                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 28 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RENATE MORALES, on behalf of herself            No.   16-55072
and all other persons similarly situated,
                                                D.C. No.
                Plaintiff-Appellant,            2:15-cv-04516-JAK-PLA

 v.
                                                MEMORANDUM*
PROVIDENCE HEALTH SYSTEM -
SOUTHERN CALIFORNIA, Erroneously
Sued As Providence Health and Services,
Inc.,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   John A. Kronstadt, District Judge, Presiding

                        Argued and Submitted June 5, 2017
                              Pasadena, California

Before: BEA and HURWITZ, Circuit Judges, and MOTZ,** District Judge.

      After a fall, Renate Morales received twenty physical therapy sessions at a

Providence Health System – Southern California (“Providence”) facility. Medicare


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable J. Frederick Motz, United States District Judge for the
District of Maryland, sitting by designation.
made conditional payments for the first twelve sessions, subject to any recovery

from an alleged tortfeasor. Instead of billing Medicare for the remaining eight

sessions, Providence placed a lien on Morales’ tort claim. In this putative class

action, Morales claims that Providence’s failure to bill Medicare constitutes breach

of contract, fraud, negligent misrepresentation, violation of the California Unfair

Competition Law and Consumer Legal Remedies Act, and breach of the covenant

of good faith and fair dealing. The district court dismissed Morales’ first amended

complaint without prejudice for failure to exhaust administrative remedies. We

affirm.

      1. Providence argues that this court does not have jurisdiction over this appeal

because the district court dismissal was without prejudice. But, if “a district court

terminates an action for a claimant’s failure to exhaust administrative remedies, we

will treat the matter as final unless the claimant could begin anew or continue the

administrative process.” Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073,

1076 (9th Cir. 2011). No administrative remedies remain for Morales. The time to

appeal administratively any denial of benefits has run.             See 42 U.S.C.

§ 1395ff(b)(1)(A); 42 C.F.R. §§ 405.924(b)(12)(ii), 405.980(b)(1)-(2) (setting a

time limit on reopening of an initial determination). The dispute resolution process

in 42 U.S.C. § 1395y(b)(2)(B)(vii)(IV), which the district court cited, applies only

to conditional Medicare reimbursements, not to the failure of a Medicare provider


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to submit a payment in the first place. See id. § 1395y(b)(2)(B)(i)-(ii). We therefore

have jurisdiction over this appeal.

      2. The Medicare Act’s exhaustion requirement, 42 U.S.C. § 405(h), applies

to judicial review of claims “arising under” the Act. Uhm v. Humana, Inc., 620 F.3d

1134, 1140 (9th Cir. 2010) (quoting Heckler v. Ringer, 466 U.S. 602, 614-15

(1984)); see § 405(h) (“No findings of fact or decision of the [Secretary] shall be

reviewed by any person, tribunal, or governmental agency except as herein

provided.”); § 405(g) (providing that review may be sought in district court only

“after any final decision of the [Secretary] made after a hearing”). A claim arises

under the Act “(1) where the ‘standing and the substantive basis for the presentation

of the claims’ is the Medicare Act . . . and (2) where the claims are ‘inextricably

intertwined’ with a claim for Medicare benefits.” Uhm, 620 F.3d at 1140 (quoting

Heckler, 466 U.S. at 614-15). Each of Morales’ claims is “at bottom . . . complaining

about the denial of Medicare benefits” and therefore is subject to the exhaustion

requirement. Id. at 1142-43.

      3. Morales concedes she did not exhaust administrative remedies, but argues

that § 405 does not apply because she is “not seeking review of any decision of the

Secretary and is not suing the United States, the Secretary, or any officer or

employee thereof.” But, Uhm was also a suit by a Medicare beneficiary against a

private entity and the Secretary was not a party. Id. at 1145. Morales also argues


                                          3
that she could not be required to exhaust administrative remedies because none

existed. But, as the district court noted, “[t]o the extent Plaintiff is claiming that

[Defendants are] running afoul of the Medicare Act by collecting reimbursement

from her in an amount greater than what is permitted under that Act she is making a

claim for benefits.” The administrative appeals process under 42 U.S.C. § 1395ff

governs benefits determinations. Alternatively, Morales could have submitted the

relevant claims directly to Medicare. See 42 C.F.R. § 405.904; see also 20 C.F.R. §

422.510(b) (prescribing the use of Form SSA-1490 for patients to request payment).

      AFFIRMED.1




1
      We deny both Morales’ and Providence’s motions for judicial notice. Dkt.
16, 21.

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