The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently pending before this court are: (1) the motion to dismiss filed by defendant California Department of Health Care Services ("CDHCS") on April 11, 2008; (2) the motion for summary judgment filed by plaintiff on April 15, 2008; and (3) the cross-motions for summary judgment filed by defendants CDHCS and the U.S. Department of Health and Human Services' ("DHHS") on June 16, 2008.*fn2 By order filed April 29, 2008, this court deemed all matters submitted for decision on the papers.*fn3,*fn4
For the reasons that follow, the court recommends that defendant CDHCS' motion to dismiss be granted, the cross-motions by both defendants be granted, and plaintiff's motion for summary judgment be denied.
A. Plaintiff's Allegations
Plaintiff challenges the denial of his prescription drug coverage for Viagra under both Medicare, the federally-funded medical benefits program for individuals age 65 and older, and Medicaid ("MediCal" in California), funded both federally and by the state to provide medical benefits to the indigent. Plaintiff is a "dual eligible beneficiary" who meets the eligibility requirements for both Medicare and Medi-Cal.
Plaintiff's complaint, filed October 9, 2007, is set forth in its entirety (not including exhibits):
This is an appeal for court review from a series of appeals on the Federal level and a legal claim against the California Department of Health Services (see enclosed exhibits). The plaintiff is a disabled person suffering from multiple disabilities and medical conditions. The defendants are the U.S. Department of Health and Human Services who administer the Medicare Part D program and the California Department of Health Services who administer the Medi-Cal program (i.e., Medi-Cal Director).
On January 1, 2007, Congress and the U.S. President signed into law an exclusion from Part D Medicare prescription drugs that barred Medicare patients from purchasing Viagra (under the Medicare Part D plan). About the same time, Medi-Cal barred Medi-Cal patients from obtaining Viagra by means of a TAR or Treatment Authorization Request (at no cost). Plaintiff, who has dual Medicare Part D and Medi-Cal coverage, was barred from obtaining Viagra -- unless he pays $88.00 for a bottle of six Viagra, which he can not do on an income of $876 per month (SSDI & SSI).
Plaintiff, herein, makes the following legal claims about the above matter(s). That Medicare Part D's barring of Viagra as a prescription drug is discriminatory against the male gender under the U.S. Sex Discrimination Act and that it is also unconstitutional because it prevents men from living a life guaranteed by life, liberty and the pursuit of happiness under the U.S. Constitution. When making his appeals, plaintiff appeals about the above claims could not be ruled on by the various administrative agencies because of lack of jurisdiction. [Sic]. Therefore, plaintiff beseeches the court to rule on these legal claims, and reminds the court that the government would not do to women in denying birth control pills what they have backgrounded to plaintiff as a disabled man in denying him Viagra.
Finally, plaintiff also contends that the California Medi-Cal Director has violated Title II of the Americans with Disabilities Act by denying a TAR request for plaintiff as a disabled man out of medical necessity. Plaintiff's request for Viagra is out of medical necessity because plaintiff lacks stamina and energy due to numerous conditions including major depression, Tourette syndrome, hemochromatosis, Barrett's disease, and anxiety disorder and acid-reflux.
Plaintiff seeks the following in restitution for being denied Viagra under his Kaiser Senior Advantage Medicare Part D & Medi-Cal plans:
1) That plaintiff be allowed to purchase Viagra under Medicare Part D for a bottle of six pills at $3.10 per bottle.
2) That Medi-Cal grant plaintiff's TAR requests for Viagra for a bottle of 6 pills at no charge.
3) That defendants pay plaintiff $5,000 each for punitive and compensatory damages as a result of the pain and suffering they have caused plaintiff in denying him Viagra.
Plaintiff challenges that portion of the Medicare Prescription Drug, Modernization and Improvement Act of 2003 ("MMA"), 42 U.S.C. § 1395w-101, et seq., that excludes federal and state coverage for drugs or agents used for the treatment of sexual dysfunction. The State of California, through its Medi-Cal program, has implemented the MMA through enactment of Welfare and Institutions Code § 14133.23.
B. Administrative Proceedings*fn5
As a dual eligible enrollee, plaintiff originally received prescriptions for Viagra; however, once the change in law excluding this drug became effective on January 1, 2007, plaintiff's insurance, Kaiser Permanente Senior Advantage Medicare Part D Plan, ceased coverage after a one month transitional supply was provided. (AR 153-56.) Plaintiff requested review of the noncoverage which was affirmed by Kaiser on February 18, 2007. (AR 125-28.) On March 6, 2007, plaintiff appealed the denial of coverage to an independent review entity that contracts with Centers for Medicare and Medicaid Services. (AR 105-06.) The noncoverage decision was upheld on March 15, 2007. (AR 62-65.) Plaintiff requested a hearing before an ALJ and a telephonic hearing was held on May 18, 2007. (AR 145-62.) The ALJ issued an unfavorable decision on May 23, 2007, finding that Kaiser was not required to cover plaintiff's Viagra prescription. (AR 12-18.) Plaintiff then requested review of this decision by the Medicare Appeals Council which issued a decision adopting the ALJ's decision as the final decision of the Secretary of HHS. (AR 3-6.) Plaintiff filed the instant action on October 9, 2007.
A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)
"When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Tosco Corporation v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001) (citations and internal quotations omitted).
Ordinarily, when "matters outside the pleadings are presented to . . . the court, the motion shall be treated as one for summary judgment." Fed. R. Civ. P. 12(c). However, when there is a factual question about whether a court has jurisdiction, the trial court may consider affidavits or any other evidence properly before the court. Sommatino v. United States, 255 F.3d 704, 710 (9th Cir. 2001); Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000). Thus, unlike the strict limitations under Rule 12(b)(6) against considering matters outside the complaint, a Rule 12(b)(1) motion may refer to evidence extraneous to the complaint without converting it into a Rule 56 motion for summary judgment. Sun Valley Gas v. Ernst Enters., Inc., 711 F.2d 138,139 (9th Cir. 1983).
B. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "'The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable ...