The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the Motion to Dismiss (Doc. 3) filed by Defendant Kaiser Foundation Health Plan and the Motion to Amend the Complaint (Doc. 6) filed by Plaintiff Roy Madsen.
On December 3, 2008, Plaintiff filed a Complaint in this Court against Kaiser Foundation Health Plan pursuant to Section 1852(g)(5) of the Social Security Act, 42 U.S.C. 1395w-22(g)(5). (Complaint ¶ IV.) Plaintiff seeks judicial review of the final decision of the Medicare Appeals Council. (Id.) The Complaint alleges that Plaintiff is enrolled in a Medicare Advantage (MA) plan offered by Kaiser Foundation Health Plan. (Compl., Ex. 4 at 2.) In 2007, Plaintiff requested Kaiser's authorization, coverage, and payment for two procedures:
(1) coverage of and payment for vascular surgery furnished to the beneficiary at the Mayo Clinic in Rochester Minnesota on January 26, 2007, and (2) pre-service authorization of coverage for a left total hip arthroplasty at the Mayo Clinic. (Id.) Kaiser denied coverage of both procedures and Plaintiff appealed. (Id.) On August 10, 2007, Maximus Federal Services, an independent health dispute resolution agency, affirmed Kaiser's denial of coverage for both procedures. (Id.)
On March 13, 2008, Plaintiff appealed to Office of Medicare Hearings and Appeals and requested a hearing for reconsideration before an Administrative Law Judge (ALJ) pursuant to section 1869(b)(1)(A) of the Social Security Act. (Compl., Ex. 1.) On April 21, 2008, the ALJ issued a written decision denying Plaintiff's claim for reimbursement. (Compl., Ex. 2.)
On June 17, 2008, Plaintiff filed a request for review of the ALJ's decision with the Medicare Appeals Council. (Compl., Ex. 3.) On October 6, 2008, the Medicare Appeals Council issued a written decision adopting the decision of the ALJ. (Compl., Ex. 4.) The decision of the Council was sent to Plaintiff and Plaintiff's attorney along with a "Notice of Decision of Medicare Appeals Council on Request for Review." (Id. at 1.) The Notice stated the following:
If you desire court review of the ALJ's decision and the amount in controversy is $1,180 or more, your may commence a civil action by filing a complaint in the United States District Court for the judicial district in which your reside or have your principal place of business. See § 1852(g)(5) of the Social Security Act, 42 U.S.C. § 1395w-22(g)(5). The complaint must be filed within sixty days after the date this letter is received. It will be presumed that this letter is received within five days after the date shown above unless a reasonable showing to the contrary is made.
If you cannot file your complaint within sixty days, you may ask the Medicare Appeals Council to extend the time in which you may begin a civil action. However, the Council will only extend the time if you provide a good reason for not meeting the deadline. Your reason(s) must be set forth clearly in your request.
If a civil action is commenced, the complaint should name the Secretary of Health and Human Services as the defendant and should include the HIC number and docket number shown at the top of this notice. The Secretary of Health and Human Services must be served by sending a copy of the summons and complaint by registered or certified mail to the General Counsel, Department of Health and Human Services, 200 Independence Avenue, S.W., Washington, D.C. 20201. In addition, you must serve the United States Attorney for the district in which your file your complaint and the Attorney General of the United States. See rules 4(c) and (i) of the Federal Rules of Civil Procedure and 45 C.F.R. § 4.1. You must also notify the other party of your appeal pursuant to section 1852(g)(5) of the Social Security Act. (Compl., Ex. 4 at 1-2.) The Notice was dated October 6, 2008. (Id. at 1.)
On December 24, 2008, Defendant filed a motion for dismissal of Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 3.) Plaintiff filed an opposition to the motion to dismiss and Defendant filed a reply. (Docs. 5, 8.)
On January 16, 2009, Plaintiff filed a motion to amend his complaint. (Doc. 6.) Defendant filed an opposition to the motion to amend and Plaintiff filed his reply. (Docs. 12, 13.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss under Rule 12(b)(6), the court reads the complaint in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007). "Allegations in the complaint, together with reasonable inferences therefrom, are assumed to be true for purposes of the motion." Id. Courts may "consider certain materials -- documents attached to the complaint, documents incorporated by reference in the complaint, or matters ...