United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (ECF NOS. 16, 17)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
Linda Glassman seeks review of a May 9, 2018, decision of the
Department of Health and Human Services'
(“DHS”) Medicare Appeals Council denying
reimbursement for the cost of air ambulance transport from
Maui, Hawaii, to Fresno, California. ECF No. 1. In February
2019, Defendant Alex M. Azar-sued here in his official
capacity as the Secretary of DHS
(“Secretary”)-and Plaintiff each filed Motions
for Summary Judgment. ECF Nos. 16, 17. Replies from Plaintiff
and Defendant were filed in March 2019. ECF Nos. 18, 19. The
motions were taken under submission on the papers pursuant to
Local Rule 230(g). ECF No. 20. For the following reasons,
Plaintiff's Motion for Summary Judgment is DENIED and
Defendant's Motion for Summary Judgment is GRANTED.
26, 2017, Plaintiff slipped and fell while on vacation in
Maui, Hawaii. Administrative Record (“AR”), ECF
No. 15-1, at 17. An ambulance transported her 40 miles to
Maui Memorial Medical Center Outpatient Clinic. Id.
She was diagnosed with a shattered left kneecap, fractured
left femur, fractured left pelvis, dislocated left hip, and
dislocated left rectus muscles. Id. Plaintiff
asserts that she was given medical advice to return home to
Fresno to have her surgery done by a hip and knee specialist
who could also oversee her rehabilitation and post-operative
care. AR 13-14. Plaintiff's son garnered bids from three
air ambulance companies. AR 18. Plaintiff selected the lowest
of the three bids and paid approximately $50, 000 by wire
spouse submitted a claim for reimbursement to Medicare for
the cost of transportation on June 16, 2017. AR 85. On June
28, 2017, the Medicare contractor denied coverage for
Plaintiff's Medicare claim. AR 79, 81. The Medicare
program provides for five levels of appeal of an initial
determination: 1) redetermination; 2) reconsideration; 3) an
Administrative Law Judge (“ALJ”) hearing; 4) a
Medicare Appeal Council (“MAC”) hearing; and 5)
judicial review in a United States District Court. 42 U.S.C.
§§ 1395ff(a)(1)-(d)(2); 42 C.F.R. §§
405.940-.1136. Plaintiff requested redetermination, which
also resulted in a decision of no coverage on August 17,
2017. AR 63. Plaintiff sought reconsideration and was again
denied coverage on October 31, 2017. AR 50. Plaintiff
requested a decision by an ALJ based on the evidence in the
record, waving a hearing. AR 17. The ALJ also denied coverage
on January 18, 2018. AR 26. Plaintiff appealed to the MAC,
who adopted the ALJ's decision denying coverage on May 9,
2018. AR 7. This final decision from the MAC is the official
decision of the Secretary. 42 C.F.R. § 405.1136(d). This
exhausts Plaintiff's administrative remedies and permits
her to seek judicial review. 42 C.F.R. § 405.1136(a).
STANDARD OF DECISION
beneficiary may seek judicial review of an unsatisfactory
determination regarding their Medicare benefits so long as
they first exhaust the administrative appeals process. 42
U.S.C. § 1395ff(b)(2)(C); 42 C.F.R. § 405.1136.
Judicial review of an exhausted Medicare claim dispute is
governed by the Administrative Procedure Act, 5 U.S.C.
§§ 701-706, which provides that an agency's
decision “will be affirmed unless it is arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.” Int'l Rehab. Scis.
Inc. v. Sebelius, 688 F.3d 994, 1000 (9th Cir. 2012)
(explaining review standard established by 5 U.S.C. §
706) (internal quotation marks omitted). The findings are
conclusive if they are supported by “substantial
evidence, ” which is defined to mean “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. An
agency's determination can be overturned as arbitrary and
[T]he agency relied on factors which Congress had not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
Nat'l Ass'n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 645 (2007) (internal quotation
burden of proving each element of a Medicare claim lies with
the beneficiary by a preponderance of the evidence, which
must be satisfied through the submission of sufficient
competent evidence in accordance with Medicare rules.
See Sections 1814(a)(1), 1815(b), and 1833(e) of the
Social Security Act; 42 C.F.R. § 424.5(a)(6), 42 C.F.R.
§ 405.1018, 42 C.F.R. § 405.1028, and 42 C.F.R.
§ 405.1030. Payment is contingent upon the beneficiary
meeting their burden of proof. In the Case of Custom
Healthcare, No. M-11-1771, 2012 WL 1671506, at *2
(H.H.S. MAC Mar. 2, 2012).
The Secretary's Determination to Deny Payment Due to
Regulations Limiting Coverage to Transport to the Nearest
services are only covered by Medicare if they meet regulatory
requirements. 42 U.S.C. § 1395x(s)(7). In this case
coverage was denied by the MAC based on 42 C.F.R. §
410.40(e)(1), which provides that ambulance transportation is
only covered “[f]rom any point of origin to the nearest
[facility] that is capable of furnishing the required level
and type of care.” AR 5. See also Downing v.
Dep't of Health and Human Servs., No. 1:12-CV-22,
2013 WL 1281795, at *3 (N.D. Ind. Mar. 6, 2013) (supporting a
decision denying coverage pursuant to § 410.40(e)(1)
because the destination was not the proper type of facility);
In the Case of Eagle Med, No. M-12-1937, 2012 WL
10067674, at *2-3 (H.H.S. MAC, Nov. 8, 2012) (denying
coverage for transport beyond the nearest appropriate
facility). This rule is further clarified in the Medicare
Benefit Policy Manual, 100-02, Chapter 10, Section 20, item #5,
which says that if the patient is not transported to the
nearest appropriate facility, Medicare will make partial
payment, but only the amount that would have been payable had
the patient been transported to the nearest appropriate
facility. An “appropriate facility” is defined in
accordance with 42 C.F.R. § 410.40(e)(1) by the Medicare