           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 18, 2008

                                       No. 07-10107                   Charles R. Fulbruge III
                                                                              Clerk

ARTHUR FLEMING and M&F HOME HEALTH CARE INC.

                                                  Plaintiffs-Appellants
v.

MICHAEL O. LEAVITT et al

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              No. 3-05-CV-2077-BH


Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
       This is a case under the Medicare Act. Plaintiffs sought mandamus and
declaratory relief in district court to compel Defendants to accept a cost report
and to reimburse Plaintiffs for their past services for amounts allegedly decided
in a settlement. The district court dismissed the action, finding that Plaintiffs
had failed to exhaust their administrative remedies – a prerequisite to
jurisdiction under the Medicare Act. Plaintiffs appealed.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-10107

                                        I
      Arthur Fleming provided home health care to Medicare patients through
M&F Home Health Care, Inc. The Secretary of the Department of Health and
Human Services has delegated the administration of Medicare to the Center for
Medicare and Medicaid Services. CMS contracts with insurance companies to
handle reimbursement of individual Medicare providers, such as Plaintiffs, from
the federal Medicare Trust. These “fiscal intermediaries” receive year-end cost
reports from providers, determine which provider claims are eligible for
reimbursement from the trust, and authorize payments for services provided to
eligible beneficiaries for covered care. M&F entered a provider agreement with
CMS. Medicare’s “Hospital Insurance Benefits for the Aged and Disabled (Part
A)” allowed CMS to pay M&F for some of the post-hospital home care that it
provided to patients. Palmetto Government Benefits Administrators, LLC, was
the financial intermediary between CMS and M&F, receiving interim and fiscal
year-end (FYE) cost reports from M&F. Palmetto, after accepting FYE cost
reports and auditing them, issued a Notice of Program Reimbursement, i.e., a
“settlement” or “NPR,” indicating adjustments that Palmetto had made based
on the audit. The NPRs authorized the amounts owed to M&F as a result of
underpayments throughout the fiscal year, as well as any amounts owed by
M&F to Medicare resulting from “overpayments” that M&F had received for
non-covered services or ineligible payments.
      Plaintiffs dispute Palmetto’s treatment of two of its cost reports. Based on
Plaintiffs’ cost report for FYE January 31, 1998, the first cost report, Palmetto
issued an NPR indicating that Medicare had overpaid M&F by more than $1.1
million and that M&F owed this amount to Medicare. Plaintiffs dispute this
amount and claim that the parties, after a partial administrative hearing,
resolved the dispute in a settlement agreement. Plaintiffs allege that the parties
established, through an unwritten settlement, that Medicare owed more than


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                                        No. 07-10107

$1.1 million to M&F but that Defendants failed to honor this settlement
agreement. Plaintiffs do not allege that they appealed the disputed NPR to the
Provider Reimbursement Review Board; instead they alleged in their original
complaint before the district court that “[i]n 1998 M&F began an administrative
appeal to review the claims denied by Palmetto through the WEDGE/ORT [an
‘intensified audit or post-payment medical review’].” They further asserted that
the “settlement terms” established that M&F should be paid for 18,225 claims
and the visits associated with those claims.
       M&F stopped doing business with Medicare and Palmetto on December 31,
1998. It filed the second cost report at issue on April 19, 1999. This report
included all costs for the final months of its business – February 1, 1998,
through December 31, 1998. Palmetto allegedly refused to accept this report and
created its own cost report.1 It then issued an NPR indicating further amounts
that M&F owed to Medicare and on November 19, 1998, declared M&F to be in
non-payment status.
       In 2005, Plaintiffs filed a complaint in federal district court, requesting
three remedies. First, they asked the district court to enter a declaratory
judgment setting out the rights established under the alleged settlement.
Second, they requested two writs of mandamus: one to require Defendants to
accept their second cost report, and one to stop Defendants’ collection
proceedings. Defendants filed a motion to dismiss under Rules 12(b)(1) and
12(b)(6). The parties consented to have their case heard by a magistrate judge.
The magistrate determined, “Because the exhaustion of administrative remedies
that ends in a final agency determination is a jurisdictional prerequisite to suit,

       1
         Plaintiffs allege that Defendants initially refused to accept the cost report because it
was not dated with the proper FYE date of January 31, 1998. But Palmetto had allegedly
advised Plaintiffs to date the report as of December 31, 1998 – the date of Plaintiffs’ final day
of business. Plaintiffs claim that Palmetto’s employee “admits that the proper date for the cost
report was 12/31/98, but states that the report was not received until January 12, 2000,”
outside of the five-month time period allowed for filing.

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                                         No. 07-10107

this court lacks subject matter jurisdiction to hear Plaintiffs’ claim for
declaratory judgment.”2 The district court dismissed Plaintiffs’ petition in its
entirety in a corrected final judgment, finding a lack of jurisdiction under
12(b)(1). Plaintiffs timely appealed.
                                                II
       We review de novo a district court’s determination that a case arises under
the Medicare Act.3 We also review de novo a grant of a 12(b)(1) motion to
dismiss on the grounds of a failure to exhaust.4 Defendants and Plaintiffs both
argue that this case arises under the Medicare Act, and the court did not err in
finding the same. A claim arises under the Medicare Act if “‘both the standing
and the substantive basis for the presentation’ of the claim is the Medicare Act
. . . or if the claim is ‘inextricably intertwined’ with a claim for Medicare
benefits.”5      All of Plaintiffs’ claims involve Defendants’ determinations of
amounts owed for money that Medicare allegedly overpaid to Plaintiffs – a
quintessential reimbursement dispute arising under the Medicare Act.
       The Medicare Act, Title XVIII of the Social Security Act, is subject to the
Social Security Act’s requirements for exhaustion of claims.6 42 U.S.C. § 405(g)
provides,
       Any individual, after any final decision of the Commissioner of
       Social Security made after a hearing to which he was a party,


       2
        Fleming v. Leavitt, Civ. Action No. 3:05-CV-2077-BH, 2006 WL 2880452, *6 (N.D.
Tex. Sept. 29, 2006).
       3
           RenCare, Ltd. v. Humana Health Plan of Tex., Inc., 395 F.3d 555, 557 (5th Cir. 2004).
       4
           See Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570 (5th Cir. 2001).
       5
           RenCare, 395 F.3d at 557 (quoting Heckler v. Ringer, 466 U.S. 602, 606, 623 (1984)).
       6
         See Ringer, 466 U.S. at 614-15 (citing Weinberger v. Salfi, 422 U.S. 749, 760-61 (1975))
(“The third sentence of 42 U. S. C. § 405(h), made applicable to the Medicare Act by 42 U.S.C.
§ 1395ii, provides that § 405(g), to the exclusion of 28 U.S.C. § 1331, is the sole avenue for
judicial review for all ‘claim[s] arising under’ the Medicare Act.”).

                                                4
                                         No. 07-10107

       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 . . . .7

       The Supreme Court in Heckler v. Ringer confirmed that parties must
follow the exhaustion requirements of § 405 when the Medicare Act is “both the
standing and the substantive basis for the presentation.”8 Several sections of the
Medicare Act specify the administrative procedures that parties must pursue
when disputing NPRs. 42 U.S.C. § 1395oo provides that “[a]ny provider of
services which has filed a required cost report within the time specified in
regulations may obtain a hearing with respect to such cost report by a Provider
Reimbursement Review Board” (the PRRB). If the amount in controversy is
$10,000 or more,9 a hearing is available for any provider
       dissatisfied with a final determination of the organization serving as its
       fiscal intermediary . . . to the amount of total program reimbursement due
       the provider for the items and services furnished to individuals for which
       payment may be made under this title [42 USCS §§ 1395 et seq.] for the
       period covered by such report . . . .10

The provider must file “a request for a hearing within 180 days after notice of
the intermediary’s final determination.”11 A PRRB decision based on the hearing
is final unless the Secretary, “within 60 days after the provider of services is
notified of the Board’s decision, reverses, affirms, or modifies the Board’s


       7
           Emphasis added.
       8
         466 U.S. at 615; see also Shalala v. Ill. Council on Long Term Care, 529 U.S. 1, 12
(2000) (citing Ringer’s reiteration of this principle).
       9
           42 U.S.C. § 1395oo(a)(2).
       10
            42 U.S.C. § 1395oo(a)(1)(A)(i).
       11
            42 U.S.C. § 1395oo(a)(3).

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                                       No. 07-10107

decision,”12 in which case the decision is final once the Secretary has acted on it.
A provider has
      the right to obtain judicial review of any final decision of the Board,
      or of any reversal, affirmance, or modification by the Secretary, by
      a civil action commenced within 60 days of the date on which notice
      of any final decision by the Board or of any reversal, affirmance, or
      modification by the Secretary is received.13

      Defendants assert that because Plaintiffs’ claims all arise under the
Medicare Act and because Plaintiffs failed to exhaust their administrative
remedies as required under the Act, the district court properly found that it
lacked jurisdiction. Plaintiffs counter that, although their claims arise under the
Act, there were no available remedies for them to exhaust: by allegedly
“settling,” Defendants precluded the possibility of administrative exhaustion.
Because Defendants wrongfully halted administrative review by “settling,”
Plaintiffs assert, they should be estopped from arguing exhaustion.
Furthermore, they argue, “the fiscal intermediary’s refusal to accept the
providers’ timely submitted final cost report was an action for which no
administrative review was permitted.”14
      The district court did not err in finding that Plaintiffs had administrative
remedies available to them and failed to exhaust those remedies, thus divesting
the court of jurisdiction. Plaintiffs’ complaint contested Palmetto’s refusal to
reopen the disputed cost reports underlying the NPRs. As the district court
found, Palmetto, as the financial intermediary, was not required to reopen the




      12
           42 U.S.C. § 1385oo(f)(1).
      13
           Id.
      14
           Plaintiffs’ Brief at 3.

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                                       No. 07-10107

report,15 nor was its refusal to do so a final appealable action. Plaintiffs could
have disputed Palmetto’s audits of their cost reports and resulting NPR
determinations by appealing the NPRs, as provided in the Medicare Act, but
they failed to exhaust these administrative procedures. Plaintiffs could also
have appealed the amounts owed in the alleged “settlement agreement” between
Plaintiffs and Defendants by appealing the NPR that gave rise to those amounts
owed. Although Plaintiffs allege that they “began an administrative appeal” in
1998 and that Palmetto offered to “settle” the proceedings, Plaintiffs fail to allege
that they appealed pursuant to the procedures in 42 U.S.C. § 1395oo(a), nor do
they explain why the alleged settlement, which they concede was “not reduced
to writing,” prevented them from pursuing the judicial review procedures
provided in 42 U.S.C. § 1395oo(f)(1).                Indeed, Plaintiffs began these
administrative proceedings before Defendants issued an NPR; the Medicare Act
requires providers to request review after the intermediary has made a “final
determination” – i.e., completed an NPR. In short, the district court correctly
identified the administrative remedies available to Plaintiffs and their failure
to allege that they had properly exhausted those remedies.
       Even assuming that Defendants were estopped from asserting that
Plaintiffs failed to exhaust their administrative remedies, which it appears they
were not, we must consider sua sponte, if necessary, whether Plaintiffs
exhausted their available remedies in determining whether the district court
had subject matter jurisdiction;16 exhaustion under the Medicare Act is a


       15
           See 42 C.F.R. § 405.1885(a) (providing that intermediaries “may” reopen their
determination if providers make a motion to reopen “within 3 years of the date of the notice
of the intermediary or Board hearing decision, or where there has been no such decision, any
such request to reopen must be made within 3 years of the date of notice of the intermediary
determination”).
       16
         See Huff v. Int’l Longshoremen’s Ass’n, Local No. 24, 799 F.2d 1087, 1088 (5th Cir.
1987); see also Sandy Creek Investors, Ltd. v. City of Jonestown, 325 F.3d 623, 626 (5th Cir.
2003) (quoting United States v. Lipscomb, 299 F.3d 303, 358 (5th Cir.2002)) (“‘[I]f parties do

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                                        No. 07-10107

prerequisite to jurisdiction. Because Plaintiffs failed to exhaust their remedies
under the Act, the district court did not err in holding that it lacks jurisdiction.
                                              III
       In district court, Plaintiffs asserted jurisdiction under 28 U.S.C. § 1331,
28 U.S.C. §§ 2201 and 2202 (the Declaratory Judgment Act), and 28 U.S.C. §
1361 (providing jurisdiction for mandamus relief).
       Section 405(h) expressly excludes federal question jurisdiction under §
1331, and where claims arise under the Medicare Act, as they did here, no
portion of those claims “can be channeled into federal court by way of
federal-question jurisdiction.”17
       For Plaintiffs’ assertion of jurisdiction under the Declaratory Judgment
Act, the district court did not err in holding that the Declaratory Judgment Act
is not an independent source of jurisdiction,18 and Plaintiffs have failed to raise
other valid bases for jurisdiction.
       Although we have not determined whether § 405 requires exhaustion of
administrative remedies prior to requesting mandamus relief, the district court
also did not err in holding that it lacked mandamus jurisdiction. The district
court held “that the exhaustion requirement applies to Plaintiffs’ pleas for
mandamus relief,” but its jurisdictional holding need not have reached so
broadly. Its recognition that “mandamus ‘is intended to provide a remedy for a
plaintiff only if he has exhausted all other avenues of relief and only if the




not raise the issue of jurisdiction, or even if they contend that the Court of Appeals has
jurisdiction we still must determine, sua sponte, whether we have jurisdiction in a particular
case.’”).
       17
            Ringer, 466 U.S. at 616.
       18
         See, e.g., Schilling v. Rogers, 363 U.S. 666, 677 (1960) (citation omitted) (holding that
“the Declaratory Judgments Act is not an independent source of federal jurisdiction”).

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                                       No. 07-10107

defendant owes him a clear nondiscretionary duty’”19 was an adequate basis for
denial of relief. Exhaustion aside, mandamus could not “properly issue”20 here.
Plaintiffs sought a writ of mandamus requiring Defendants to accept their
second cost report. As discussed above, financial intermediaries do not have a
duty to reopen cost reports – they can do so at their discretion. Plaintiffs also
sought mandamus to stop collection proceedings. The collection proceedings
were a direct result of Defendants’ NPRs, which Plaintiffs could have appealed
by properly initiating administrative review.
      The district court properly determined that it lacked jurisdiction under the
three bases for jurisdiction proffered by Plaintiffs. Because the district court
lacked jurisdiction to hear any of Plaintiffs’ claims, we need not address
Plaintiffs’ remaining arguments.
AFFIRMED.




      19
           Fleming, 2006 WL 2880452, at *6 (quoting Ringer, 466 U.S. at 616).
      20
           Ringer, 466 U.S. at 616.

                                             9
