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AMERICAN SOC. OF ANESTHESIOLOGISTS v. SHALALA

March 31, 2000

AMERICAN SOCIETY OF ANESTHESIOLOGISTS, ET AL., PLAINTIFFS,
V.
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. § [1]395 et seq.*fn1

Earlier this month Secretary moved for dismissal of the action on several grounds, most fundamentally for the lack of subject matter jurisdiction.

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 this case.

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):

Subsection (i)(1):

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. . . .

Subsection (c)(1)(B):

In this section, with respect to a physicians' service:
(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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