm-

ing, modifying, or reversing the decision of the Commis-

sioner of Social Security, with or without remanding the

cause for a rehearing. The findings of the Commissioner of

Social Security as to any fact, if supported by substantial

evidence, shall be conclusive, and where a claim has been

denied by the Commissioner of Social Security or a deci-

sion is rendered under subsection (b) of this section which

is adverse to an individual who was a party to the hearing

before the Commissioner of Social Security, because of

failure of the claimant or such individual to submit proof

in conformity with any regulation prescribed under sub-

section (a) of this section, the court shall review only the

question of conformity with such regulations and the

validity of such regulations. The court may, on motion of

the Commissioner of Social Security made for good cause

shown before the Commissioner files the Commissioner’s

answer, remand the case to the Commissioner of Social

Security for further action by the Commissioner of Social

Security, and it may at any time order additional evidence

to be taken before the Commissioner of Social Security, but

only upon a showing that there is new evidence which is

material and that there is good cause for the failure to

incorporate such evidence into the record in a prior pro-

ceeding; and the Commissioner of Social Security -hall,

after the case is remanded, and after hearing such additional

48a

evidence if so ordered, modify or affirm the Commis-

sioner’s findings of fact or the Commisssioner’s decision, or

both, and shall file with the court any such additional and

modified findings of fact and decision,, and a transcript of

the additional record and testimomy upon which the

Commissioner’s action in modifying; or affirming was

based. Such additional or modified findings of fact and

decision shall be reviewable only to the extent provided for

review of the original findings of fact and decision. The

judgment of the court shall be final except that it shall be

subject to review in the same manner as a judgment in

other civil actions. Any action instittuted in accordance

with this subsection shall survive motwithstanding any

change in the person occupying the office of Commissioner

of Social Security or any vacancy in sutch office.

(h) Finality of Commissioner’s decision

The findings and decision of the Commissioner of Social

Security after a hearing shall be bimding upon all indi-

viduals who were parties to such hearing. No findings of

fact or decision of the Commissioner of Social Security

shall be reviewed by any person, tribunal, or governmental

agency except as herein provided. No action against the

United States, the Commissioner of Social Security, or any

officer or employee thereof shall be brought under section

1331 or 1346 of Title 28 to recover on any claim arising

under this subchapter.

42 U.S.C.A. § 1395ii. Application of certain provisions of

subchapter II

The provisions of sections 406 and 416()) of this title,

and of subsections (a), (d), (e), (h), (i), Gj), (k), and () of

49a

section 405 of this title, shall also apply with respect to

this subchapter to the same extent as they are applicable

with respect to subchapter II of this chapter, except that,

in applying such provisions with respect to this subchap-

ter, any reference therein to the Commissioner of Social

Security or the Social Security Administration shall be

considered a reference to the Secretary or the Department

of Health and Human Services, respectively.

42 U.S.C.A. § 1395m. Special payment rules for particular

items and services

* o *

(1) Establishment of fee schedule for ambulance services

(1) In general

The Secretary shall establish a fee schedule for

payment for ambulance services whether provided directly

by a supplier or provider or under arrangement with a

provider under this part through a negotiated rulemaking

process described in Title 5, and in accordance with the

requirements of this subsection.

(2) Considerations

In establishing such fee schedule, the Secretary

shall -

(A) establish mechanisms to control increases

in expenditures for ambulance services under this

part;

(B) establish definitions for ambulance services

which link payments to the type of services provided;

tional differences;

50a

(D) consider adjustments to payment rates to

account for inflation and other relevant factors, and

(E) phase in the application of the payment

rates under the fee schedule in an efficient and fair

manner consistent with paragraph (11), except that

such phase-in shall provide for full payment of any

national mileage rate for ambulance services provided

by suppliers that are paid by carriers in any of the 50

States where payment by a carrier for such services

for all such suppliers in such State did not, prior to

the implementation of the fee schedule, include a

separate amount for all mileage within the county

from which the beneficiary is transported.

(3) Savings

In establishing such fee schedule, the Secretary

shall —

(A) ensure that the aggregate amount of pay-

ments made for ambulance services under this part

during 2000 does not exceed the aggregate amount of

payments which would have been made for such ser-

vices under this part during such year if the amend-

ments made by section 4531(a) of the Balanced

Budget Act of 1997 continued in effect, except that in

making such determination the Secretary shall as-

sume an update in such payments for 2002 equal to

percentage increase in the consumer price index for

all urban consumers (U.S. city average) for the 12-

month period ending with June of the previous year

reduced in the case of 2002 by 1.0 percentage points;

and

(B) set the payment amounts provided under

the fee schedule for services furnished in 2001 and

each subsequent year at amounts equal to the pay-

ment amounts under the fee schedule for services

5la

furnished during the previous year, increased by the

percentage increase in the consumer price index for

all urban consumers (U.S. city average) for the 12-

month period ending with June of the previous year

reduced in the case of 2002 by 1.0 percentage points.

(4) Consultation

In establishing the fee schedule for ambulance ser-

vices under this subsection, the Secretary shall consult

with various national organizations representing indi-

viduals and entities who furnish and regulate ambulance

services and share with such organizations relevant data

in establishing such schedule.

(5) Limitation on review

There shall be no administrative or judicial review

under section 1869 or otherwise of the amounts estab-

lished under the fee schedule for ambulance services

under this subsection, including matters described in |

paragraph (2).

(6) Restraint on billing

The provisions of subparagraphs (A) and (B) of section

1395u(b)(18) of this title shall apply to ambulance services

for which payment is made under this subsection in the

same manner as they apply to services provided by a

practitioner described in section 1395u(b)(18)(C) of this

title.

(7) Coding system

The Secretary may require the claim for any services

for which the amount of payment is determined under this

subsection to include a code (or codes) under a uniform

52a

coding system specified by the Secretary that identifies the

services furnished. |

(8) Services furnished by critical access hospital

Notwithstanding any other provision of this subsec-

tion, the Secretary shall pay the reasonable costs indurred

in furnishing ambulance services if such services are

furnished —

(A) by a critical access hospital (as defined in

section 1395x(mm)(1) of this title), or

(B) by an entity that is owned and operated by

a critical access hospital,

but only if the critical access hospital or entity is the

only provider or supplier of ambulance services that is

located within a 35-mile drive of such critical access hospital.

(9) Transitional assistance for rural providers

In the case of ground ambulance services furnished on

or after July 1, 2001, and before January 1, 2004, for

which the transportation originates in a rural area (as

defined in section 1395ww(d)(2)(D) of this title) or in a

rural census tract of a metropolitan statistical area (as

determined under the most recent modification of the

Goldsmith Modification, originally published in the Fed-

eral Register on February 27, 1992 (57 Fed. Reg. 6725)),

the fee schedule established under this subsection shall

provide ‘nat, with respect to the payment rate for mileage

for a trip above 17 miles, and up to 50 miles, the rate

otherwise established shall be increased by not less than

1/2 of the additional payment per mile established for the

first 17 miles of such a trip originating in a rural area.

53a

UNITED STATES PUBLIC LAWS

105th Congress - First Session

Convening January 7, 1997

Additions and Deletions are not

identified in this document.

For Legislative History of Act, see LH database

or Report for this Public Law in U.S.C.C. &

A.N. Legislative History section.

PL 105-33 (HR 2015)

August 5, 1997

BALANCED BUDGET

An Act to provide for reconciliation pursuant to

subsections (b)(1) and (c) of section 105 of the concurrent

resolution on the budget for fiscal year 1998.

Be it enacted by the Senate and House of

Representatives of the United States

of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Balanced Budget Act of

1997”.

SEC. 2. TABLE OF TITLES.

This Act is organized into titles as follows:

Title I— Food Stamp Provisions

Title II - Housing and Related Provisions

Title III - Communications and Spectrum Alloca-

tion Provisions

Title IV — Medicare, Medicaid, and Children’s

Health Provisions

Title V — Welfare and Related Provisions

54a

Title VI — Education and Related Provisions

Title VII — Civil Service Retirement and Related

Provisions

Title VIII — Veterans and Related Provisions

Title IX — Asset Sales, User Fees, and Miscella-

neous Provisions

Title X — Budget Enforcement and Process Provi-

sions

Title XI — District of Columbia Revitalization

* * *

CHAPTER 3 - AMBULANCE SERVICES

SEC. 4531. PAYMENTS FOR AMBULANCE SERVICES.

(a) INTERIM REDUCTIONS. -

<< 42 USCA § 1395x >>

(1) PAYMENTS DETERMINED ON REASONABLE

COST BASIS. — Section 1851(v)(1) (42 U.S.C. 1395x(v)(1)),

as amended by section 4451, is amended by adding at the

end the following new subparagraph:

“(UT) In determining the reasonable cost of ambu-

lance services (as described in subsection (s)(7)) provided

during fiscal year 1998, during fiscal year 1999, and

during so much of fiscal year 2000 as precedes January 1,

2000, the Secretary shall not recognize the costs per trip in

excess of costs recognized as reasonable for ambulance

services provided on a per trip basis during the previous

fiscal year (after application of this subparagraph), in-

creased by the percentage increase in the consumer price

index for all urban consumers (U.S. city average) as

estimated by the Secretary for the 12-month period ending

55a

with the midpoint of the fiscal year involved reduced by

1.0 percentage point. For ambulance services provided

after June 30, 1998, the Secretary may provide that claims

for such services must include a code (or codes) under a

uniform coding system specified by the Secretary that

identifies the services furnished.”.

<< 42 USCA § 1395u >>

(2) PAYMENTS DETERMINED ON REASONABLE

CHARGE BASIS. -— Section 1842(b) (42 U.S.C. 1395u(b)) is

amended by adding at the end the following new para-

graph:

“(19) For purposes of section 1833(a)(1), the reason-

able charge for ambulance services (as described in section

1861(s)(7)) provided during calendar year 1998 and calen-

dar year 1999 may not exceed the reasonable charge for

such services provided during the previous calendar year

(after application of this paragraph), increased by the

percentage increase in the consumer price index for all

urban consumers (U.S. city average) as estimated by the

Secretary for the 12-month period ending with the mid-

point of the year involved reduced by 1.0 percentage

point.”.

(b) ESTABLISHMENT OF PROSPECTIVE FEE

SCHEDULE. -

<< 42 USCA § 1395] >>

(1) PAYMENT IN ACCORDANCE WITH FEE

SCHEDULE. - Section 1833(a)(1) (42 U.S.C. 1395l(a\(1)),

as amended by section 4315(b), is amended —

(A) by striking “and (Q)” and inserting “(Q)”; and

56a

(B) by striking the semicolon at the end and insert-

ing the following: “, and (R) with respect to ambulance

service, the amounts paid shall be 80 percent of the lesser

of the actual charge for the services or the amount deter-

mined by a fee schedule established by the Secretary

under section 1834(I);”.

<< 42 USCA § 1395m >>

(2) ESTABLISHMENT OF SCHEDULE. - Section

1834 (42 U.S.C. 1395m), as amended by section 4541, is

amended by adding at the end the following new subsec-

tion:

“(1) ESTABLISHMENT OF FEE SCHEDULE FOR

AMBULANCE SERVICES. -—

“(1) IN GENERAL. - The Secretary shall establish a

fee schedule for payment for ambulance services whether

provided directly by a supplier or provider or under ar-

rangement with a provider under this part through a

negotiated rulemaking process described in title 5, United

States Code, and in accordance with the requirements of

this subsection.

“(2) CONSIDERATIONS. - In establishing such fee

schedule, the Secretary shall —

“(A) establish mechanisms to control increases in

expenditures for ambulance services under this part;

“(B) establish definitions for ambulance services

which link payments to the type of services provided;

“(C) consider appropriate regional and operational

differences;

57a

“(D) consider adjustments to payment rates to

account for inflation and other relevant factors; and

“(E) phase in the application of the payment rates

under the fee schedule in an efficient and fair manner.

“(3) SAVINGS. — In establishing such fee schedule,

the Secretary shall —

“(A) ensure that the aggregate amount of payments

made for ambulance services under this part during 2000

does not exceed the aggregate amount of payments which

would have been made for such services under this part

during such year if the amendments made by section

4531(a) of the Balanced Budget Act of 1997 continued in

effect, except that in making such determination the

Secretary shall assume an update in such payments for

2002 equal to percentage increase in the consumer price

index for all urban consumers (U.S. city average) for the

12-month period ending with June of the previous year

reduced in the case of 2001 and 2002 by 1.0 percentage

points; and

“(B) set the payment amounts provided under the fee

schedule for services furnished in 2001 and each subse-

quent year at amounts equal to the payment amounts

under the fee schedule for services furnished during the

previous year, increased by the percentage increase in the

consumer price index for all urban consumers (U.S. city

average) for the 12-month period ending with June of the

previous year reduced in the case of 2001 and 2002 by 1.0

percentage points.

(4) CONSULTATION. - In establishing the fee schedule

for ambulance services under this subsection, the Secretary

shall consult with various national organizations representing

58a

individuals and entities who furnish and regulate ambu-

lance services and share with such organizations relevant

data in establishing such schedule.

“(5) LIMITATION ON REVIEW. - There shall be no

administrative or judicial review under section 1869 or

otherwise of the amounts established under the fee sched-

ule for ambulance services under this subsection, includ-

ing matters described in paragraph (2).

“(6) RESTRAINT ON BILLING. — The provisions of

subparagraphs (A) and (B) of section 1842(b)(18) shall

apply to ambulance services for which payment is made

under this subsection in the same manner as they apply to

services provided by a practitioner described in section

1842(b)(18)(C).

“(7) CODING SYSTEM. — The Secretary may require

the claim for any services for which the amount of pay-

ment is determined under this subsection to include a code

(or codes) under a uniform coding system specified by the

Secretary that identifies the services furnished.”.

<< 42 USCA §§ 13951 NOTE, 1395m nt >>

(3) EFFECTIVE DATE. - The amendments made by

this subsection shall apply to services furnished on or after

January 1, 2000.

59a

UNITED STATES PUBLIC LAWS

106th Congress - Second Session

Convening January 24, 2000

Additions and Deletions are not

identified in this database.

Vetoed provisions within tabular

material are not displayed

PL 106-554 (HR 4577)

December 21, 2000

CONSOLIDATED APPROPRIATIONS -— FY 2001

An Act Making consolidated appropriations for the

fiscal year ending September 30, 2001, and for other

purposes.

Be it enacted by the Senate and House of

Representatives of the United States

of America in Congress assembled,

SECTION 1. (a) The provisions of the following bills of the

106th Congress are hereby enacted into law:

(1) H.R. 5656, as introduced on December 14, 2000.

(2) H.R. 5657, as introduced on December 14, 2000.

(3) H.R. 5658, as introduced on December 14, 2000.

(4) H.R. 5666, as introduced on December 15, 2000,

except that the text of H.R. 5666, as so enacted, shall not

include section 123 (relating to the enactment of H.R.

4904).

(5) H.R. 5660, as introduced on December 14, 2000.

(6) H.R. 5661, as introduced on December 14, 2000.

(7) =#LR. 5662, as introduced on December 14, 2000.

60a

(8) H.R. 5663, as introduced on December 14, 2000.

(9) H.R. 5667, as introduced on December 15, 2000.

<< 1 USCA § 112 NOTE >>

(b) In publishing this Act in slip form and in the

United States Statutes at Large pursuant to section 112 of

title 1, United States Code, the Archivist of the United

States shall include after the date of approval at the end

appendixes setting forth the texts of the bills referred to in

subsection (a) of this section and the text of any other bill

enacted into law by reference by reason of the enactment

of this Act.

SEC. 2. (a) Notwithstanding Rule 3 of the Budget

Scorekeeping Guidelines set forth in the joint explanatory

statement of the committee of conference accompanying

Conference Report 105-217, legislation enacted in section

505 of the Department of Transportation and Related

Agencies Appropriations Act, 2001, section 312 of the

Legislative Branch Appropriations Act, 2001, titles X and

XI of H.R. 5548 (106th Congress) as enacted by H.R. 4942

(106th Congress), division B of H.R. 5666 (106th Congress)

as enacted by this Act, and sections 1(a)(5) through 1(a)(9)

of this Act that would have been estimated by the Office of

Management and Budget as changing direct spending or

receipts under section 252 of the Balanced Budget and

Emergency Deficit Control Act of 1985 were it included in

an Act other than an appropriations Act shall be treated as

direct spending or receipts legislation, as appropriate,

under section 252 of the Balanced Budget and Emergency

Deficit Control Act of 1985.

(b) In preparing the final sequestration report

required by section 254(f)(3) of the Balanced Budget and

6la

Emergency Deficit Control Act of 1985 for fiscal year 2001,

in addition to the information required by that section, the

Director of the Office of Management and Budget shall

change any balance of direct spending and receipts legisla-

tion for fiscal year 2001 under section 252 of that Act to

zero.

Appropriations Act, 2001”.

Approved December 21, 2000.

TABLE OF CONTENTS

The table of contents is as follows:

APPENDIX A — H.R. 5656

APPENDIX B — H.R. 5657

APPENDIX C — H.R. 5658

APPENDIX D - H.R. 5666

APPENDIX D-1 - S. 2273

~ APPENDIX D-2 — S. 2885

APPENDIX E — H.R. 5660

APPENDIX F — H.R. 5661

APPENDIX G —- H.R. 5662

APPENDIX H — H.R. 5663

APPENDIX I — H.R. 5667

APPENDIX A — H.R. 5656

That the following sums are appropriated, out of any

money in the Treasury not otherwise appropriated, for the

Departments of Labor, Health and Human Services, and

62a

Education, and related agencies for the fiscal year ending

September 30, 2001, and for other purposes, namely:

* * *

SEC. 423. PAYMENT FOR AMBULANCE SERVICES.

(a) RESTORATION OF FULL CPI INCREASE FOR

2001. —

<< 42 USCA § 1395m >>

(1) IN GENERAL. - Section 1834(1)(3) (42

U.S.C. 1395m(1)(3)) is amended by striking “reduced in the

case of 2001 and 2002” each place it appears and inserting

“reduced in the case of 2002”.

<< 42 USCA § 1395m NOTE >>

(2) SPECIAL RULE FOR PAYMENT FOR 2001.

_ Notwithstanding the amendment made by paragraph

(1), for purposes of making payments for ambulance

services under part B of title XVIII of the Social Security

Act, for services furnished during 2001, the “percentage

increase in the consumer price index” specified in section

1834(1)(3)(B) of such Act (42 U.S.C. 1395m(1)(3)(B)) -

(A) for services furnished on or after Janu-

ary 1, 2001, and before July 1, 2001, shall be the percent-

age increase for 2001 as determined under the provisions

of law in effect on the day before the date of the enactment

of this Act; and

(B) for services furnished on or after July 1,

2001, and before January 1, 2002, shall be equal to 4.7

percent.

(b) MILEAGE PAYMENTS. -

<< 42 USCA § 1395m >>

63a

(1) IN GENERAL. — Section 1834(1)(2)(E) (42 U.S.C.

1395m(1)(2)(E)) is amended by inserting before the period

at the end the following: “, except that such phase-in shall

provide for full payment of any national mileage rate for

ambulance services provided by suppliers that are paid by

carriers in any of the 50 States where payment by a

carrier for such services for all such suppliers in such

State did not, prior to the implementation of the fee

schedule, include a separate amount for all mileage within

the county from which the beneficiary is transported”.

<< 42 USCA § 1395m NOTE >>

(2) EFFECTIVE DATE. — The amendment made by

paragraph (1) shall apply to services furnished on or after

July 1, 2001.

64a

67 FR 9100

DEPARTMENT OF HEALTH AND HUMAN SER-

VICES

Centers for Medicare & Medicaid Services

42 CFR Parts 410 and 414

[HCFA-1002-FC]

RIN 0938-AK30

Medicare Program; Fee Schedule for Payment of

Ambulance Services and Revisions to the Physician

Certification Requirements for Coverage of Non-

emergency Ambulance Services

AGENCY: Centers for Medicare & Medicaid Services

(CMS), HHS.

ACTION: Final rule with comment period.

SUMMARY: This final rule establishes a fee schedule for

the payment of ambulance services under the Medicare

program, implementing section 1834(1) of the Social

Security Act. As required by that section, the proposed rule

on which this final fee schedule for ambulance services is

based was the product of a negotiated rulemaking process

that was car

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