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AMERICAN SOC. OF ANESTHESIOLOGISTS v. SHALALA
March 31, 2000
AMERICAN SOCIETY OF ANESTHESIOLOGISTS, ET AL., PLAINTIFFS,
DONNA E. SHALALA, DEFENDANT.
The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Five physicians' associations ("Associations") have sued United
States Department of Health and Human Services Secretary Donna
Shalala ("Secretary") for declaratory and injunctive relief,
describing their action this way in Complaint ¶ 1 (part of the
section captioned "NATURE OF THE ACTION"):
This action challenges the methodology used by the
Secretary to implement a resource-based system for
determining practice expense relative value units,
which is one of three statutory components for
determining the level of payments to physicians under
the federal medicare program, 42 U.S.C. § 395 et
Earlier this month Secretary moved for dismissal of the action on
several grounds, most fundamentally for the lack of subject
Although Associations then proceeded to file a Fed.R.Civ.P.
("Rule") 56 motion for summary judgment (with appropriate
supporting material called for by this District Court's LR 56.1)
rather than addressing Secretary's threshold motion, this Court
promptly gave Associations' counsel a "first things first" oral
directive requiring them to respond to the jurisdictional aspects
of Secretary's motion. On the very next day this Court, having
just received and read the current issue of United States Law
Week reporting the Supreme Court's decision in Shalala v.
Illinois Council on Long Term Care, Inc., ___ U.S. ___, 120
S.Ct. 1084, 146 L.Ed.2d 1 (2000), sent a letter to counsel for
both sides requesting a submission from each of them as to any
potential impact of that decision on the jurisdictional issues in
At this point both Associations' Memorandum in Opposition to
Defendant's Motion To Dismiss (cited "Mem.") and Secretary's
Supplemental Memorandum of Defendant in Support of Defendant's
Motion To Dismiss are in hand. Associations' filing has proved
totally unpersuasive, and hence Secretary's motion to dismiss is
indeed granted on jurisdictional grounds.
Here are the relevant portions of 42 U.S.C. § 1395w-4
(hereafter cited "Subsection ___" or "Subparagraph ___," omitting
the just-listed portion of the statutory citation):
There shall be no administrative or judicial review
under section 1395ff of this title or otherwise of —
(B) the determination of relative values and
relative value units under subsection (c) of this
section. . . .
In this section, with respect to a physicians'
(B) The term "practice expense component" means
the portion of the resources used in furnishing the
service that reflects the general categories of
expenses (such as office rent and wages of
personnel, but ...
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